Stammers v. Halliley. he had given to or settled, upon his five daughters, fortunes in money, which he was satisfied his property would allow of being increased, he gave, to each of them, the sum of 500l., and directed it to be paid to them, with interest at 5l. per cent., without being settled on them, by two equal instalments, one at the expiration of one year, and the other at the expiration of two years after his death. The testator made another codicil, dated the 29th of May, 1828, by which, after reciting that he had, by his will, given, to his wife, a legacy of 1,000l., he revoked that legacy, and bequeathed to her a legacy of 3,000l. in lieu of it. The testator died on the 16th of August, 1828. His [*43] assets having proved insufficient to pay the legacies *given by his will and codicils, in full, one question in the cause was whether the legacies given by the first codicil were to be postponed to those given by the will. Mr. Jacob and Mr. Prendergast, for the plaintiff, and Mr. Knight Bruce and Mr. Elmsley, for defendants in the same interest, said that as the testator, in the codicil in which he gave the additional legacies to his daughters, had expressed his satisfaction that his property would allow of the fortunes which he had provided for them by his will, being increased, he had declared, in effect, that he did not intend those additional legacies to be paid, unless his property should be more than sufficient to pay the legacies given by the will, in full. They relied on The Attorney-general v. Robins.(a) Mr. Girdlestone and Mr. Goulburn, for the defendant, Joseph Stammers, contended that the legacies given by the will and those given by the codicils, were to be paid pari passu. They cited Beeston v. Booth, (b) and Blower v. Morret, (c) and added that the passage in the first codicil, which had been relied on by the plaintiff's counsel, expressed nothing more than what was in the (a) 2 P. W. 23. (b) 4 Madd. 161. (c) 2 Vez. 420. Stammers v. Halliley. mind of every testator, and was the natural inference from the act of giving legacies; for every testator was satisfied that his property would be fully sufficient to pay all his legacies: that the language of the testator in The Attorney-general v. Robins, differed, materially, from that used by the testator in the present *case; for, there, the testator said merely that he [*44] apprehended that there would be a surplus of his personal estate; so that he expressed a doubt upon the subject, and it was to be inferred that he had given the further legacies with reference to that doubt; but, in the present case, the testator said that he was satisfied that his property would be more than sufficient to pay the legacies given by his will: that, at all events, there was no ground whatever for contending that the legacy of 3,000l given by the second codicil, was to be paid in priority to the legacies given by the first codicil. THE VICE-CHANCELLOR:-I have read through the will and codicils, and I can not say that I see any substantial distinction between this case and the case of The Attorney-general v. Robins. It is observable that, in that case, the M. R. says that the legacies at the latter end of the will, were given on the presumption that there would be a surplus; and, afterwards, he says that the codicil must be taken as part of the will. But, in the codi. cil, the testator provides for there being a deficiency; which does not show that he had a very strong presumption or apprehension that there would be a surplus. However, that case is so like the present, that unless it involves some clear violation of principle, (which I do not think it does,) I must be bound by it. Here the second codicil does not increase the fund, nor does it show that the testator had altered the view which he took of the amount of his property when he made his first codicil. Indeed the second codicil confirms(a) *the first, as it [*45] (a) The second codicil, as set forth in the brief, with which alone the Reporter was furnished, contained no express confirmation of the first. Upton v. Sowton. stood at the time, that is, with the expression of satisfaction in it. Therefore, if there is any distinction between this case and The Attorney-general v. Robins, this case is the stronger one for holding that the legacies given by the first codicil, are postponed to those given by the will, and also to the 3,000l. given by the second codicil. A plaintiff having died before the defendant had answered, his representative filed a bill of revivor and supplement, praying that the defendant might answer it, and also the original bill. The defendant put in an answer, which was intituled as his answer to the original bill of the plaintiff, "since deceased." The answer was ordered to be taken off the file. BEFORE the defendant had answered the original bill, the plaintiff died. His personal representative then filed a bill of revivor and supplement, praying that the defendant might answer it, and also the original bill. After the suit had been revived, the defendant put in an answer, which he intituled as his answer to the original bill of the plaintiff, "since deceased." Mr. Lowndes now moved that the answer might be taken off the file, for irreg ularity. He said that no indictment for perjury could be sus tained upon it. He also referred to Vigers v. Lord Audley.(a) Mr. Renshaw, contra, said that the answer stated, in the body of it, that the suit had been revived. He cited Sayle v. Graham.(b) [*46] *THE VICE-CHANCELLOR said that a plaintiff had a right to have an answer rightly intituled; that the answer (a) Ante, Vol. IX. p. 408. (b) Ante, Vol. V. p. 8. Simeon v. Davis. which had been filed, purported to be an answer in a suit which had wholly abated, and, therefore, the title was wrong. But, as the second suit was described, in the notice of motion, to have been commenced by bill of revivor only, and not by bill of revivor and supplement, his Honor made the order without costs. SIMEON V. DAVIS. Practice.-Injunction.-Impertinence.—Answer. 1841 9th March. Exceptions to an answer for impertinence can not be shown as cause against dissolving a special injunction. AN injunction had been obtained ex parte. The answer having been filed, a motion was now made to dissolve it. Mr. Keene, for the plaintiff, showed exceptions taken to the answer for impertinence, as cause against dissolving the injunc tion. He cited Raphael v. Birdwood.(a) Mr. Jacob, for the defendant, said that exceptions to an answer, whether taken for impertinence or for insufficiency, could not be shown as cause against dissolving a special injunction: that, in the case cited, the injunction, though said to have been special, could have been nothing more than the common injunction which had been extended to stay trial. THE VICE-CHANCELLOR:- Under the new orders of the court, an answer cannot be referred, generally, for impertinence, but the matter alleged to be impertinent, must be speci- [*47] fied by way of exception. Why then may not the answer in this case be taken as an answer, disregarding those parts of it which have been excepte to as being impertinent? I see no reason why this motion should not be proceeded with. (a) 1 Swanst. 228 Castellain v. Blumenthal. 1841 9th March. CASTELLAIN v. BLUMENTHAL. Practice.-Affidavits.-Injunction. On showing cause against dissolving an injunction, the plaintiff cannot read affidavits to prove allegations, in the bill, of matters of fact, which the answer neither denies nor admits. AN order nisi to dissolve the common injunction having been made on the coming in of the answer, Mr. Knight Bruce and Mr. L. Wigram, on showing cause against the order being made absolute, tendered an affidavit to prove allegations in the bill as to which the defendant said he did not know nor could he set forth whether they were true or not. They cited Morgan v. Goode, (a) Hodgson v. Dean, (b) and an unreported case of Ord v. White, (c) before the Master of the Rolls in the winter of 1840, in which the question as to the admissibility of affidavits to substantiate allegations in the bill, as to which the answer stated that the defendant was ignorant, was much discussed; and the Master of the Rolls, though he decided the motion independently of the affidavits, yet said that, as the point had been much discussed, he would express his opinion that the affidavits were admissible. [*48] *Mr. Jacob and Mr. Bacon, contra, objected to the af fidavits being read, and cited Barrett v. Tickle.(d) The Vice-Chancellor said that the opinion of the Master of the Rolls was extra-judicial, as he decided the case independently of the affidavits: that a party who moved for an injunction, or showed cause against the dissolution of it on an answer, was bound by the answer: that it had been repeatedly decided, and he considered it as settled, that affidavits to prove facts as to (a) 3 Mer. 10. (b) 2 Sim. & Stu. 221. (c) Since reported in 3 Beav. 357. |