contended that an absolute interest was given to Mrs. Borton by the terms of the testator's will: the words were "to be considered as vested in her upon her attaining twenty-one, and to be subject to her disposition." This was an absolute interest with a power of disposition, and there was nothing which could detract from the interest first given. The following cases were cited Bradley v. Peixoto, 3 Ves. 324. Mr. Bethell and Mr. Hardy appeared for the defendant Mrs. Borton, and contended that she took a life estate only, with a power of disposition by will. The interest given to her was a reversionary chose in action, and the articles made previously to her marriage were not binding on her. Mrs. Borton took no interest until she attained twenty-one; and the words used by the testator were intended to protect his daughter upon her marriage; but whatever interest she took under the will, as far as the husband was concerned, he was bound by the articles. They were framed upon the assumption that she had an absolute interest, and the property was settled to her separate use. Mr. Borton covenanted to transfer any property of his wife to the trustees for the separate use of his wife; but the articles were without effect as far as she was concerned, and if the husband were now to die, the whole property would survive to her. plaintiffs could only claim under the articles which were inoperative as against the wife, although they would bind the husband for the wife's benefit. Ellison v. Elwin, 13 Sim. 309. The Le Vasseur v. Scratton, 14 Ibid. 116. Mr. Shelford appeared for some of the nephews and nieces of the testator. Mr. Stuart, in reply, said the question was simply whether the absolute interest given by the testator was to be cut down to an estate for life; and it was contended for the wife that she took an absolute interest. If the words gave an absolute interest and a separate disposing power, the Court would not allow the absolute interest to be cut down. There The VICE CHANCELLOR.-I must decide this case upon the words of the will. I do not think that the cases cited are applicable to this question. Take the case of Bradley v. Peixoto. In that case there was a clear gift to a person, with a proviso that he should not dispose of the subject of the gift. It was held that the condition being inconsistent with the gift the gift was good, and the proviso bad. In the case of Bull v. Kingston there was a bequest of personal property in trust for A. (a married woman) for her separate use, with a power of disposing by will; and in case she died without a will, the testator gave all that might remain at her decease to B, and then followed a gift of all the rest and residue to A, who was appointed executrix. It was held that A. took the absolute interest in the property, and not a power of disposing merely; and the gift to B. of all that might remain at her decease was held void for uncertainty. Then take the case of Ross v. Ross, before Sir Thomas Plumer. was a gift to the son of the testator absolutely, implying a power of disposition, and then saying, that in case he should not dispose of it by will or otherwise in his lifetime, the property should go over: that is totally different from the present case, and so also is the case of Green v. Harvey. It is in my opinion necessary at all times to ascertain in what sense a testator uses any governing words. It is evident that by the word "disposition" the testator had only the notion of a testamentary disposition except in the trust for sale, where he expresses an intention that the estate shall be" disposed of by public auction or private contract." Here it is manifest that the word has not the meaning given to it in other parts of his will. The testator then says, "the money arising from such sale or sales, and from the rents thereof, in the mean time, I desire may be added to and considered as part of my personal estate, and be subject to the disposition hereinafter made thereof," meaning his own disposition by his will. Then comes the expression in the gift to his daughter, "and to be subject to her disposition thereof." It appears to me if you go on further, as you must do, you must take the disposition in that expression to be the disposition spoken of just after. He then says, “In case my daughter should die without attaining twenty-one, or without disposing by her will of the property hereby devised to her," that I think must be taken in connexion with the former expression "disposition thereof." Again the testator uses the same expression when he comes to the gift over, for he says, "subject to the disposition by will of my wife." Now, the question is, taking all these sentences into consideration, what is the construction of the will? It appears to me that looking at the whole of it in connexion, it is a gift to the daughter of all and every the personal estate and effects of the testator upon her attaining twenty-one, and to be subject to her disposition thereof, that is, her disposition by will with a particular qualification, not the giving of a new power; but that in case she should not dispose of it then it should go according to the disposition of the testator's wife. The words must be taken so that each word shall bear its own meaning. It was a gift to her for her life, to be subject to her testamentary disposition; and then if she died without any disposition by will, the property to go over. So I think the lady had not the absolute interest given her. Then the question is, whether as between the husband and wife there has been such a dealing with the property as that these marriage articles really bind. My opinion is, that inasmuch as the husband has not reduced it into possession, the articles cannot be binding, and that there can be no relief given, and the bill must be dismissed with costs. The case which I decided of Ellison v. Elwin is, I think, directly in point. witness given vivâ voce was objected to before the Master, but not on the ground of his having been examined before on interrogatories. The Master received the evidence. Exceptions were taken to the report on this ground. On the hearing of the exceptions, -Held, that the objection to the vivâ voce evidence on the ground of the witness having been examined before could not be raised. A reference was made to the Master in this suit, which was one for specific performance, to inquire into certain facts relating to the contract. Under this inquiry a witness was examined on written interrogatories, and his depositions were published. He was afterwards examined vivá voce before the Master. The depositions and the oral evidence were both objected to before the Master, on the ground that their tendency was to vary a written instrument, and that they were, therefore, inadmissible; but were received by the Master. The Master made his report. Several exceptions were taken to the report, two of them having reference to the reception of this evidence. These exceptions now came on to be heard. Mr. Teed and Mr. Torriano, for the exceptions, objected both to the written and oral evidence for the above-mentioned reasons, and objected also to the oral evidence on the ground that the witness, having been examined on written interrogatories, ought not to have been examined again; by analogy to the rule which prohibits a witness who has been examined in a cause from being examined again in the Master's office. KNIGHT BRUCE, V.C. asked if that objection had been taken in the Master's office. In reply to this question, it was stated positively by the counsel for the report, that such objection had not been taken. The counsel for the exceptions said that he was unable to recollect whether it had or not. Mr. Teed and Mr. Torriano insisted that they were not bound to confine themselves to the objections which had been taken before the Master, and that they were at liberty to raise all the objections before the Court which could be taken to the report. Will-Direction to settle, whether in Tail or for Life. A testator directed that an estate should be purchased by his executors, and that such estate should be made hereditary and settled upon his constituted heir. He then appointed his nephew his heir and successor, and desired that the estate should be settled upon him, and should descend to his heirs and successors in the direct male line, and in case of his nephew dying without issue, the estate to devolve upon his brother, his heirs and successors in the direct male line :· Held, that the nephew was not to take as tenant in tail in possession, but that the estate was to be settled upon him for life, with remainder to his sons in tail male, and afterwards to the next taker and his sons in like manner. The bill stated that John Shelton, late a Major-General in the army, made his will, dated the 11th of April 1843, and thereby appointed two persons joint executors of his will. The testator then continued as follows:-"My desire and commands are, that a landed estate shall be purchased as soon as practicable to the full amount of my property, deducting only 1,000l., which I bequeath to my god-daughter, Miss Fanny Codd, daughter of my late esteemed friend, Harrison Gordon Codd; and that such the said estate shall then be made hereditary and settled upon my constituted heir. avoid the chicanery of law, I will explain myself further, in order that my meaning and intentions may be plain, and not be thwarted and rendered nugatory by law To technicalities or the want of them. My wish and desire are, that my executors should, with the monies I have, purchase to the best advantage an estate which is to be made hereditary and settled upon my here constituted heir, and to descend to his heirs so dying without issue as I shall now provide for. I hereby constitute, nominate and appoint my nephew, William Shelton, now a lieutenant in the 9th Foot (meaning thereby the plaintiff), my heir and successor, and the said estate when purchased is to be settled on him, his heirs and successors, in the direct male line lawfully begotten and born in wedlock. In case my said nephew, William Shelton, die without issue, the said estate to devolve to his brother, Frederick Shelton, a lieutenant in the 98th regiment, his heirs and successors lawfully begotten and born in wedlock, in the direct male line; and in case of his also dying without issue, the said estate then to devolve upon his brother, John Shelton, his heirs and successors lawfully begotten and born in wedlock, in the direct male line; and in case of his also dying without issue, the said estate then to devolve upon my next heir and successor in the eye of the law, and to his heirs and successors in perpetuity; my object, intent, desire and command being, that the said estate shall never pass out of my family, and that no person shall hold it under any other name than the one I bear of Shelton." The bill was filed by William Shelton, the eldest nephew of the testator, for the purpose of establishing the trusts of the will, and for the administration of the testator's estate; and it prayed that the plaintiff might be declared to be the first tenant in tail in possession of the estate by the said will directed to be purchased. The answer of the defendants, the executors of the testator, alleged that doubts had arisen as to the effect of the trusts in the said will, and submitted whether the plaintiff ought not to have a life estate only in the property left by the will, and whether the same ought not to be settled upon the plaintiff's first and other sons successively in tail male, with remainder to the said Frederick Shelton for his life, with remainder to his first and other sons successively in tail male, with an ultimate limitation to the right heirs of the testator. Mr. Rolt and Mr. Osborne appeared for the plaintiff, and contended that there was nothing upon the face of this will to shew that the limitation to the plaintiff was to be cut down to a life estate. The testator had given an estate in tail in a proper form of words; and the Court was not at liberty to alter the estate given by the testator. They cited Seale v. Seale (1), where, in a direction by will to settle lands upon A. and the heirs of his body, it was held that A. took an estate of inheritance; and Blackburn v. Stables (2). Mr. Kenyon Parker and Mr. Hetherington, for the two youngest nephews of the testator, contended that the estate ought to be settled upon the plaintiff for life only, with remainder to his first and other sons in tail male, with like limitations in remainder to his brothers and their issue male. If the limitations were strictly to follow the words of the will, the plaintiff and his brothers would have estates in tail male, and the plaintiff might, by executing a disentailing deed, at once make the settlement nugatory, and make himself the absolute owner of the estate. It was evident that such was not the intention of the testator, since he had expressly directed that the estate should be made hereditary and settled upon his constituted heir, and his heirs and successors in the direct male line. The testator had further directed, that the estate should never pass out of his family, and that no person should hold it under any other name than his own. Now, it was true that this could not be effected, so far as the words of the testator seemed to point out; but still it was evident that the intention was, that the estate should be settled as strictly as possible, and not to descend upon his first nephew in such a manner that he might at once dispose of it. The following authorities were cited to shew, that under similar words the Court had directed estates to be settled strictlyPapillon v. Voice (3), Leonard v. the Earl of Sussex (4), and Jervoise v. the Duke of Northumberland (5). The case of Leonard (1) 1 P. Wms. 290. (2) 2 Ves. & B. 367. (3) 2 P. Wms. 471. (4) 2 Vern. 526. (5) 1 J. & W. 559. v. the Earl of Sussex established that a direction to settle lands on A. for life and the heirs of his body, if accompanied with other clauses shewing such intention, would only give A. an estate for life-White v. Carter (6), The Earl of Stamford v. Sir John Hobart (7), and Read v. Snell (8). Mr. Bacon and Mr. R. Palmer appeared for other parties. The VICE CHANCELLOR.-This case appears to me to differ from the cases of Britton v. Twining (9) and Blackburn v. Stables. It is impossible to look through this will without seeing that the testator was ignorant of the exact legal meaning of the words he has made use of. He wishes the estate to be made hereditary, and settled upon his constituted heir, his heirs and successors in the direct male line. It is quite clear that he did not mean it to be hereditary in the sense that the first taker should have the absolute interest in it. The language is certainly very singular, but he could never have intended to limit the estate so that none but the first nephew should take the estate. After nominating the plaintiff his "heir and successor," and directing the estate to be settled upon him, his heirs and successors, he continues, "in case my said nephew die without issue, the said estate to devolve to Frederick Shelton, his heirs and successors in the direct male line; and in case of his also dying without issue, the estate then to devolve upon his brother John Shelton, his heirs and successors in the direct male line; and in case of his also dying without issue, the estate then to devolve upon my next heir and successor, my object being that the estate shall never pass out of my family." It appears to me, that the only way to effect the testator's intention is to direct that a settlement should be made which will give the estate to the first taker as tenant for life, with remainder to his first and other sons in tail male, and that the testator's other nephews should also take an estate for life, with remainder to their sons in like manner. (6) 2 Eden, 366. (7) 3 Bro. P.C. 31. (8) 2 Atk. 642. (9) 3 Mer. 176. Administration Suit-Creditor - Injunction-Costs. Where a creditor, without notice of a decree in an administration suit, had commenced an action in Scotland against the administratrix, and afterwards had come in under the decree but declined to undertake to discontinue his action, he was fixed with the costs of a motion for an injunction to restrain proceedings at law. After a decree in an administration suit, it is no ground for allowing a creditor, in the first instance, to proceed at law to ascertain his claim, that the cause of action arose in Scotland, and the witnesses are resident there, and that questions of Scotch law are involved. The suit in this case was instituted to administer the estate of J. A. Maxwell, the testator in the cause, who resided in Dumfriesshire in Scotland, and the sole defendant was J. Mary Maxwell, the widow and administratrix with the will annexed, of the testator. On the 17th of March 1848 the usual administration decree was made at the hearing, and advertisements were inserted for creditors to come in and prove their claims. It appeared, that on the 17th of March 1848, Dr. Moffatt, in ignorance of the decree in the suit, had commenced an action in the sheriff's court at Dumfries, to recover from the administratrix a sum of 1,040l. 8s. 6d. for business done by him, as physician, surgeon and apothecary, for the testator, and for money expended by him, Dr. Moffatt, by the order of the testator. On the 28th of July 1848 Dr. Moffatt saw the advertisement calling upon the creditors of the testator to come in and prove their debts, and on the 3rd of August following he carried in the above claim before the Master. Upon the hearing of the claim an objection was taken by the defendant, the administratrix, that the business, in respect of which the claim was made, was done more than six years before the death of the testator, and the Statute of Limitations was insisted upon. On the part of Dr. Moffatt it was then proposed before the Master, that the NEW SERIES, XVIII.-CHANC. claim should be allowed to stand over till the action in Scotland could be tried; but the administratrix objecting, the case stood over for Dr. Moffatt to produce further evidence in support of his claim. On the 23rd of November 1848 the solicitors of the administratrix wrote a letter of that date to Dr. Moffatt, in which, after insisting that he was not entitled to proceed in his action, they gave him notice that unless before the 17th instant they received an undertaking on his part to put an end to the action in Scotland, and to refrain from prosecuting his claim except in the Court of Chancery, they should immediately apply to the Court for an injunction to restrain him. No answer being returned to this letter, the administratrix, on the 25th of November following served a notice of motion upon Dr. Moffatt for an injunction to restrain him from proceeding at law for the recovery of his claim. motion came on to be heard before the Vice Chancellor of England on the 2nd of December 1848. The The affidavit of Dr. Moffatt, in opposition to the motion, stated that his first notice, either of the suit or decree, was from reading the advertisement for creditors on the 28th of July 1848; that the administratrix was still living at Sidmount Cottage, in the county of Dumfries, the late residence of the testator; and that all the witnesses necessary to establish his, Dr. Moffatt's, said claim were resident in Scotland, and none were resident in any part of England; that the said claim arose wholly in Scotland, and within the jurisdiction of the Scotch courts of law; and that he was advised and believed that his said claim was to be decided according to the law of Scotland; and that according to that law no bar or defence existed to the said claim in respect of the time which had elapsed since such claim and demand first arose; and that the deponent had been advised and believed that he had a good and valid claim both at law and in equity for the amount of his demand against the estate of the testator; and that it would be less expensive to establish his said claim in the sheriff's court in Scotland than to issue a commission for the examination of witnesses, and prove his demand under such commission. 2 G |