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plaintiff, Mary Gibson, John Gell, Hannah Welburne, and Susannah Idle, are brother and sisters of Thomas Gell, deceased, and the defendant is widow, and an executrix, of the said Thomas Gell, who made his will, duly executed for the passing of real estates, bearing date 4th January, 1821, as follows :-I Thomas Gell, of the township of Horsley, in the parish of Almondbury, in the county of York, shopkeeper and schoolmaster, being sane in mind but weak in body, do make and ordain this my last will and testament as follows: In the first place, I give and bequeath to my daughter, Mary Gell, all the houses, outhouses, garden, and other property, which I hold under the trustees of the poor of the township of Almondbury, for the term of nine hundred and ninety-nine years. And I also give one half part of my books to my daughter Mary Gell aforesaid ; the other half to my widow Sarah Gell, to be equally divided by Thomas Sanderson. If my daughter Mary should happen to die unmarried, it is my will then, that her part aforesaid shall be equally divided amongst all my brothers and sisters, share and share alike by lot. All the rest and remainder of my property, I give and bequeath to Sarah Gell, my widow. Also I do make and ordain Sarah Gell, my widow, and Thomas Sanderson, my executrix and executor of this my last will and testament, in writing, &c.” The testator died, without revoking or altering this will, and possessed of all the property mentioned therein, on the 18th August, 1822, leaving the lessors of the plaintiff, the defendant, and his daughter Mary, him surviving. His daughter died in the month of November, 1822, unmarried, under age and intestate. The defendant has continued in possession of the whole of the leasehold property mentioned in the will, ever since the testator's death. The property in question consisted of four tenements, and outhouses, and one garden to the whole. The question at the trial was, whether the bequest to the lessors of the plaintiff, applied to the books only, or to the leasehold property also, and the learned Judge being of opinion that it applied to both, directed the

jury to find a verdict for the plaintiffs, with liberty to the defendant to move to enter a nonsuit, and




F. Pollock now moved accordingly. This case depends entirely upon the construction which the Court may think right to put upon the will of Thomas Gell, and two questions arise upon it: first, whether the bequest of “ one half part, &c.” to the daughter, who died unmarried and under age, past by her death to the defendant, the widow, under the residuary clause, or to the brother and sisters of the testator; and secondly, whether the words “ half part” in the bequest to the latter, applies to the personal property, the books only, or to the leasehold property also. The language of the will is certainly ambiguous, and admits of much doubt as to its true construction and the real intent of the testator. It would rather seem, however, that the bequest upon which this action turns, is confined to the personal effects, because a mode of division is pointed out and directed as to them, namely, by lot; but no such direction is given as to the houses, &c., for a division by lot, though natural and proper enough with respect to a quantity of books, would be most absurd and impracticable if applied to houses and a garden. “Her aforesaid part,” referring to the daughter, must mean her share of the books; and therefore that only has passed to the lessors of the plaintiff by her death, and the leasehold estate has vested in the widow by the residuary clause. This seems the only reasonable construction of the will.

ABBOTT, C. J.-I am of opinion that the testator, in using the words “ her part aforesaid,” meant to say, “ that part of my property, which I have before given to my daughter,” and not to confine the expression to the share of the books, but to embrace the whole of what he had given her by the previous bequest. I think this construction is supported by considering the nature of the property in question. It is given over in the event of the daughter dying unmar


ried; and it is much more usual to give over property of this description, which is in its nature freehold and permanent, upon such an event, than to give it to the widow. The likelihood and probability of such an intention is fairly justified by the language of the will.


0. GELL.

HOLROYD, J.-I am of the same opinion. I think the words "

part aforesaid,” mean the whole of that part of the testator's property which he had given to his daughter, and that he did not mean to give over to his brothers and sisters the daughter's share of the books only. It is more likely that he should give over the perpetual part of the property to his brothers and sisters, upon the event of his daughter's dying unmarried, than to his widow. No sensible reason can be suggested why he should give over only the daughter's share of the books, and not the other, which is the more important and permanent portion of the property. Giving the most sensible and natural construction to the words, I think “her part aforesaid” must be understood to mean the whole of that portion of the property which had been given to the daughter.

LITTLEDALE, J., having been of counsel in the cause, declined giving any opinion.

BAYLEY, J.-I also agree in thinking that the words

part aforesaid” apply to all the property which the testator had previously given to his daughter; and in consequence of her having died unmarried the whole will go to the lessors of the plaintiff. It appears to me, that there are words in the will which sufficiently indicate that such was the intention of the testator by the use of the word “part.” By his will he gives his daughter certain houses, &c. specifically, and then he divides his books between his daughter and his wife; and all the rest and residue of his property, he gives to his widow. But before he comes to the residuary clause, he says, “ If my daughter dies unmarried, her

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part aforesaid shall be equally divided amongst my brothers and sisters.” Now the words “ her part” mean the whole of her share of the property, unless there is something to limit their operation to her part of the books only. The books are to be divided between the daughter and the widow, by a particular individual named. But the share of the property, which is to go to the brothers and sisters in the event of the daughter's dying unmarried, is to be divided amongst them by lot. Mr. Pollock argues, that the division by lot is much more applicable to the books than to the leasehold property. In this particular case, I think the division by lot is much more applicable to the latter description of property, and is certainly a very reasonable mode of division, considering the description of property to be divided. The testator had certain land, on which he had built four tenements of the same description, with one garden belonging to the whole. He has four brothers and sisters, and the tenements being liable to be allotted to different proprietors, he says to them," you shall chuse by lot which shall take the garden, along with one of the houses." I think the choice by lot confirms the construction which we are putting upon this will, and is more applicable to the division of the leasehold property than to the books.

Rule refused.

A. DUNCAN, one, &c. v. Carlton.


May 31. CAMPBELL, on a former day, obtained a rule visi for Upon essoign setting aside the interlocutory judgment signed by the plain- the plaintiff tiff in this case, as for want of a plea, with costs, for irregu- cannot sign larity. On the first day of this term (5th May) the plaintiff want of a plea,

judgment for served the defendant with a rule to plead within four days to until the after

noon of the a declaration delivered before the essoign day of the term. 5th day after At the opening of the office on the morning of the 11th May, the rule to

plead is the plaintiff signed judgment as for want of a plea, no plea served. having been then pleaded. It was contended that judgment was signed too soon, because in the case of an essoign decla


ration the defendant has four days, exclusive of the first day of the term, to plead, and that the plaintiff in this case could not sign judgment until the opening of the office in the afternoon of the sixth day of the term.



Patteson shewed cause, and contended that there was no sensible reason why the defendant should have until the afternoon of the sixth day of the term to plead in the case of essoign declarations, any more than in the case of a declaration served in term. Here the defendant had four days exclusive to plead, and therefore there was nothing irregular in the plaintiff's signing judgment on the morning of the 11th May. He cited Tidd, 400. 7th ed. and Messure v. Britten (a).

Campbell, contra, referred to the clerk of the rules to certify the practice (b).

ABBOTT,C.J. (after conferring with the clerk of the rules) said—The officers of the court report to us that the plaintiff signed his judgment too soon. It certainly is convenient that there should be the same rule of practice in the case of a declaration delivered before the essoign day of the term, as in the case of declarations delivered in the progress of the term, otherwise parties may be misled by a distinction for which certainly no satisfactory reason can be assigned. However, acting upon the practice as certified to us by the officers of the court, we must make the rule absolute for setting aside the judgment in this case.

HOLROYD, J. (c)—When a rule to plead is given, the day on which it is given, is always exclusive, and therefore in the case of a four day rule, the defendant has the fifth day

(a) 2 H. Bl. 616.

(6) Mr. Wood referred to a manuscript note of a case in point, as follows:-Mic. 48 G. 3. Lingard v. Peto. Mr. Manley inoved to set aside a judgment signed too soon. The Master (Forster) told the court, tbat the extension of time to sign judgment until the afternoon, was only on rules to plead given on the first day of the term. Rule granted. See Tidd, 7th ed. 476.

(c) BAYLEY,J. was gone to chambers.

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