The defendants, Samuel Platt and Elizabeth his wife, put in their demurrer to this bill, for want of equity; and the question to be determined by the Court was, whether those estates situate in the county of Hereford, but which were not within the city or liberties thereof, passed to the trustees, or whether they belonged to the defendant Elizabeth Platt, as residuary devisee, under the will of her father, the

testator.

The demurrer was argued at considerable length, by Hodgson and T. H. Hall, and in support of which the following cases were cited: Doe v. Greathed (8 East Rep. 91); Doe v. Lord Lucan (9 East, 448); Doe v. Greening (3 Man. & Selw. 171); Doe v. Lyford (4 Man. & Selw. 550); Pogson v. Thomas (6 Bing. N. C. 337); Doe v. Bower (3 Barn. & Adol. 453); Anon. (3 Dyer, 261 b).

Bethel and Bacon, for the plaintiffs.-If the construction attempted to be put upon the will by the defendants were correct, it would appear that the testator had inserted the words "county of Hereford" for no reason whatever, for the testator had no freehold property within the city of Hereford; the only freehold he was possessed of within the liberties consisted of a house and garden; he had also certain copyholds and leasehold premises within the liberties, but none whatever in the city. The testator was seized of freeholds in the county of Hereford, and he devises all his freehold estates, not having any in the city. What property, therefore, can answer those estates described in the will except the freeholds which he had in the county? By having recourse, however, to punctuation, the devise will appear plain and consistent, and by this means the estates of the testator in the county of Hereford will pass agreeably to his manifest intention. For example, take the first words of the testator's will as shewing his general intention," I give, devise, and bequeath all my freehold, copyhold, and leasehold messuages, lands, and hereditaments" (then immediately follows the description) "in the city of Hereford, or the liberties thereof, in the county of Hereford, and my two leasehold houses on Ludgate-hill," the passage will thus, without doing violence to the rules of grammar, seem clear and consistent with the intention; for what is more usual in enumerating particulars of which the whole is composed, than to omit inserting the conjunctive. particle between each particular, and place it only between the last one and that which immediately precedes it? It seems perfectly absurd to suppose the testator intended merely to have devised those small estates in the city and liberties thereof, for this property, excluding as it did, Pool-house, which he gave as a residence for his daughter (Elizabeth Platt), would not suffice, if converted into money, to pay for the renewal of the leases of Pool Farm and the two houses on Ludgate-hill. But we submit that, whatever doubt may be raised as to the construction to be put upon the words of the will, the language of the codicil places the whole matter beyond a dispute; for in the latter instrument he refers to the power of sale contained in his will, as comprising also his estates in the county of Hereford; for he says, "The sale thereby authorized of Pool-house, and my other estates in the city and county of Hereford." The power of sale also extended over the whole of the property devised to the trustees; the freehold estate, therefore, situate in the county of Hereford, must be taken to be well devised to the trustees for the purposes of his will.

The VICE-CHANCELLOR.-Although this is a legal question, I do not feel any reluctance in giving my opinion, because the case is clear. As I collect from the plaintiff's statement, the testator was seized of a freehold estate in the county of Hereford; he also had a freehold estate in the county of Hereford, not within the city or liberties of Hereford; and he also had a freehold estate in the parish of Lugwardine, in the county of Hereford. Two acres of this, it is said, were copyhold, twenty-four acres were held upon lease during his life, and the residue was freehold ; so that he would have two acres of copyhold in the parish of Lugwardine, in the county of Hereford, not within the city or liberties. In addition to these, the testator had a freehold estate, called Pool-house, within the liberties; certain copyhold and leasehold cottages within the liberties; also a leasehold estate within the liberties; this latter was called Pool Farm, comprehending, however, a small portion of land in a different parish, together with open lands which were not within the city

or liberties of the city. Should any question arise upon that small portion, that must be the subject of further argument. I only now give my opinion upon the question, whether the property described in the bill as being in the county of Hereford, but not within the city or liberties, passed by the first devise; or, in other words, whether the Ocle Pitcher estate, and that part of it which lies in the parish of Lugwardine not within the city or liberties, did pass by the first devise. The testator, after having disposed of the different properties which I have before mentioned, devises as follows:-"All my freehold, copyhold, and leasehold messuages, lands, and hereditaments, in the city of Hereford, or the liberties thereof, in the county of Hereford, and my two houses on Ludgate-hill," to the uses mentioned in his will. It has been contended, that by the above devise the testator's freehold and copyhold in the county of Hereford, not within the city or liberties thereof, passed as well as that which was situate within the city and liberties. Now the testator has, in that sentence, devised two sets of property, of which he has given distinct descriptions: for instance, he has given all his freehold, copyhold, and leasehold premises, in the city of Hereford, or the liberties thereof, in the county of Hereford (that is one devise), and his two leasehold houses on Ludgate-hill (that forms another devise). Therefore, to arrive at a decision as to what is the meaning of the words "county of Hereford," you must not construe the passage as forming one sentence, for the testator has broken the description of the two things, the first ending with the words "county of Hereford," and has given a separate description of his leasehold houses on Ludgate-hill. Thus we are confined exclusively to the terms of the first sentence; and I am of opinion that, according to the clear meaning, you cannot construe that as if the word "and" were inserted between the words "thereof" and "in," as was contended at the bar. It must, therefore, be taken as if the words were "in the city of Hereford or the liberties thereof." The consequence of such a construction will be, that no property in the county of Hereford passed under that devise but what was situate in the city of Hereford, or the liberties thereof. As to the authority given to the trustees to make leases, which was a mere general power, and applicable to whatever was before given, I do not think that circumstances can allow a more ample signification to the first sentence. In that part of the will which relates to the renewal of his leases, he has described the leasehold estate of Pool Farm, as being situate in the parish of St. Martin, in the city of Hereford, but it is stated in the bill to be within the liberties. Upon looking at the codicil, we find the following words: 66 Upon, with, and subject to the same trusts, powers, and provisions as are in my said will declared concerning the proceeds of the sale thereby authorized of Pool-house, and of my other estates in the city and county of Hereford." There he takes notice of part as being in the city of Hereford, and it was reasonable to conclude that the other part was within the county of Hereford. It seems to my mind that the codicil confirms the construction of the will. Had it been a simple direction to sell his estates in the city and county of Hereford, and invest the proceeds thereof, it might then have been contended that such a direction was intended to have had a more extended meaning, but the testator has here referred to the sale authorized by his will, therefore it cannot have a more extensive operation than the sale authorized by the will itself. It appears to me to be perfectly clear that the words in question did not pass any estates in the county of Hereford to the trustees but what were also in the city or liberties thereof. They must, therefore, go to the testator's daughter as residuary devisee.

Demurrer allowed.

THE VICE-CHANCELLOR OF ENGLAND.

May 25, 29, 31, and June 1.

JOHN SMITH and RICHARD STRACHEY, Plaintiffs, v. MARIA LUCY OAKES, GEORGE Musgrave, THOMAS GEORGE ALEXANDER OAKES, THOMAS ALEXANDER OAKES and CLARA SOPHIA, his Wife, RICHARD FRANCIS OAKES, CLARA SOPHIA OAKES, the younger, JULIA LEONORA OAKES, and CATHARINE OAKES-Defendants by Original Bill:

AND

JOHN SMITH, Plaintiff, v. MARIA LUCY OAKES, GEORGE M. MUSGRAVE, RICHARD STRACHEY, CLARA SOPHIA, the Wife of THOMAS ALEXANDER OAKES, THOMAS GEORGE ALEXANDER OAKES, RICHARD FRANCIS OAKES, CLARA SOPHIA OAKES, the younger, JULIA LEONORA OAKES, and CATHARINE MATILDA OAKES, infants out of the jurisdiction, and THOMAS ALEXANDER OAKES, since deceased-Defendants by amended and Supplemental Bill. (a)

Marriage settlement-Construction of the words " joint and natural lives”—Survivorship—

Alleged imposition.

Upon an intended marriage between T. O. and E. Á. C., a sum of money was directed to be invested in the purchase of certain stock, and that the same should stand in the names of trustees, upon the trusts (among others) following; viz. "for the use and behoof of T. A. and E. A. C., during their joint and natural lives; and in case the said E.A.C. should happen to survive the said T.A., her said intended husband, then that she should be entitled to receive the interest arising on such funds, or the rents or other produce of the same, yearly and every year, during the term of her natural life, in full of her jointure, and in lieu, bar, and satisfaction of her dower and thirds at common law; the interest, rent, or other produce to be paid by even or equal half-yearly payments on every 25th day of December and every 25th day of June. And upon further trust, to the issue of the said intended marriage, and to be equally divided between them, share and share alike, the portion of each child to be paid and payable when such child shall attain his or her age of 21 years or be married; and the portion or portions of any child or children dying before he, she, or they shall have respectively attained the said age of 21 years or be married, shall be equally divided among the survivors. And if all the children of such marriage except one shall happen to die, then and in such case such child shall, on his or her attaining the said age of 21 years or being married, receive the whole of the produce of the fund. And in case there should be no issue of the marriage, or, being issue, they should all die before their age of 21 years or days of marriage, then and in such case the said T.0. to have power to sell, bequeath, or otherwise dispose of the produce of the said principal sum, as being in such event his sole and absolute property.

Held, that the words “joint and natural” must be taken with reference to the other parts of the settlement and the general scope of the settlor; that therefore the Court could not exclude the words "natural lives," but must endeavour to give them a meaning; T.O. survived E.A.C. Held, that the power given to T.O. to dispose of the property as his own in the case of there being no issue of the marriage, plainly indicated that his interest was not to cease immediately upon E .A.C.'s decease, and that, therefore, "natural lives" being superadded to “joint," must be taken as signifying the natural lives of both, and not merely during their joint lives.

Held also, that the clause in favour of the only surviving child, in case it should attain the age of 21 years or be married, would, if taken literally, disable the Court from hearing the question raised until it should be seen who was the survivor of the children of the marriage.

SHORTLY on Thomas HORTLY before the 10th June, 1786, a marriage was agreed on between Thomas Oakes, then resident in the East Indies, and senior merchant in the East-India Company at their presidency at Fort St. George, and paymaster of Palamcottah, and Elizabeth Ann Cosby, spinster, daughter of Colonel Sir Henry Augustus Montague Cosby, both resident in the East Indies, and in consideration of the marriage, and of 6,400 star pagodas, the marriage portion of Elizabeth Ann Cosby, a sum of 25,000 star pagodas was agreed to be settled as a provision or jointure for her in the event of her surviving her intended husband, and as a provision for the children of the marriage. In pursuance of this agreement, Sir Henry A. M. Cosby, on or about the 10th of June, 1786, paid the sum of 6,400 star pagodas to Thomas Oakes, and the latter about the same time paid the sum of 25,000 star pagodas to James Henry Casamaijor, John Chamier, and Josias Du Pré Porcher (resident in the East Indies), on behalf of themselves and of Thomas Parry and John Bland (both residing in England), and that thereupon an indenture of settlement, dated the 10th June, 1786, was

(a) Reported by GEO. GOLDSMITH, Esq. Barrister-at-law.

inade between the above parties residing in India, and the same was shortly after executed by Parry and Bland in England. Wherein, reciting the intended marriage, and that the sum of 6,400 star pagodas was that day paid by Sir Henry Augustus M. Cosby to the said Thomas Oakes, as the marriage portion of Elizabeth A. Cosby, the said T. Oakes had agreed that the sum of 25,000 star pagodas should be settled and assured as and for a provision or jointure for the said Elizabeth Ann Cosby in the event of her surviving her said intended husband, and as a provision for the children, issue of the marriage, in manner afterwards declared, it was witnessed that the said Thomas Oakes had that day paid into the hands of James Henry Casamaijor, John Chamier, and Josias Du Pré Porcher, the sum of 25,000 star pagodas, the receipt whereof on their own part, and on the part of T. Parry and J. Bland, the other trustees in England, they thereby acknowledged and thereby declared that the two several sums of 6,400 star pagodas and 25,000 star pagodas were paid upon the trusts, and for such intents and purposes, and subject to such provisions, powers, limitations, and agreements, among certain others, following; viz. that the trustees in India should, as soon as conveniently, remit the sum of 25,000 star pagodas, by bills of exchange, to the trustees in England, who were to invest the net produce of such remittance in the public or government funds, or in East-India stock, or in such other good and unexceptionable securities, or in the purchase or mortgage of freehold, copyhold, or leasehold estates, with the consent and approbation of Thomas Oakes, provided he executed any power or deed to that effect; and in default of his giving such instructions, that then the English trustees should invest the produce of the said remittance in such manner as the whole number of trustees together, or the majority of them, should direct and appoint. The deed of settlement then continued as follows:-"And it is hereby declared that the interest, rent, or other yearly produce arising therefrom, or to grow due thereon, is to be for the use and behoof of the said Thomas Oakes and Elizabeth Ann Cosby during their joint and natural lives; and in case the said Elizabeth A. Cosby should happen to survive her said intended husband, Thomas Oakes, then and in such case the said Elizabeth Ann Cosby shall be entitled to receive the interest arising on such funds, or the rents or other produce of the said 25,000 pagodas, yearly and every year, during the term of her natural life, which said interest, rents, or other produce, is to be in full of her jointure, and in lieu, bar, and satisfaction of her dower and thirds at common law, which she could or might otherwise have claimed of, in, to, or out of all and every or any the manors, messuages, lands, tenements, or hereditaments whereof the said Thos. Oakes, her intended husband, shall be seized during the coverture between them; and the said interest, rents, or other produce is to be paid by even and equal half-yearly payments on every 25th day of December and every 25th day of June, the first payment thereof to be made on the first of the said days or times of payment which shall next happen after the decease of the said Thomas Oakes.

"And upon this further trust, that they, the said Thomas Parry, John Bland, James H. Casamaijor, John Chamier, and Josias Du Pré Porcher, and the survivors or survivor of them, and the executors or administrators of such survivor, shall stand and be intrusted with the said funds, purchases, and mortgages, and the interest arising therefrom, to the use of the issue of the said intended marriage, and to be equally divided between them, share and share alike; the portion of each child to be paid and payable when such child shall attain his or her age of twenty-one years or be married, and the portion or portions of any child or children dying before he, she, or they shall have respectively attained the said age of twenty-one years, or be married, shall be divided equally among the survivors; and if all the children of such marriage, except one, shall happen to die, then and in such case such child shall, on his or her attaining the said age of twenty-one years, or being married, receive the whole of the produce of the said sum of 25,000 star pagodas. And it is hereby further declared, that in case there should not be any issue of the said marriage, or being issue, they should all die before their age of twenty-one years or days of marriage, then and in such case the said Thomas Oakes shall have power to sell, bequeath, or otherwise dispose of the produce of the said principal sum of 25,000 star pagodas, as being, in such event, his sole and absolute property, any thing hereinbefore contained to the contrary thereof in any wise

notwithstanding. And it is hereby further declared, that the said Elizabeth Anr Cosby shall have free and absolute power and dominion over such jewels as may have been for her own use during the lifetime of the said Thomas Oakes."

The marriage was duly solemnized between the said Thomas Oakes and Elizabeth Ann Cosby, in the East Indies, shortly after the date of the indenture or deed of settlement, and in or about the month of June, 1786. The Indian trustees, in pursuance of the trust declared by the said indenture of settlement, duly remitted the sum of 25,000 star pagodas to the trustees in England, who invested the clear proceeds thereof in the purchase of 11,8867. 1s. 7d. Bank four per cent. annuities, in the joint names of Thomas Parry and James Henry Casamaijor, upon the trust declared in the said indenture of settlement.

The dividends of the 11,886/. 1s. 7d. Bank annuities were, in pursuance of the trusts of the settlement, paid to Thomas Oakes from time to time, during the joint lives of himself and Elizabeth Ann, his wife, who died in the year 1798, leaving her husband, Thomas Oakes, her surviving.

There were only four children issue of the marriage, viz. the defendant Thomas Alexander Oakes, the eldest son Henry Robert Oakes, Richard Montague Oakes, and Caroline Eliza Oakes.

James Henry Casamaijor died in 1815, leaving Thomas Parry, his co-trustee of the fund, surviving, who also died the year following, having appointed Daniel Richard Warrington, Richard Twining, and his son Richard Parry the executors of his will, who proved the same in the proper Ecclesiastical Court; Richard Parry died shortly afterwards, leaving Daniel Richard Warrington and Richard Twining surviving.

The dividends of the 11,886/. 1s. 7d. continued to be paid to Thomas Oakes after his wife's decease, by the trustees, until the death of Thomas Parry, and afterwards by the executors; and Thomas Oakes from time to time, after his wife's decease, laid out and expended large sums of money on account of his sons, Henry Robert Oakes and Richard M. Oakes, and otherwise contributed largely to their advancement in the world. All the four children of the marriage attained the age of twenty-one years before the year 1823.

Henry Robert Oakes having in May, 1823, been restored by the Court of Directors of the East-India Company to an office in their service, from which he had been for some time suspended, went from England to India for the purpose of resuming the duties of his office; and in order to enable him so to do, he, shortly before the above period, applied to Daniel Richard Warrington and Richard Twining to transfer to him one-fourth of the said stock or Bank annuities; and they were, about the same time, applied to by Richard Montague Oakes to transfer to him his one-fourth share of the said Bank annuities, to enable him to enter into certain arrangements which he was desirous to adopt in respect of his future prospects; whereupon Henry Robert Oakes and Richard Montague Oakes were requested by the father, Thomas Oakes, to relinquish in his favour all claims and demands of the dividends in respect of the Bank annuities, which had from time to time been paid him since the death of his wife, Elizabeth Ann; they were also requested by Warrington and Twining to release them from all liabilities and claims in respect of the dividends. This they, Henry Robert Oakes and Richard Montague Oakes, consented to do, and, accordingly, Warrington and Twining, in the month of May, 1823, transferred into the name of Henry Robert Oakes the sum of 2,9717. 10s. 4d. Bank annuities, being one-fourth of the whole fund, who thereupon discharged the said trustees and his father, Thomas Oakes, from all claims and demands in respect of the same.

About the 25th of June following, Richard Montague Oakes gave a similar discharge, and directed the trustees to pay to his father, Thomas Oakes, the dividends and yearly proceeds which, during the life of Thomas Oakes, should become payable upon his, Richard Montague Oakes's, share of the Bank annuities; and the sum of 2,9711. 10s. 4d. Bank annuities was, some time after, transferred into his name in manner hereinafter mentioned.

In the same year, T. Oakes and the trustees of the fund, Warrington and Twining, applied to Thomas Alexander Oakes and Caroline Eliza Oakes to deal with their two fourth shares in precisely the same manner as their brother Richard M. Oakes had done in favour of their father, T. Oakes, which was agreed to, upon condition that the