28 COURT OF CHANCERY. Ex parte HALLIDAY, ve HALL.-June 23. "We do not see any advantage in keeping this cargo. If we, therefore, can obtain 88. 6d. for continent, we think all parties would be benefited. If you dissent please telegraph in morning, and state your wishes as to the disposal of cargo, the port of destination, &c. 1. contracted to sell to B. a cargo, deliverable at a port to be named by the buyer on or before the ship's arrival at signature of Halliday & Co." Hall & Jones also wrote If you send up your deed, we think we can get the a port of call; demurrage by neglect of buyer in giving to Gray & Walker, on the same 13th October, to consailing orders to be paid by him. Upon the arrival of firm their telegram, and stated-" In our present posithe ship being notified by A., B. stated that the buyer tion we cannot give any authority to sell, so that if a could not meet his engagements; and three days after-sale be effected it must be entirely on your own rewards B. executed a deed of assignment under the Bank- sponsibility." On the following day they wrote, in ruptcy Act, sect. 192. A. subsequently sold the cargo at a loss, and sought to prove against B.'s estate for the reply to the letter from Gray & Walker of the 13th':difference:-Held, under the circumstances, that the have no power to sell The Southern Rights, to which "We have your favour of yesterday, and regret we neglect of B. to name a port of delivery, and the stateeffect we wired you this morning. ment of his inability to meet his engagements, did not We bought the cargo for Mr. George Sprott, Tower-buildings, Liveramount to a breach of the contract at the date of the deed, as the time for the performance of the contract to pool, to whom you had better address yourselves." The following correspondence then ensued:accept the cargo, i. e. the arrival of the ship at her port of delivery, had not then arrived. roof for damages for breach of contract refused accordingly, but proof for demurrage incurred before the act of bankruptcy allowed. This was an appeal from an order of Mr. Commisner Perry, at Liverpool, refusing to allow Messrs. alliday, Fox, & Co., merchants, of London, to rank creditors of the estate of Messrs. Hall & Jones, okers, of Liverpool. On the 14th May, 1864, Messrs. Gray & Walker, okers, of London, sold on behalf of Halliday, Fox, Co., to Hall & Jones, a cargo of rice, on board a ip called The Southern Rights, then on her voyage m Rangoon. The contract, as far as was material, s as follows: "To Hall & Jones. "Oct. 14, 1864. "We are without any of your favours, but in receipt of a tel., saying 'Have no power to instruct you to sell Southern Rights.' We wired you subsequently, 'We are offerd 88. 44d. for Southern Rights for a contistructed to give you notice, on behalf of Messrs. Halnental port. What are your wishes? We are inabove cargo, or will feel themselves at liberty to do so, liday & Co., that they will proceed to dispose of the unless by to-morrow at one o'clock you give some definite reply about port of destination, &c., in conformity with contract.-Yours truly, "GRAY & WALKER. whether more than 8s. 44d. will be offered or is ob"P.S.-The ship is now on demurrage. We doubt tainable, and at Liverpool the market value seems lower than this price." "To Gray & Walker. struction.-Yours truly, "Oct. 15, 1864. "HALL & JONES." "London, 11th May, 1864, bought for account of essrs. Hall & Jones, Liverpool, of Messrs. Halliday, x, & Co., the cargo of rice expected to arrive by he Southern Rights, deliverable as per charterparty, "We have your favour of yesterday and telegram er ship's side, at any good and safe port in the United to-day respecting The Southern Rights, and have now ngdom, at buyer's option, to be declared to sellers only to confirm our reply, that, as you are aware, we or before the ship's arrival at port of call in the are in the hands of our creditors, and are not in a poannel. The price to be 10s. 6d. if delivered at Lon-sition to give any authority to sell, or any other innor Liverpool, or 10s. 44d. if delivered at any other rt, per cwt. If ordered to discharge at any other rt but London or Liverpool, payment to be made in ndon by cash in full, reducing the weight as cusmary, less 41. per cent. discount, and less freight, on rival of vessel at port of call, on presentation to yers of bills of lading, &c. Demurrage incurred by glect of buyers in giving sailing orders as above to paid by them. Brokerage, 41. per cent." On the 12th October, 1864, The Southern Rights rived at a port of call in the Channel, and Gray & alker gave notice of her arrival by telegraph to Hall & nes. On receipt of the telegram Hall & Jones wrote e same day to Gray & Walker as follows:-" We ly received your telegram respecting The Southern ights, and regret to inform you that the buyer is not le to meet his engagements (we'll declare his name you wish), and therefore you had better act in the atter for the interest of your own friends." On receipt of this letter, Gray & Walker telegraphed Hall & Jones:-“ Oct. 13, 1864, 1:45 P. M.-We conrue your letter as authority to sell Southern Rights once, and charge your estate with the difference. an get your deed signed. Acknowledge this." And ter on the same day they again telegraphed-"We ropose sell Southern Rights at 8s. 6d. what are your ishes?" To these telegrams Hall & Jones replied y telegraph-"We cannot instruct you to sell." On he same day Gray & Walker wrote by post to Hall & ones a letter referring to their telegrams, and saying, No. 564, VOL. XI., NEW SERIES. "To Hall & Jones. "Oct. 15, 1864. "Your favours of the 13th and 14th came to hand this morning. By instructions of Messrs. Halliday & demurrage, at your expense. Had you not better Co. we wired you as follows:-'Southern Rights on give us authority to sell on best terms for all parties? Cannot recognise Sprott;' to which we have no reply as yet, half-past 2. At 3-4 we received your reply- As you are aware, we are in the hands of our creditors, and are not in a position to give any authority to sell, or any other instructions.' Our principals wish to do the best with this cargo, both as regards your estate and all parties concerned, and will wait till Monday before they take final steps. In the meantime the ship remains on demurrage at your charge. The offer of 8s. 114d. continent, we believe will remain in force.-Yours truly, "To Hall & Jones. "GRAY & WALKER." "Oct. 17, 1864. have failed to elect a port of destination for The "Your favour of the 15th instant to hand. As you Southern Rights after several days' notice of her arto which the vessel has been directed to proceed. We rival, sellers have elected one, viz. the port of London, believe our market is higher for this description of rice than yours.-We remain, yours truly, "THOS. GRAY & WALKER." On the 17th October, 1864, Messrs. Hall & Jones ROLLS COURT. executed a deed of assignment for the benefit of their creditors under the 192nd section of the Bankruptcy Act, which was was duly registered on the 10th No- Re THE OTLEY AND ILKLEY RAILWAY COMPANYvember. On the 22nd The Southern Rights arrived in the port of London, and further correspondence took place, in the course of which Messrs. Overend & Gurney, as trustees of Hall & Jones, refused to acknowledge any responsibility on the contract; and Halliday & Co. informed Hall & Jones that they had assigned the benefit of the contract. The cargo was ultimately sold by auction on the 6th December, on behalf of Halliday & Co., and realised 10,2231. 6s. 7d. It was admitted that the sale was a proper one, and that the sum which would have been due to Halliday & Co., had the contract been carried out, was 12,6957. 88. The result was accordingly a loss of 24721. 18. 5d. to Halliday & Co., and for the amount of this loss they sought to prove against the estate of Hall & Jones. The learned commissioner rejected the proof, on the ground that there had not been a complete breach of the contract by Hall & Jones; and against this decision Halliday & Co. appealed. C. J. Mathew (with him Bacon, Q. C.), for the appellants, contended, first, that the neglect of Hall & Jones to name a port of destination, when called upon to do so, and their statements that the buyer was unable to meet his engagements, and that they could give no authority to sell, constituted a complete breach of the contract. Secondly, there was, at all events, a renunciation of the contract; which renunciation was adopted by Gray & Walker and Halliday & Co., who were consequently entitled to treat it as a breach, the contract not being at that time ripe for performance. (Hochster v. Delatour, 2 El. & Bl. 678; 17 Jur. 972, followed in Danube, &c. Company v. Xenos, 8 Jur., N. S., 434; S. C., on app., Id. 438). W. F. Robinson (with him A. Cohen), for the assignees, supported the order of the commissioner, and argued that there was neither breach nor renunciation sufficient to render Hall & Jones liable. There was no breach, as the neglect to give sailing orders was only a ground of demurrage; and there was no complete renunciation, as the sellers had not elected to treat the renunciation as a breach, but had treated the contract as a subsisting one. C. J. Mathew, in reply. Lord WESTBURY, L. C.-It is plain, that at the time of the execution of the deed of trust the contract was still subsisting. Up to that time no complete breach had taken place; the contract was neither broken nor annulled, and the trustees of the deed might have taken the benefit of it, had they been minded to do so. In the correspondence the contract is not treated by the parties as broken; but, on the contrary, the sellers constantly seek the directions of the buyers, as to what should be done with the cargo. Under these circumstances, as the time for the performance of the contract to accept the cargo had not arrived at the date of the deed, there was no breach of it at that date, and there can, therefore, be no proof for damages in respect of a breach of that contract. With respect, however, to the demurrage, there is a special clause in the contract providing for demurrage; and as, owing to the neglect of Messrs. Hall & Jones to name a port of delivery, demurrage had been incurred before the date of the execution of the deed, in respect of that demurrage, a proof must be allowed. June 10 and 12. Will-Devise of house in which “ A. now resides”—Wils Devise, since the Wills Act, of "all that message Petition. The testator, by his will, dated in February, 1851, devised a certain house, situate at Otley, by the following description:-"All that messuage dwelling-house wherein my son David Chippendale now resides, with the stables and appurtenances thereto belonging, and therewith occupied." In September following the testator purchased a piece of land, and converted it into a garden, and afterwards attached it to the house at Otley, and the house and garden continued to be occupied together up to the time of the testator's death. The Otley and Ilkley Railway Company had taken the garden under the power of their act, and had paid the purchase money into court. The present petition was presented by the devisee, praying for payment of the money out of court. The petition was opposed by the heir-at-law Baggallay, Q. C., for the devisee, referred to the 24th section of the Wills Act, and distinguished Cove v. Scott (1 Mac. & G. 518). Barrow (6 H. & Norm. 583). Lawrance, for the company. June 12.-Sir J. ROMILLY, M. R.-The question upon this petition is, whether the piece of land which the testator purchased subsequently to his will, and converted into garden ground, and afterwards attached to the house devised to his son, passed under the devise. I am of opinion that it did pass. The words of the 24th section of the Wills Act are these:-" And be it further enacted, that every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effe as if it had been executed immediately before the death of the testator, unless a contrary intention shal appear by the will." The burthen of proof, therefore lies on those who contend that this garden grou which certainly would have passed under the will it had been executed immediately before the testator death, did not pass by the description in the will; and I am of opinion that they have not shewn any cotrary intention. I am of opinion that the word "now," as used by the testator, is merely descriptive of the house i tended to be devised, as if he had said, "the house si W., in which A. B. now resides," and that it passes the house, and all that was appurtenant to it at the tra of the testator's death. This view is confirmed by the case of Hibon v. Hibon (9 Jur., N. S., 510); and doubt whether this question would have been raise but for the case of Cole v. Scott (1 Mac. & G. 5 but, in truth, that case has no application to the 28 which he had at the time of making it, and did not pass after-acquired property. The effect of the Statute of Wills is to place realty and personalty upon the same footing; placing the realty upon the same footing as personalty stood be fore the statute; and if the testator said, "I leave all the money I now possess," I apprehend that all the money belonging to him at the time of his death would pass; but if he said, "I leave all my money now invested in Consols," then I apprehend that afteracquired stock would not pass. So, here, if the testator had said, "I devise my messuage at A., with the land now held therewith," the after-acquired land could not have passed. I am of opinion, that under this devise the house and garden passed as they stood at the testator's death, and I will make an order accordingly. Note for reference-Hawk. on Wills, 20. SCOTT v. KEY.-July 11 and 12. Will-Implied trust. 44 A testator gave two-thirds of his residuary property to his wife, to be at her sole and entire disposal, for the maintenance of herself and such child or children as he might leave" and as to the other one-third, he bequeathed it to his wife, "being well assured that she will husband the means that may be left to her by me with every prudence and care, for the sake of herself and any children that I may leave by her:"—Held, the one-third, the widow took it absolutely; and as to the two-thirds, that she took a life interest only, coupled with a trust for the maintenance of an only child, a married daughter, if she should ever require to be maintained by her. that as to Motion for decree.-J. Scott, by his will, dated the 11th April, 1842, made the following bequest :-" I leave and bequeath two-thirds of all the property that I may die possessed of to my dear wife Margaret Scott, to be at her sole and entire disposal, for the maintenance of herself and such child or children as I may leave by her. Secondly, the remaining one-third of my property to my uncles William and John Scott and John Berry Key, in trust that they, or either of them, will pay therefrom the sum of 3007. sterling per annum for the use and maintenance of my father and mother, or the survivor of them. On their death the balance remaining of the principal and interest of the said one-third of my property to go to my dear wife, being well assured that she will husband the means that may be left to her by me with every prudence and care, for the sake of herself and any children that I may leave by her." The testator died in 1842, leaving only one child, a daughter, who attained twenty-one, and married in 1862. The father and mother of the testator were both dead. This suit was instituted by the widow to have the rights of the parties declared as to the residuary estate. Selwyn, Q. C., and C. T. Simpson, for the plaintiff, claimed to be entitled to the whole of the residuary estate. The trust as to the two-thirds determined upon the marriage of the daughter, as she no longer required to be maintained by the mother; and as to the one-third, the words "being well assured," &c., did not amount to a precatory trust. (Robinson v. Tickell, 8 Ves. 142; Camden v. Benson, 4 L. J., Ch., 265; Carr Living, 28 Beav. 644; 33 Beav. 474; Ioworth v. Dewell, 29 Beav. 18). V. Druce, for the trustees. E. F. Smith, Q. C., and Rendall, for the daughter and her husband.-There is a trust attached to the whole fund; but there may be a distinction as to the two-thirds. As to the two-thirds, the trust does not cease on the marriage of the daughter, for she may become a widow, and require maintenance. The plaintiff is entitled to the income only, and that so long as the daughter is maintained from some source or other. (Woods v. Woods, 1 My. & C. 401; Crockett v. Crockett, 2 Ph. 553; Gully v. Cregoe, 24 Beav. 185; Raikes v. Ward, 1 Hare, 445; Hart v. Tribe, 32 Beav. 279; 1 De G., J., & S. 418). Simpson, in reply. Sir J. ROMILLY, M. R.-I am of opinion that the plaintiff, the widow, takes one-third absolutely, but as to the two-thirds, that she takes only a life interest, coupled with a trust in favour of her child, the defendant. In my opinion that trust does not cease on her attaining twenty-one or marriage, but provided the child is maintained from some source or other, the widow is entitled absolutely; but if the fund were transferred to the mother, and disposed of by her, there would be nothing to provide for the maintenance of the child. Suppose the child should become a widow, without the means of support, then the necessity for maintenance would arise again, and the trust would come into operation. With respect to the one-third, I am of opinion that the subsequent words amount to nothing more than advice, and do not constitute a trust. There will be liberty to apply after the death of the widow, and I express death. I will mention the matter to-morrow. no opinion as to the rights of the parties after her the authorities, my opinion is confirmed, and I will July 12.-Sir J. ROMILLY, M. R.-On referring to make a declaration as to the rights of the parties accordingly. DICK v. MUNDER.-July 24. Practice-Security for costs. The plaintiff described himself in his bill as of an address where he did not live, but where letters were addressed to him, and duly reached him. He had no fixed residence, and was at the time, and still was, living at the house of a friend :-Held, that the plaintiff must give security for costs, but leave was given to amend within a week, by inserting his proper address, instead of giving security. Adjourned summons taken out by the defendants, the South-eastern Railway Company (Limited), that the plaintiff might be ordered to give security for costs. The plaintiff was described as of No. 466, Oxfordstreet, in the county of Middlesex, gentleman." The company's solicitor made an affidavit in support of the summons, in which he stated that he went to the house named as the plaintiff's address, and saw the landlord of the house, who stated that no person of the name of Dick did then live, or ever had lived, in his house, but that letters had been brought to his house which were addressed to Mr. Dick, to the care of Mr. Howell, who lodged in the house, which letters he had given to Mr. Howell, and that he had never seen Mr. Dick. The plaintiff made an affidavit in answer, in which he stated that he had for seven months past had his letters addressed to him at No. 466, Oxford-street, and letters, &c. addressed to him had always duly reached him; that owing to his embarrassed pecuniary circumstances, he had been unable to afford a place of residence of his own since the month of September, 1864, when he left Brighton. For the last eight months he had been staying at the house of a friend at Fulham, but had been to the house in Oxford-street regularly for letters and other documents left there for him; that, owing to his reduced circumstances, he was now about to enter the workhouse at Brighton; and that the description in the bill was not inserted for | It appeared that, besides these two estates, there was any fraudulent purposes, or for the purpose of en- a third also at Binbrooke, to the entirety of which abling him to keep out of the way, but bonâ fide as Eve Chapman was entitled, and which it was admitted the place where he could most certainly be heard of, passed, under the residuary clause in her will, to her and papers and other documents left for him, or served brother Adam Clark. This petition was presented by upon him, most certainly reach him; and he received the assignee in bankruptcy of Adam Clark, praying those left for him by the solicitor of the defendants. for a declaration of the rights and interests of the The plaintiff's solicitor also filed an affidavit, in petitioners, and of Betsy Ann Cooke, in certain suma which he stated that he had reason to believe, and did of money which had been paid into court, and which believe, that the residence of the plaintiff was as de- represented the estates above referred to. Among scribed in the bill, and that if the actual residence of other questions raised was, whether the residuary re the plaintiff had not been given, it had been done estate was applicable to the payment of debts in pri innocently, and from mere error, and not from any rity to the specifically devised, or whether the amount fraudulent intention, or with a view to embarrass the due for debts was to be thrown rateably upon botà defendants. He also stated that the defendants had funds. not, nor had their solicitor, held any communication with, or endeavoured to obtain any information from, him as to the address of the plaintiff. Gardiner, in support of the summons. Davey, for the plaintiff.-A mere misdescription, in the absence of fraud, was not sufficient ground for requiring security for costs. There had been no application to the plaintiff's solicitor as to the plaintiff's address. [He cited Hurst v. Padwick (12 Jur. 21); Simpson v. Burton (1 Beav. 556); Oldale v. Whitehead (5 Jur., N. S., 84); Manby v. Bewicke (8 De G., Mac., & G. 468); and Knight v. Cory (9 Jur., N. S., 481).] Sir J. ROMILLY, M. R.-This is a case for giving security for costs. The Court requires the plaintiff's address to be given, for the purpose of personal service; but here, even now, neither the plaintiff nor his solicitor gives the address where the plaintiff is staying at Fulham. The plaintiff must give the usual security for costs. Davey asked that the plaintiff might be allowed to proceed by inserting the plaintiff's proper address, instead of giving security for costs. Gardiner objected. Sir J. ROMILLY, M. R., gave leave to amend within a week, by stating the plaintiff's proper address, instead of giving security for costs. Costs of the summons to be reserved. Jessel, Q. C., for the petitioners, contended that the funds from all the property had been mixed, and that the debts must be paid rateably; and he cited the cas of Eddels v. Johnson (1 Giff. 22; 4 Jur., N. S., 250); Emus v. Smith (2 De G. & S. 722); and Pearmain v. Twiss (2 Giff. 130; 6 Jur., N. S., 337). Vaughan Hawkins, for Mrs. Cooke, contended that the residuary real estate was primarily liable to the payment of debts before the specifically devised realty could be resorted to; and he referred to Dady v. Ilbridge (1 Drew. & S. 236); Barnewell v. Iremonger (Id 242); and Rotheram v. Rotheram (26 Beav. 465). Sir J. STUART, V. C., said, that before the passing of the Wills Act, every devise of real estate, whether in general terms or not, was specific, and the Wills Act had made no alteration in the character of a residuary devise, except in so far as it enacted that the will was to speak from the death of the testator. He could not hold that this section had had the effect of depriving a residuary devise of its character as a specific devise of real estate. That had always been his ep nion, and until it was otherwise decided by a court of appeal, he could see no reason for altering it. There fore, the funds of the residuary real estate and the specifically devised realty must contribute rateably to the payment of the debts. Administration suit-Specific and residuary devise—Payment of debts rateably. Where an estate was specifically devised to A., and another estate to B., and a third estate passed under the residuary clause in the will to A., it was held, that the funds representing the three estates must contribute rateably to the payment of debts. Eddels v. Johnson (4 Jur., N. S., 255) and Pearmain v. Twiss (6 Jur., N. S., 337) followed. Petition. The suit was instituted by a creditor for the administration of the estate of Eve Chapman, widow of the late Thomas Chapman, of Binbrooke, in the county of Lincoln. By her will, dated the 28th March, 1859, Eve Chapman, after making a bequest of certain chattels, devised an estate, called Linwood, to her brother Adam Clark, his heirs and assigns, absolutely, and also all her interest in an estate, called Binbrooke, to Betsy Ann Cooke, her heirs and assigns. The testatrix also bequeathed to her brother Adam Clark all the rest, residue, and remainder of her estate and effects, whatsoever and wheresoever, and appointed him the sole executor of her will. At the time of Thomas Chapman's death he was seised in fee of the Linwood estate, in trust for his wife Eve and her heirs; and from and after her death her devisees became entitled to one moiety of the Binbrooke estate. VICE-CHANCELLOR WOOD'S COURT. Gift by testator to his widow for life, and after her dents Oct. 28, 1865. the same unto and equally amongst and between his four children, Catherine, William, Samuel, and Thomas, as tenants in common; and he devised all his real estate unto Robert Barker and John Wilmot, upon trust for his said wife Amy Dean during her life; and on her decease, upon trust to sell the same, as therein mentioned, and to stand possessed of the sale moneys, upon trust to pay and divide the same unto and amongst his said four children, as tenants in common; but if any one or more of his said children should die before his or her share or shares of and in the said trust moneys, or in his, her, or their respective share or shares of his said personal estate by him bequeathed to them on the decease of his said wife, should have become payable, leaving lawful issue, then such issue should take and be entitled to his, her, or their respective parents' share or shares of and in the said trust moneys, and also of and in the said personal estate by him bequeathed as aforesaid; but if any one or more of his said children should die before his or her share or shares should be payable, leaving no lawful issue, then such share or shares should devolve and go to his surviving child or children; and if more than one, in equal shares as tenants in common. John Dean, the testator, died on the 8th October, 1847, leaving his widow and his four children surviving him. The defendant Catherine Dean intermarried with the defendant William Flewitt, but no settlement was made on the marriage. Samuel Dean died on the 9th April, 1851, a bachelor; and William Dean died on the 9th December, 1857, also a bachelor. Thomas Dean intermarried with the defendant Sophia Clifford Dean on the 16th March, 1858, and died on the 4th November, 1863, leaving the defendant Amy Dean, his only child, surviving; and having, by his will, dated the 14th October, 1863, appointed the defendant Sophia Clifford Dean executrix. Amy Dean, the widow of the testator John Dean, died on the 22nd March, 1864. The question that now arose was, to what period survivorship was to be referred. The defendant William Flewitt, and Catherine his wife, claimed to be entitled to three-fourths of the estate of the testator, on the ground that she was the only surviving child at the death of the widow; while on behalf of the defendant Amy Dean it was contended, that the estate was now divisible in moieties. Buchanan, for the petitioner, submitted the question. H. Cadman Jones, for Mr. and Mrs. Flewitt, relied on Young v. Robertson (4 Macq. 314; S. C., 8 Jur., N. S., 825), and referred to White v. Baker (2 De G., F., & J. 55); Crowder v. Stone (3 Russ. 217); Cripps v. Wolcott (4 Madd. 11); Ive v. King (16 Beav. 46); Littlejohn v. Household (21 Beav. 29); Bright v. Rowe (3 My. & K. 316); Cambridge v. Rous (25 Beav. 409); and Re Pell's Trusts (3 De G., F., & J. 29). Willcock, Q. C., for Mrs. Sophia Clifford Dean, claimed to be entitled to an interest in the share which accrued to William Dean. Phear, for Amy Dean, cited Hodgson v. Smithson (3 De G., Mac., & G. 604) and Eyre v. Marsden (4 My. & C. 231). H. C. Jones, in reply. Sir W. P. WOOD, V. C.-The case of White v. Baker, which is a decision of the full Court of Appeal, would carry the case before me, if it can be distinguished from Young v. Robertson, a case very near this. If I can find such a distinction, I cannot depart from White v. Baker on the authority of Young v. Robertson, in which White v. Baker was not cited, and therefore not overruled. It is now settled by Cripps v. Wolcott, that where there is a gift to A. for life, and after his death to B., C., and D., or the survivors or survivor of them, the death of the tenant for life is the time to ascertain the survivorship. But Crowder v. Stone, White v. Baker, and Ive v. King, establish, that if there is is a gift over of the shares of any person dying under particular circumstances, the word "survivor" refers to the last event mentioned, namely, the death of the legatee dying. Then there is another class of cases, such as Littlejohn v. Household and Cambridge v. Rous, in which this circumstance occurred, that the period of division immediately preceded the words of the gift over, and the Court held that the survivorship must be referred to the period of distribution. In Young v. Robertson there was a gift to six persons, and no gift over of the share of any who died leaving issue, the only gift over being, if any died without leaving issue. If any left no issue, the survivors were to take his share and divide it. White v. Baker and Crowder v. Stone were not cited in that case. The point argued was, whether survivorship referred to the death of the testator. Here, according to the grammar, it is plain of what period the testator speaks, for he refers to two classes of events-a legatee dying leaving issue, and dying without issue. There is a clear gift in the event of the death of any leaving issue in the lifetime of the tenant for life, to the issue. Then in the other event, of the legatee leaving no issue, the share is to devolve, and go to his surviving child or children. I agree that the later authorities make but little difference between a gift and a direction to pay and divide; but as, if a legatee dies leaving issue, the gift of the share is to the issue at once, the question is, does not survivorship point to the same moment, namely, the death of the person of whom the testator is speaking? This would be plainer if the words "share or shares" mean plurality of shares in an individual, and I think, upon the whole, that is the better construction. The testator's language is not accurate. If he had said "his, her, or their share or shares," the words might have been construed reddendo singula singulis, but in the part I have to construe, the words "his or her share or shares" do present plurality. The case has a different aspect from Young v. Robertson. If I were to construe the will as contended on behalf of Mrs. Flewitt, I should not be putting a grammatical construction on the clause. I must, therefore, follow White v. Baker, however thin the distinction be between this case and Young v. Robertson. As I hold that there is a plurality of shares in one individual, the accruing shares go over in the same manner. Therefore, in the events which have happened, the fund is divisible in equal moieties between Amy Dean and Catherine Flewitt. COURT OF QUEEN'S BENCH. EASTER TERM. [Before COCKBURN, C. J., and SHEE, J.] REG. v. THE INHABITANTS OF BUCKLAND.-May 6. Highway-Indictment-Costs-25 & 26 Vict. c. 61, s. 19. Where, upon the trial of an indictment ordered by the justices, under the stat. 25 & 26 Vict. c. 61, s. 19, against the inhabitants of a parish for the non-repair of a road, the jury found a verdict for the defendants, upon the ground that the road in question was a private road, and not a highway, the Court have no jurisdiction to order costs. At a petty sessions, held on the 17th March, 1864, |