Glover v. Webber. [*351] 1844 26th February. *GLOVER v. WEBBER. Practice.-Next friend.—Infant. Where the next friend of an infant plaintiff dies, the proper order for the defendant to obtain, is not that the infant may appoint a new next friend within a given time, or that the bill may be dismissed: but that the Master may approve of a new next friend: and four days' notice of the order must be given to the plaintiff's solicitor. THE next friend of the infant plaintiffs in this cause having died before decree, Mr. Randell obtained an order, on behalf of the defendant, that the infants might appoint a new next friend within a given time, or that the bill might be dismissed. But the registrar, Mr. Bedwell, conceiving that the order, so far as it directed the bill to be disinissed, was not warranted by the practice of the court, the motion was again mentioned on this day: end Mr. Randell then produced the following extracts from Reg. Lib., with which Mr. Bedwell had furnished him. Friday, 26th March, 1742. Between Susanna Ludolph, an infant, by Jacob Conen, her next friend, deceased, Plaintiff. William Saxby and Sarah his wife, and Anne Ludolph, Defendants. UPON the defendants, William Saxby and Sarah his wife, their humble petition, this day preferred unto the right honorable the Lord High Chancellor, &c., showing, among other things, that the said Jacob Conen, the plaintiff's next friend, is dead, as by affi davit therein mentioned appears: It is ordered that it be referred to Mr. Edwards, the master, to whom this cause stands referred, Glover v. Webber. within four days after notice hereof to the plaintiff's clerk in court, to consider of a proper person to be prochein ami for the plaintiff, in the room of the *said Jacob Conen, [*352] deceased and that such person as the said master shall approve of, be the plaintiff's prochein ami.-B. 1741, fol. 279. Thursday, 22d March, 1781. Between the right honorable Mary, Countess Dowager of Shel- Plaintiffs. Defendants. UPON the humble petition of the defendant, the Earl of Inchiquin, this day preferred to the right honorable the Master of the Rolls, setting forth (among other things,) that the plaintiffs exhibited their bill in this court against the petitioner and others, to which bill the petitioner hath put in his answer, and obtained an order to examine a witness de bene esse: That the said plaintiff, the Countess Dowager of Shelburne, the prochein ami of the plaintiff, the infant, being dead, the petitioner is advised that objection may be taken to the regularity of such examination : That the petitioner hath applied to the plaintiff's clerk in court, requesting that a new prochein ami may be appointed in the room of the said Countess Dowager of Shelburne, but says he has no instructions, although he has applied to the said infant's solicitor for that purpose: It is thereupon ordered that it be referred to Mr. Eames, one of the Masters of this court, within four days after notice hereof to the plaintiff's clerk in court, to approve of a proper person to be prochein ami for the plaintiff, the infant, in this cause, in the room of the said Countess Dowager of Shelburne; and that such person as the *said Master [*353] shall so approve of, be the plaintiff's prochein ami; and that the plaintiff's bill be amended by inserting the name of the person who shall be so approved of by the said master as the Griffiths v. Gale. plaintiff's prochein ami, instead of the name of the plaintiff's said late prochein ami, now dead; and hereof notice is to be given forthwith.(a)—A. 1780, fol. 157. THE VICE-CHANCELLOR :-The order ought to be made according to what has been done before. I shall follow the case of Ludolph v. Saxby as nearly as may be. Refer it to the master to approve of a new next friend, and give the plaintiff's solicitor four days' notice of the order now made.(b) [*354] *GRIFFITHS v. GALE.-Ex parte JAMES JONES, the Administrator of STEPHEN JONES. Appointment.-Lapse.-Construction.-New Will Act, 7 W. 4, and 1 Vict. c. 26. 1844: 11th March. The enactment in the New Will Act, that a bequest to a child of the testator who dies in the testator's lifetime, leaving issue living at the testator's death, shall not lapse, does not apply to a testamentary appointment. A SHORT report of this case, as it came on to be heard on the 23d of February last, is given ante, p. 327. In pursuance of the permission then given, the case was again argued on this day; and, as it raised a question of considerable importance, it has been deemed advisable to give a fuller statement of the facts than the former report contains. (a) See also Lancaster v. Thornton, Amb. 398, in which Ludolph v. Saxby and Lady Shelburne v. Lord Inchiquin, are referred to. (b) See Bracy v. Sandiford, 3 Madd. 468. If the next friend of a married woman dies, the court will order her to appoint a new next friend within a certain time, or the bill to be dismissed. Barlee v. Barlee, 1 Sim. & Stu. 100. Griffiths v. Gale. By an indenture dated the 26th of July, 1794, being the settlement made in consideration of the marriage which had been solemnized between Mary Moffatt Walbancke and John Jones, the sum of 2,000l. stock, the lady's property, was assigned to trustees, in trust for her separate use for her life; and, after her decease, in trust for John Jones for his life; and, after the decease of the survivor of them, in case there should be only one child or two or more children of the body of Mary Moffatt Jones, in trust to transfer the stock to the same one only child, or unto and amongst all and every or such one or more of the same children, at such age or ages, and in such parts, manner and form as John Jones and Mary Moffatt his wife, at any time or times during their joint lives, by any deed or deeds, to be by both of them sealed and delivered in the presence of two or more credi ble witnesses, should direct or appoint; and, in default of such joint direction or appointment, then as Mary Moffatt Jones, in case she should survive John Jones, should, at any time. or times after his death, *notwithstanding any future [*955] coverture, by any deed or deeds, writing or writings with or without power of revocation, to be by her executed as aforesaid, or by her last will and testament in writing, or by any writing purporting to be or in the nature of her last will and testament or a codicil or codicils, to be by her signed and published in the presence of the like number of witnesses, should direct or appoint: and, in default of and subject to such direction and appointment, unto all and every the child and children of Mary Moffatt Jones lawfully begotten or to be begotten, to be equally divided between or amongst them, if more than one, and, if there should be but one such child, then the whole to such one child, to be vested interest in a son or sons on attaining 21, and in a daughter or daughters on attaining that age or previous marriage, with benefit of survivorship between such children if any or either of them should die without attaining a vested in terest. There was issue of the marriage four children, William, Stephen, James and John. William died intestate in July, 1833, Griffiths v. Gale. and his brother John took out administration to him. John Jones, the father, died in January, 1839. By a deed-poll dated the 5th of August, 1839, Mary Moffatt Jones, in exercise of the power reserved to her by the settlement, directed one-third of the 2,000l. stock to be transferred, immedi ately after her decease, to James Jones. She made her will on the same day, and thereby, after appointing her sons, John, Stephen and James her executors, and after reciting the settlement and the appointment which [256] she had made, of one-third of the stock, in favor of James, she, in exercise of the power reserved to her by the settlement, appointed the remainder of the stock to John and Stephen, in equal shares, as tenants in common, their executors, &c. and, subject to the payment of her debts and funeral and testamentary expenses, she gave all the real estate which she then was, or, at the time of her death, might be seised of, or entitled to for any estate or interest whatsoever, and also all her personal estate and effects whatsoever and wheresoever, to John, Stephen and James in equal shares as tenants in common, and to there respective heirs, executors, &c. Stephen Jones died in October, 1843, intestate and a widower, leaving six infant children, all of whom were still living; and administration to his estate, during their minorities, was granted to James Jones. Mary Moffatt Jones survived Stephen, and died on the 14th of October, 1843. Mr. Bethell, in support of the petition which was presented by James Jones, who claimed to be entitled, as administrator to his brother Stephen, to the one-third of the 2,000l. stock appointed to Stephen, said that the will was made by Mary Moffatt Jones when she was discoverte, and that it contained not only an ap pointment of the property over which she had a power of appointment under the settlement, but also a disposition of property of which she was the owner; and, therefore, it was a will in the |