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Exch. of Pleas, Hardwicke's judgment in Corriton v. Hellier (a), that, in 1831.
construing a will, conjecture must not be taken for implication; but necessary implication means, not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator cannot be supposed.”.
Lord LYNDHURST, C. B.-This testator gives and bequeaths to his granddaughter Mary, the house called Plasbach, where widow Anthony now lives; and, after her death without issue, he gives and bequeaths the said house to her brother Walter Rees, to be freely possessed and enjoyed, his heirs and assigns, for ever. Now, if the will stopped here, there could be no doubt but that it would pass the legal estate to the granddaughter, with remainder to Walter Rees. But the will must be taken altogether; and we find, in a subsequent clause, that the testator gives and bequeaths to his well-beloved wife the sum of 201., yearly and every year, as long as she lives, to be paid out of the freehold estate and the lease of Penlan, by trustees thereinafter named, and, at the same time, notwithstanding there will be nothing to the grandchildren as long as their grandmother lives. Therefore, the estate originally given is qualified and restrained, and must be construed as subject to this clause. Now, the trustees cannot perform the duties imposed upon them, unless the legal estate is vested in them. If the rents and profits should amount to more than sufficient to pay the annuity of 201., they would be bound to pay over the surplus to the grandchildren. The trustees, therefore, will take the legal estate, and the grandchildren will have the beneficial interest after the 201. annuity is satisfied, and thus both the provisions in the will are reconciled.
(a) 2 Cox, 340, cited in 4 Bro. C.C. 460, 461, 2 Burr. 923, 3 Burr. 1631.
BAYLEY, B.-I am of the same opinion; and I think, Exch. of Pleas,
1831. that, by the construction we adopt, we give effect to every part of the will, and that we should not do so if we decided in favour of any other construction. It is clear, that we are bound to look at all the parts of the will, to see whether a provision which may at first appear absolute, be not qualified by some subsequent clause. If the will stopped after the devise to the grandchildren, the devise to them would stand unqualified. I cannot say that it would be an express devise of a legal estate, because there is no expression to shew that a legal estate is meant; and, therefore, Mr. Maule's argument is fallacious in this respect.
Is there then any subsequent qualification? Suppose it had been “subject to the qualifications hereinafter mentioned.” But these words are necessarily implied.
Now, what is the qualification? “ I give and bequeath to my wife (not to trustees, according to the argument, that they might take a rent-charge,) the sum of 201. yearly, &c., to be paid out of the freehold estate and the lease of Penlan, by trustees hereinafter named, and, at the same time, notwithstanding there will be nothing to the grandchildren as long as their grandmother lives."
It is not necessary to stop to consider whether there is any trust for the payment of debts, but we are to see what the trustees are directed to do; for, when trustees are directed to do any thing for the performance of which the legal estate is requisite, then they are to have the legal estate. Now, here, they are to pay out of the freehold estate; how can they do so except by taking the rents and profits, and paying the annuity out of them. So much as is requisite to satisfy the annuity is to be paid by them, and perhaps they would be bound to pay what remains, if any, to the grandchildren. It is said, that it is not necessary to imply a legal estate in the lands, but that holding the trustees to have a rent-charge would effectu
Erch. of Pleas, ate the objects of the testator. In my opinion, however, 1831.
the power which this testator meant the trustees to have, ANTHONY
was not one for the execution of which they would be Rees. forced into a Court of Equity, or be driven to distrain.
If trustees are to pay out of the lands, there are many cases which shew that they must take the legal estate. Upon the whole, I entertain no doubt that the legal estate was vested in the trustees, it being necessary for the performance of their duties. Doe v. Woodhouse goes almost the whole length of the present case,
GARROW, B., concurred.
BOLLAND, B.-It has been contended, that the trustees mentioned in this will were only intended to be supervisors, or friendly arbitrators, to constitute a species of domestic forum. But if we look at the earlier parts of the will, we shall find that the trustees are mentioned again and again, and in a way which shews that they have duties to perform as trustees. Thus, the trustees are, in certain events, to take security for the personalty, to take possession of it, and to keep it for the grandchildren. It is not until the end of the will that the words, “ to look in that justice should be duly administered,” are introduced. I cannot distinguish this case, in principle, from Doe v. Woodhouse. It being necessary for the performance of their duties that the trustees should take the legal estate, I am of opinion that it did not vest in Walter Rees, and, consequently, that this rule must be discharged.
fendant is in
Exch. of Pleas,
1831. Gibson 0. White. COMYN, on behalf of the bail, having obtained a rule Where a denisi for time to render the defendant, who was in the cus
custody under a tody of the keeper of Newgate, under a warrant from warrant of com
missioners of commissioners of bankrupt, and was to be brought before bankrupt, the
Court will enthe commissioners in a few days—
large the time for rendering
the defendant, · Butt shewed for cause, that the bail had not justified; though the bail
have not justiand contended, that they could make no motion until by fied. justification they were in Court.
But the Court said, that, as the defendant was as it were in criminal custody, and the bail could not make the render in due time, this was an exception to the general rule, and therefore the bail ought to have time to render.
POOLE 0. Salter. In this case the defendant had pleaded judgment reco- The Court revered; and there not being time in the remainder of this fused to set
aside a plea of term for the plaintiff to move for a rule to produce the re- judgment re
covered, on afficord—
davit of its being totally
false, though Alexander moved, on affidavits that the plea was total- there did not
remain time for ly false, to be at liberty to treat the plea as a nullity, and the plaintiff to
get judgment in sign judgment; and he urged, that the plaintiff would be delayed until next term, if this course were not allowed. having neglect
ed to take the regular steps
for that purpose It appeared that the plea had been delivered in time for in the earlier the plaintiff to have proceeded and got his judgment in the part of usual way. And
Exch. of Pleas,
Per Curiam. You should have taken the regular steps to bave obtained judgment in the earlier part of the term.
HODGKINSON 0. WHALLEY. A plaintiff can- R. V. RICHARDS had obtained a rule to discharge the current writs of defendant out of custody, on the ground (a), that the ca
pias ad satisfaciendum under which he had been taken, sa., and act un- peu der both; and had been issued before the return of a concurrent writ of therefore, where a defendant was fieri facias, under which a levy had been made. The whole taken under a ca. sa., before
amount of the levy was paid over to the landlord for rent, the return of under 8 Anne, c. 14, s. 1, except the sum of 17s, 6d., which a fi. fa, under which the plain- went towards the expenses of the execution. tiff had seized, though the whole amount Follett shewed cause.—The plaintiff had a right to isof the levy was swallowed up sue both writs, but only to execute one (6). The quesby the landlord's .;
rent,* tion, then, is, whether there was any execution of the fieri claim for rent, except 178. 6d., facias? Now here, the rent swallowed up all except the which went towards the ex- sum of 17s. 6d., which must go towards the expenses. penses of the execution - The There was, therefore, no occasion to return the writ of
fieri facias, as nothing was done under it towards satisfyant out of cus- ing the plaintiff. tody.
Bayley, B.—The record would be irregular if this rule were not made absolute, for there would appear an award of both a fieri facias and a capias ad satisfaciendum at the
(a) Another ground was, that the cognovit on which the judgment had been entered, had been obtained from the defendant whilst in custody, without the presence of an attorney; but Rich.
ards abandoned this point, conceding that there was no rule of this Court on the subject applicable to cognovits.
(b) Miller v. Purnell, 6 Taunt. 371.