Sidny v. Ranger.

10th June.-THE VICE-CHANCELLOR :-I have seen the case of Owen v. Foulkes, and I think that it justifies me in making an order according to the prayer of the petition in this case. Sir W. R. Sidny ought to have obtained the leave of the court, before he bid for the estate.

The biddings must be re-opened, and the estate must be again offered for sale. If there is a higher bidder, that person must be the purchaser; but if not, Sir W. R. Sidny must be held to his bargain. In short, an order must be made similar, as far as is compatible with the circumstances of the case, to the order in Owen v. Foulkes. I shall not make any order as to costs, until I know the result of the resale.

The following order was drawn up: Order that the Cold Harbour estate in the pleadings mentioned, be pnt up to auction at the sum of 6707. (the price at which *Sir W. [*121] R. Sidny, in the name of John King, was allowed by

the order made in these causes, dated the 14th of November, 1833, to open the former biddings for the said estate,) and be again resold and it is ordered that the person, if any, that shall be reported as better bidder for the same by the master's further report, within ten days from the time of such bidding, other than the said Sir William Robert Sidny being so reported, make a deposit, after the rate of ten per cent. on his bidding, (the amount to be ascertained by the said master,) into the bank, with the privity of the accountant-general of this court, to be there placed to the credit of these causes, subject to the further order of this court. And, upon the new bidder making such deposit by the time aforesaid, it is ordered that the said Sir William Robert Sydny be discharged from his said purchase: and it is ordered that so much of the bank three per cent. annuities as shall or may be then standing in the name of the accountant-general of this court in trust in these causes, as will be sufficient to raise the sums of 1,1407. 19s.(a) and 1637. 10s., the amounts of the pur

(a) The above order was correctly extracted from Reg. Lib.

Sidny v. Ranger.

chase moneys paid into the bank to the credit of these causes by the said Sir William Robert Sidny, for the said estate and timber, and also the amount of the costs, charges and expenses paid by him for the opening of the said former biddings for the said estate and by reason of his having become and being reported purchaser as aforesaid of the said estate, after deducting therefrom the amount received by him for timber sold by him off the said estate, such amounts to be respectively ascertained by the said master, who is to certify the amount thereof, be sold with the privity of the said accountant-general; and one of [*122] the *cashiers of the bank is to have notice to attend and receive the money to arise by the said sale, who, upon receipt thereof, is to pay the same into the bank with the privity of the said accountant-general, to be there placed to the credit of these causes and it is ordered that the money to arise by such sale, when so paid into the bank, be paid to the said Sir William Robert Sidny: and, for the purposes aforesaid, the said accountant-general is to draw on the bank according to the form prescribed by the Act of Parliament and the general rules and or ders of this court in that case made and provided: but, in default of such new purchaser making such deposit by the time aforesaid, it is ordered such new bidding be void; or, in case there shall be no better bidder, it is ordered that the said Sir William Robert Sidny do complete his said purchase: and it is ordered that the said Frances Munns(a) do thereupon execute a conveyance of the said estate to the said Sir William Robert Sidny; such conveyance to be settled by the said master in case the parties differ about the same. And this court doth reserve the costs of this application: and any of the parties are to be at liberty to apply to this court as there shall be occasion.

Reg. Lib. B. 1840, fo. 745.

The estate was resold in October, 1841, and was purchased, by a gentleman named Parker, for 1,400l., exclusive of timber: and

(a) The trustee for sale of the estate.

Moor v. Raisbeck.

R.

that sum being more than double the price which Sir W. Sidny had paid for the estate, he was ordered to pay the costs reserved by the above order.

*MOOR v. RAISBECK.

[*123]

1841 27th May.

Will-Construction.-Children.

Testatrix bequeathed 1,300l. to trustees in trust, as to one-third, for such of the children of A. S. then deceased, as should be living at the testatrix's death; and, in trust, as to the remaining two-thirds, for the children of S. T. and T. P., living at the same time. S. T. had grandchildren, but no child, living either at the date of the will or at the testatrix's death; but A. S. and T. P. had, each of them, children living at those times. Held, that the grandchildren of S. T. could not claim the benefit of the trust.

Will-Stat. 7 Will 4, and 1 Vict., c. 26.-Construction.-Revoca

tion.

Testatrix devised all her freehold messuages, &c., in S., to trustees in trust to sell and stand possessed of the proceeds in trust for A., and gave the residue of her personal estate, to the trustees, in trust for B. After the date of her will she sold the houses and conveyed them to the purchaser, and he deposited the conveyance and title deeds thereof with her, to secure part of the purchase-money. Held, that the security and the money due on it did not pass, under 7 Will. 4 & 1 Vict. c. 26, s. 23, (the late Will Act,) to the trustees in trust for A., but to the trustees in trust for B.

THE testatrix in the cause, by her will, dated the 24th of March, 1838, directed that her executors and trustees should, at the expiration of six calendar months next after her decease, out of the moneys to be produced from her leasehold and personal estates thereinafter to them given, retain the sum of 1,3002., and should stand possessed thereof upon the trusts thereafter declared concerning the same: and she devised all her freehold messuages, burgages, or dwelling-houses, and hereditaments at Stockton, in the county of Durham, (which formed the whole of her real property,) unto and to the use of the trustees, their beirs

Moor v. Raisbeck.

and assigns, in trust, as soon as conveniently might be after her decease, absolutely to sell, convey and dispose of the same premises; and to stand possessed of the money to arise therefrom, and of the rents and profits thereof until such sale, and of the sum of 1,300l. therein before directed to be retained by [*124] them, upon trust, as to one *equal third part thereof, for such of the children of Ann Stonehouse, widow, then deceased, (the late aunt of the testatrix's late husband,) as should be living at the time of the decease of the testatrix, equally to be divided between or among them, if more than one: and, as to one other third part thereof, the testatrix directed that the same should be in trust for such of the childred of Susanna Tay. lor, (who was another aunt of her late husband,) as should be living at the time of the testatrix's decease, equally to be divided between or amongst them, if more than one; and, as to the remaining one-third part thereof, that the same should be in trust for Thomas Peacock; but, if he should die in her lifetime (an event which happened) the same one-third part should be in trust for such of his children as should be living at the time of the testatrix's decease, equally to be divided between or amongst them, if more than one: and the testatrix bequeathed all her messu ages, lands and hereditaments, situate in the township of Billingham, or elsewhere, and held under several leases for 21 years, under the dean and chapter of Durham, to the trustees, in trust, as soon as conveniently might be after her decease, to sell the same, and to pay, apply and dispose of the proceeds in manner and for the purposes thereinafter expressed: and, after bequeathing certain legacies, she gave all her ready money and money upon securities, plate, china, linen and household furniture, and all other her estate and effects whatsoever and wheresoever, to the trustees, in trust to sell and dispose of, get in and convert the same into money, and to stand possessed of the money to arise therefrom, upon trust thereout to pay her funeral and testamentary expenses, and all the debts which she should owe at the time of her decease, and the sum of 1,300l. therein before di

rected to be retained, and the several other legacies there[*125] inbefore given; and she declared that the residue of

the same trust moneys should be upon trust, as to two equal fourth parts thereof, to invest the same in the usual securities, and to pay the dividends, interest, &c., thereof to her nephew, the plaintiff, James Moor, during his life; and that, after his decease, the same two fourth parts should be in trust for his child and children then living, and thereafter to be born, who should attain 21. Provided, that if all the children of the plaintiff, James Moor, then living and thereafter to be born, should die before any of them should attain the age of 21 years, then the same two-fourth parts should be upon the same trusts as were thereinafter expressed concerning the fourth part of the lastmentioned residue which was thereinafter declared to be in trust for her nephew, the plaintiff, Thomas Darnell and his children. The testatrix then declared the same trusts, as to another fourth part of the residue, for Thomas Darnell and his children, as she had declared, as to the two-fourth parts, for James Moor and his children. And she directed that, after the decease of Thomas Darnell, the income of the shares of such of his children as should be under 21, in the same fourth part, should be applied for their maintenance. Provided that if all the children of Thomas Darnell, then living and thereafter to be born, should die under 21, then the same fourth part should be upon the trusts therein before declared, concerning the two fourth parts, for James Moor and his children. The testatrix then declared that the remaining fourth part of the residue should be in trust for her nephew, John Darnell, since deceased, during his life, and that, after his decease, one moiety thereof should be upon the same trusts as were thereinbefore declared, concerning the two-fourth parts, for James Moor and his children, and the other moiety thereof, upon the same trusts as were therein before declared, concerning *the fourth part, for Thomas Darnell [*126] and his children. And she gave, to her trustees, their

heirs and assigns, all such real estates as, at the time of her death, should be vested in her by way of mortgage, in order to enable them with greater ease and convenience to recover, receive and get in the moneys secured by such mortgages for the purposes of her will.