hem to find whether it was a reasonable precaution | discover with ordinary caution-to warn him against or the company to keep a man at the crossing. He what is manifest? It is not said that the company Iso left it to the jury to find whether the negligence may not have trains meeting one another at a level f the company had led to the accident, and whether crossing; but it is said there should be some one to he deceased could, with reasonable care, have avoided give warning, to the effect, that when one train is he danger. The jury found a verdict for the plaintiff, passing on the near side, there may be another about amages 1007. to pass on the far side. Every one knows that, who Overend, in this term, obtained a rule nisi, in ac- chooses to think: no warning is required of such a ordance with the leave reserved, calling upon the thing as that. No set of persons can impose upon anlaintiff to shew cause why a nonsuit should not be other the duty of reminding them of what they know, ntered, on the ground that there was no evidence of but choose to forget. And I think, moreover, that it egligence. would be a very mischievous thing if they were bound Manisty and Kemplay shewed cause, relying on the to do so. It would have to be done everywhere, and ase of Bilbee v. The London, Brighton, and South-coast it would cost too much; and it would be a mischievous Railway Company (18 C. B., N. S., 584), and contend- thing, as it always is, to make rules to take care of ng, that the defendants were under a common-law persons who ought to take care of themselves. It may ability to keep the line safe for foot passengers. be known when trains are due, but there are special Bramwell, B.-What precaution should have been trains, pilot engines, and express engines, which would aken? The jury have found, that some further pre- not be known to the servant of the company, and the aution should have been taken, but they did not find passenger, feeling the responsibility removed from hat precaution. In the case of Bilbee v. The London, himself, would rush upon dangers against which he Brighton, and South-coast Railway Company, there was could not be warned. I think the deceased woman sudden curve sweeping round upon the crossing, brought the disaster upon herself; and the company hich makes it a very peculiar case.] provided everything they could be reasonably expected to provide. If they had done more it would have done harm rather than good. Bilbee's case cannot be treated as an authority. It is clear that it was not decided on general grounds. I am not saying that it was not rightly decided, but it lays down no principle; and Erle, C. J., does not propose to decide it in that manner. If there be a sudden curve in the line of rails which conceals the train till the last second, or if the train emerges from a tunnel, the company are bound to make particular provision for the safety of the crossing: that is the effect of the decision. This case is quite different. If it were necessary to decide that the deceased contributed to the accident by her own negligence, I should be prepared to say so.

2

Overend (with J. B. Maule), contra.-The case of Bilbee v. The London, Brighton, and South-coast Railcay Company was the case of a rail crossed by a turnpike road. I do not say that was the ground of the judgment. (See 34 L. J., C. P, 182). [Channell, B. -Scott's version (18 C. B., N. S., 584) varies from that.] The finding of the jury, in truth, does nothing to support their view of the case, for if there had been a man in the service of the defendants on the spot, he would not have saved the woman; there was a person present who used all his endeavours to do so. twould have been necessary to have a man on each ide of the line; and it would be necessary to have a nan at every point on the line. How can it be the usiness of the company to keep a man to advise the ublic to behave with ordinary prudence? When such precaution is necessary, the Legislature requires it. 8 & 9 Vict. c. 20, s. 47).

POLLOCK, C. B.--The question is, whether there was egligence in the company. I think there was not. The line ran in a straight course for several hundred ards in both directions, and the Legislature seem to ave thought that there was no mischief in having a ootway on a level crossing at a spot like this. The leceased certainly came to her end by her own misjake. I do not think that the railway company were ander an obligation, under the circumstances of the case, to keep a man on the spot. Therefore, there was no negligence, and the rule must be made absolute.

BRAMWELL, B.-I am clearly of the same opinion. I think wilfulness might as reasonably have been assigned as the cause of the accident as negligence, on the part of the company; whichever word be used (and it is easy to impute misconduct in such general terms), it is natural to inquire what should have been done that was omitted? It is answered, "Keep a man at the crossing"-not, I suppose, to detain passengers by force, except when they attempt to cross under the very wheels of a train, but to warn them. It is true, that at the gate leading to the line you can only see a short way along the line, but when you come up to the line itself, you can see 300 yards in both directions. A passenger, then, has only to walk up to this spot to judge whether he will cross or no; and supposing him to walk at the rate of three miles an hour, he would be able to cross and recross, and cross back again, before a train could arrive at the footway, having sighted the line clear at first. Why, then, place a man on the line to tell the passenger what he can

CHANNELL, B.-The case of Bilbee v. The London, Brighton, and South-coast Railway Company was cited at the trial, and my only doubt was, lest our decision should conflict with the decision in that case. But I do not think it concludes this case. It is differently reported in the two books I have before me (see 34 L. J., C. P., 182; 18 C. B., N. S., 582), and it lays down no general principle. The question is, whether there was evidence of negligence. I do not enter into the question of contributory negligence, for I am prepared to base my judgment on the fact that there was no evidence of negligence in the defendants. The judge at the trial was impressed with the case of Bilbee, which, although not conclusive, presents many features of resemblance. In charging the jury the judge lays down a general principle, evidently not without feeling how difficult it was of application. Certainly it is hard to say here what the negligence was. There is no complaint that the arrival of the train was not announced by a whistle, or that it was going faster than such a train should. So there is no negligence on that ground. All persons are bound to exercise ordinary and reasonable care; and this woman, but for the goods train, would have seen the express. She crossed without any interval. Well, it is said there should have been a watchman. Mr. Overend says one would not have been enough, and there is a great deal of force in his argument. In fact, a person was present, and if she had heard him, there would have been no accident. If he had been in the company's service he could have done no more than he did. I agree with Erle, C. J., that we ought not to add to the burthens imposed by the Legislature on railway companies,

PIGOTT, B.-The learned judge who tried the case was at great pains to leave it to the jury; and I

should be sorry to disturb the verdict in this case if I fore, it ought to hold, that when any third person saw reasonable grounds of negligence. But I cannot. shews that he is entitled to intervene, he ought to be Bilbee's case stands on its own peculiar circumstances, allowed to intervene. Without intimating any op and so does this. A watchman could have done no upon the question, whether the intervention is any more than one of the witnesses did. I do not say a to be successful, or whether the intervener will bare i watchman is not required at any point, but I think it pay the costs caused by the intervention, it is e is the exception where he is required.-Rule absolute. to say, that I think a third party ought to bead to intervene, and bring before the Court the which he relies in support of his intervention. T now before the Court a petition by the wife fe custody of the children, and an answer of the ha I think the intervention ought to be in the form 1 petition. The intervener must file a petition w ten days. The most convenient course will be to bang the case on by motion, when the pleadings and the

COURT FOR DIVORCE AND MATRIMONIAL

rself in her communications with them, form a more rious charge; while the undisputed fact revealed in r own journal, that she had for long surrendered r mind and affections to a guilty passion for one them, is the gravest but one of connubial offences. e Court does not feel at liberty to abrogate, in our of a wife thus acting, the legal right of her sband to the custody of the children. But she may Il be heard to argue that the respondent is not fit have charge of them himself, and that, for their ce as well as hers, they should be placed in more oper hands. The gross vice and immorality of the spondent disclosed at the trial, coupled with the inedible obscenity of some of his letters, satisfy the ourt that this is the case, and that some asylum other an the respondent's house should be sought for the rture of this young lady and her brother. In this te of things, Sir George Chetwynd and his sister ve come forward to accept the charge. They pray at the children may be confided to them, and they ve reason to believe that they will zealously supertend their education and culture. To their prayer Court is prepared to accede, and the children will committed to their care, giving both petitioner and pondent free access to them at proper times. A gestion was made, that the petitioner should be alved to nominate some one to act with one of the spondent's family for the purpose. But the interners both refuse to act under any such condition, id I do not think it desirable for the children, that le rival spirit of the petitioner and respondent should infused into the minds of those who are to watch ver the children's interests. The petitioner further ays that the settlements made on her marriage ly be altered in her favour, under the powers of the & 23 Vict. c. 61, s. 5, and that the Court should rther secure her an allowance from the respondent, der sect. 32 of the original Divorce Act. It is uncessary to consider the questions raised under this ter section, as full justice can be done to the petin under the former. In entering upon this head inquiry, the respondent complains much of the itioner's extravagance in the past, and he appends his affidavit a list of the debts still owing by her en she left him, and for which he expects to be made ponsible. He swears the amount at 30007. or more. e amount and character of these debts appear to hibit an extravagance, of which he might justly mplain. Thus, there are no less than sixteen jewer's bills, some for small sums, but one for 4277., e for 967., one for 677., and others above 201. In e manner there are seven bills for fancy goods and rlin wool, the highest of which is 2121. Then there It was well not to forget, that though the break up › five photographers and ten stationers, besides bills of the married life was caused immediately by the personal attire, as might be expected. These bills, misconduct of the respondent, its stability had been d the costs of the suit, are likely to make a con- undermined by the withdrawal of the petitioner's aflerable inroad upon the respondent's means. The fections. It was a subject of fair comment, that but xt question will be, what is the probable amount of for the extravagance of the petitioner, and the con› available income when all is finally settled and duct which made her the object of her husband's not id? I estimate the respondent's income from the unreasonable suspicions, the common fund would have ttled property, including that settled by the peti- been more ample. Nor ought the fact to be lost sight oner, at about 9437. But he has other sources of of, sworn to by the respondent, that the sum of 10007. come; and in dealing with the settlements for this had been received since the marriage by the petirpose, they ought not, I think, to be placed out of tioner, the benefit of which is now hers, if she has not ht. He has a house called Longden Hall, the pro- already spent it. The fortune of the respondent had erty of his family, and in which a life interest was also to be considered, and the available means which evised to him by his mother, with the intention of would be left him to sustain his position in his home. s residing there. It is not easy to put a money If the reasonable needs of the wife did not demand it, lue on this; nor is it necessary, in the view which the Court would hardly feel justified in so reducing take, and the purposes for which this estimate is his income as to render his future residence on his ade. He has land in his own occupation, and land property impossible. And lastly, the Court has drawn hich is rented by others. The income likely to be what assistance it could from the decided cases on oduced to him by these lands amounts, in my judg-permanent alimony. In Lord Pomfret's case, cited in ent, to 2167. He has also some share property, the Otway v. Otway (2 Phillim. 110), the income was 12,000l.,

value of which is very differently estimated by the petitioner and respondent. I do not propose to decide between them with any accuracy, for the debts, by way of costs, in these and other legal proceedings, coupled with the sums for which he is likely to be responsible in discharge of debts incurred by the petitioner will, in my opinion, leave little income from this source. Adding, then, the 2167. to the 9437., his total means from all sources will amount to 11597. Out of the income of the settled moneys the Court is about to order 2001. to be paid annually to Sir George Chetwynd and Lady Hanmer, for the maintenance and education of the children. This will reduce the respondent's income to 9591. The Court proposes, that out of this sum the trustees shall be ordered to pay the petitioner annually the sum of 2501. during the respondent's life. This sum will be payable as usual dum sola et casta vixerit. The petitioner will thus enjoy the whole income of the money which she brought into settlement, and 250l. a year in addition. The Court does not feel justified in releasing from the operation of the settlement the 30007. contributed by the petitioner, as the children have a reversion therein; and for the like reason, no order can properly be made to extricate from the settlement the sum of money expected in reversion. But in respect to these sums, the Court may accede to the suggestion made on the argument, and will, therefore, order that, so soon as any of the sums expectant in reversion, or any part thereof, shall be reduced into possession of the trustees, they shall pay the income thereof to the parties, petitioner or respondent, by whom or on whose behalf the same were respectively settled: this order to apply only to such part of the said reversion as may fall in during the joint lives of the parties, and the payments thereunder to be continued during such joint lives only. In exercising the discretion accorded to the Court under the 22 & 23 Vict. c. 61, s. 5, I have felt bound to bear in mind the conduct of the two parties, as well as their pecuniary position. In sect. 32 of the original Divorce Act, by which power was given to make provision for the wife in case of divorce, the Court is expressly told to consider "the wife's fortune, the ability of the husband, and the conduct of the parties." And although these words are not repealed in the subsequent act, 22 & 23 Vict. c. 61, s. 5, they serve to exhibit the spirit of the Legislature in these provisions, and form a fitting guide for the Court. In thus endeavouring to adjust the means to be accorded to the petitioner, and the burthen to be borne by the respondent, several considerations have to be borne in mind.

In the Goods of ANDREW THOMSON, Deceased. [Coram POLLOCK, C. B., WILLES, J., PIGOTT, B. za

SHEE and SMITNI, JJ.] REG. v. HENRY REDMAN-Nor. II. Will―Three codicils revoked by a fourth-A fifth codicil | Threats with intent to extort money-24 6G Tack, confirming four previous ones-Parol evidence. The deceased executed a will and three codicils. He sub

sequently executed a fourth codicil, in which he directly and absolutely revoked the three previous codicils. He afterwards executed a fifth codicil, in which he confirmed his will and four codicils:-Held, that there was sufficient ambiguity on the papers to allow of the introduction of parol evidence; that that clearly shewed that the error had been made by the copying clerk, and that consequently probate would be granted of the will, and of the fourth and fifth codicils only.

Dec. 16, 1465.

COURT OF APPEAL IN CHANCERY Re ADAM'S TRUSTS,— Nov. 4, (1... 3}z© 1། Will-Gift over in the event of death.” 903 70 rift, by will, to A.," and in the event of her death," over. By codicil the testator left all he possessed to A., as stated in his will, wishing her to pay certain legacies; and "at A's death I wish all remaining to be for the benefit of B. and her children:"-Held, upon the construction of the will and codicil taken together, that A. took a life interest only, with remainder to B. and her children, as joint tenants.

Appeal from the Master of the Rolls, upon a petiion presented under the Trustee Relief Act.

The testator, by his will, made the following devise nd bequest:-"I give, devise, and bequeath all my fects, both real and personal, to my wife Phoebe dam, and in the event of her death, to the children my deceased brother, James Adam, to be equally ivided between them."

The testator made a codicil to his will, in the folwing terms: I hereby, as before stated, leave all possess to my wife Phoebe Adam, wishing her to connue the allowance of 30% per annum to Mrs. James dam. I also wish 201. to be given to each of Henry ox's children at their wedding, and the sum of 207. to ach of Mrs. James Adam's children on their wedding lay; also 50%. to be given to William Cox, my wife's rother; at my wife's death, I wish all remaining to be for the benefit of Mrs, James Sarah Adam and her children."

Phoebe Adam, the wife, survived the testator, and ad since died.

The Master of the Rolls, upon the construction of 1e will and codicil, held that Phoebe Adam, the wiow, took absolutely, and made an order for payment f the fund, representing the residuary estate that had een paid into court, to her representative. Against is decision Mrs. James Sarah Adam and her children ppealed.

Lorence Bird and H. J. Bird, for the appellants.
Whitehorne, for the respondents, cited Pushman v.
illiter (5 Ves. 7) Wilson v. Major (11. Ves. 205); Re
fortlock's Trust (3 Kay & J. 456); Bowes v. Goslett (4
ur., N. S., 17); Holmes v. Godson (8 De G., Mac., & G.
52); Re Yalden (1 De G., Mac, & G:53); and Barton
Barton (3 Kay & J. 512). 1
Cole, Q. O., for the trustees.
Lorence Bird, in reply..

my wife's death," not if it shall happen at any particular time, but, simply, "at my wife's death I wish all remaining to be for the benefit" of the lady and her children mentioned....

It appears to me that the testator meant here to indicate that his widow was to be merely tenant for life, subject to given legacies, without a power of expending the capital. I repeat, that whatever would have been the construction upon the will alone, as to which I give no opinion, but, taking the will and codicil together, I think that the codicil supplies a context, which makes the widow tenant for life only, subject to the legacies, and with an interest in the nature of remainder after her death to the sister-inlaw and her children.

Sir G. J. TURNER, L. J.-This is one of those cases upon which it is difficult to arrive at a satisfactory conclusion. My learned brother is of one opinion, and the Master of the Rolls is of a different opinion, and upon the best consideration I can give to the case, I agree with the opinion which my learned brother has given, rather than with the conclusion at which the Master of the Rolls has arrived.

Upon the first disposition made by the will I entertain no doubt. I think, consistently with the cases that have been decided, that it would be unsafe to throw any doubt upon the effect of the words "and in the event of her death," when taken apart, unqualified by any context. I have no doubt that an absolute gift to A., and in the event of A.'s death, an absolute and immediate gift to B., where there is no context to alter the meaning of the words, amounts merely to a gift to B. in the event of A. dying in the lifetime of the testator. I do not think that we should shake the number of authorities by throwing any doubt upon that point.

Then there is no doubt that these words, "in the event of the death," or "in case of the death," may have a different import from that which the law has already affixed to them. That depends upon the context. The construction depends entirely upon the effect of the codicil as explaining the view which the testator himself took of the effect of the words he has used. Now, the codicil is, "I hereby, as before stated, leave all I possess to my wife Phoebe Adam." I think these words, "as before stated," have no effect at all. They do not alter the case, because, if the effect of the words used in the will to which the words "as before stated" refer, be to create an absolute interest in the widow, of course that absolute interest takes Sir J. L. KNIGHT BRUCE, L. J.-The words of the effect under the words " as before stated." If, on the vill, standing alone, are probably, to use Mr. Bird's other hand, the effect of the words contained in the xpression, flexible. They may either mean death in will, as explained by the context in other parts of the he testator's lifetime, or death whenever it may hap- codicil, is to make the widow a tenant for life only, en. Their meaning must depend very much on the they leave her tenant for life only. Therefore, I do ontext; and in the absence of any context, these not think that anything is to be collected from the words would, perhaps, be held not to imply or mean use of these words, "as before stated." Then the tesn interest in the nature of remainder or reversion, tator says, "I leave all I possess to my wife Phoebe out a mere contingency on an event which did not Adam, wishing her to continue the allowance of 301. appen, so as not to interfere with the original gift to per annum to Mrs. James Adam; and also wish 201. he widow of the testator. But the codicil seems to me to be given to each of Henry Cox's children at their to make a great difference. The codicil and the will wedding." There is nothing there, therefore, except a must be taken together, and it appears to me that direction to continue an annuity, which I suppose the upon the true construction of this particular codicil testator had been in the habit of paying to his sisterand will taken together, and without reference to any in-law, and making this disposition in favour of a other authority, the words "at my wife's death I wish friend's children upon their marriages. In my view, all remaining to be for the benefit of Mrs. James the whole case turns upon the words which followSarah Adam and her children," are sufficient to indi- "At my wife's death, I wish all remaining to be for cate an intention to reduce the interest of the tes-the benefit of Mrs. James Sarah Adam and her chiltator's widow to a tenancy for life. "All the remain- dren." There is not a word here which does not reing" is not, I think, to be construed as meaning "all quire very careful consideration. First, the words that shall remain after any expenditure that my widow are, at my wife's death," what is the meaning of may think fit to make," but "all remaining after those words? The ordinary import of these words he particular legacies which I have given;" and at must be "upon my wife's death;" and I cannot agree No. 571, VOL. XI., NEW SERIES.

W W