Stokes v. Wilson.

and that the order was made upon her as plaintiff. He [*91] referred to Bunyan v. Mortimer, (a) *where it was clear the order would have been made if the married woman, a defendant, had been previously directed to answer separately. In this case Mrs. Ottway, by her own act, had placed herself under the liabilities of a feme sole. He also mentioned Bell v. Hyde.(b)

The Vice-Chancellor, after conferring with the registrar, observed that Mrs. Ottway having, as plaintiff, constituted herself a single woman for the purpose of the suit, she must take the consequences of disobeying the orders of the court made upon her as plaintiff; and his honor gave leave to issue the attachment against her as a feme sole.

The court refused to extend the common injunction to stay trial, where the plaintiff in equity was served with notice of trial on the 28th of January, but did not file his bill till the 16th of March, and made the motion on the commission day of the assizes at which the action was to be tried.

MOTION to extend the common injunction to stay trial.

The action was commenced in August, and notice of trial was served on the 28th of January. On the 16th of March, the bill was filed; and Stokes, having obtained the common in junction, moved on this day (which was the commision-day at Chester where the action was to be tried,) to extend it to stay trial.

Mr. Knight Bruce in support of the motion.

Mr. Wigram and Mr. Koe opposed it on the ground that the defendant had been guilty of laches in not filing his bill earlier (a) Madd. & Geld. 278.

(b) Pree. in Chanc. 328.

Jackson v. Marjoribanks.

than the 16th of March, although he had been served with notice of trial so long ago as the 28th of January. They added that the day on which the motion was made, was the commission-day at Chester, and that the action was expected to be tried on the day following. Blacoe v. Wilkinson, (a) Field v. Beaumont,(b) Thorpe v. Hughes.(c)

Mr. Knight Bruce, in reply, said that, if there had been any delay, his client was willing to give ample security for the costs which the plaintiff in the action might have incurred in consequence of it.

The Vice-Chancellor said that this was a case of greater negligence than Thorpe v. Hughes, and refused to grant the application even on the terms of Stokes giving security for costs.

Motion refused with costs.

1841: 2d April.

*JACKSON. v. MARJORIBANKS.

[*93]

Will.-Construction.-Remoteness.

Testator gave his real and personal estates to trustees, and directed them to invest his personal estate in the purchase of land, and to pay the rents, subject to certain annuities, to his son, for life; and, in case his son should die, leaving behind him no legitimate issue, then he directed the trustees to pay the rents to his, the testator's, widow for life; but in case his son should die leaving behind him legi. timate issue, then, at the end of six months after the eldest male child then living of his son, should have attained twenty-five, or, in default of male issue, the eldest female child then living of his son, should have attained twenty-one, to convey all the estates to the eldest male child, or, in default of male issue, to the eldest female child and to his or her heirs of his or her body lawfully begotten, absolutely or ever. The testator then (in case his son should die during the minority of such eldest male or female child) provided for their maintenance out of the rents until he or she should attain the respective ages before mentioned, and then de

(a) 13 Ves. 454.

(b) 3 Madd, 102; and 1 Swaps, 204.

(c) 3 Myl. & Cr. 742.

Jackson v. Marjoribanks.

clared that, in case his son should not die during such minority, his estates should continue on the trusts aforesaid until six months after his son's death, and then pass to his son's eldest male or female child in manner before expressed; and in case his son should die leaving no legitimate issue, then that the trustees should, after the death of the testator's wife, convey the estates to certain other persons. The testator's son married, and had a son born after the testator's death. The court held the trust for the grandson not to be void for remoteness; and the grandson having survived his father and attained twenty-one (but being under twenty-five,) and all the annuitants being dead, ordered the estates to be conveyed to him.

WILLIAM COLLINS JACKSON, by his will, dated the 15th of November, 1808, gave, devised and bequeathed unto and to the use of trustees, their heirs, executors, administrators and assigns respectively, all his freehold messuages, lands, tenements and hereditaments, whereof he was seised in fee, as well as all those his copyhold lands, messuages, tenements, and hereditaments, which he had surrendered to the use of his will, situate in the parish of Langley Marsh, in the county of Buckingham, upon the trusts thereinafter declared concerning the same: and he gave and bequeathed all his leasehold estates, [*94] as well for lives as *for years, together with all his personal estate, to the same trustees, their heirs, executors and administrators respectively, according to the nature of the several estates, upon the trusts thereinafter declared concerning the same: (that is to say) upon trust, within 10 days after his decease, to pay 800l. to his wife, Jane Jackson, and to surrender to her disposal certain goods and chattels therein specified: and upon further trust to sell and dispose of, within one year after his decease, or as soon after as possible, all his landed estates, (except the estate situate in the parish of Langley Marsh.) and all his property in the funds, East India stock, and bonds and mortgages, together with all his personal estate, save as thereinbefore excepted, and to apply the produce in the purchase of freehold lands on which there should be no capital mansion, in one of the counties of Buckingham, Hertford, Berks, Surrey, Kent, or Middlesex, upon trust, out of the rents, interests, rights and profits arising from the freehold lands so directed to be purchased, and also out of the rents, interests, rights, issues

Jackson v. Marjoribanks.

and profits arising and accruing from the estate in the parish of Langley Marsh, to pay, in the first instance, an annuity of 800%. to his wife Jane Jackson during her life: and upon further trust to pay, in the second instance, one other annuity of 100% to his mother, Eliza Jackson, during her life; and upon further trust to pay, in the third instance, one other annuity of 500l. to his son, William Collins Burke Jackson, during his life; and, if it should happen that the rents, issues, interests, rights, profits and advantages of all his estates should not be equal, with the aforesaid incumbrances thereon, to the full payment of the said annuity of 50%. to his son, then he directed that the surplus of the said rents, issues, &c., after the payment of the annuities to his wife and mother, and *after all legal de- [*95] ductions, should be delivered over to his son, William C. B. Jackson, for his own use and benefit during his life: and upon further trust, in the event of either or both of the annuities of 800% and 100%. falling in by the death of the annuitants, then he directed that the amount of the annuity so falling in, should be transferred to his son, William C. B. Jackson, for his own use and benefit during his life, in addition to the annuity of 5001: and upon further trust that, in case his son, William C. B. Jackson, should depart this life, leaving behind him no legitimate issue, then that the trustees should pay the whole of the said rents, issues and profits to his wife, Jane Jackson, during her life, except the annuity of 100l. to his mother, Eliza Jackson and upon further trust that, in case his son, William C. B. Jackson, should depart this life leaving behind him legitimate issue, then that the trustees should, at the end of six months after the eldest male child then living of the body lawfully begotten of his said son, William C. B. Jackson, should have attained the age of 25 years, or in default of male issue, the eldest female child then living of the body lawfully begotten of his said son W. C. B. Jackson, should have attained the full age of 21 years, convey, assign and transfer, in such manner as counsel should advise, all his said estates, together with all rents, interests, rights, profits and advantages accruing or that might have accrued therefrom unto the said eldest male child, or in

Jackson v. Marjoribanks.

default of male issue, unto the said eldest female child, and to his or her heirs of his or her body lawfully begotten absolutely for ever, subject to and chargeable nevertheless with the payment of the annuities of 800l. and 100l. as aforesaid: and upon further trust that, in case his said son, W. C. B. Jackson, should

depart this life during the minority of the said eldest [*96] male child or the said eldest *female child, as the case might be, then his will was that, from and after the decease of his said son, the annual sum of 5001. should be appropriated for the maintenance and education of such eldest male child or of such female child, as the case might be, until he or she should have attained their respective ages already expressed and declared; provided, nevertheless, that the appropriation of such annual sum, should not interfere with the two annuities of 800%. and 100% and upon this further trust that, in case his son should not depart this life during the minority of the said eldest male child, or the said eldest female child, as the case might be, then that all his said estates should continue on the trusts aforesaid until six months after the decease of his said son William C. B Jackson, and, at the expiration of that period, pass to the said eldest male child or to the said eldest female child as the case might be, in the way and manner already expressed and declared; and upon this further trust that, in case his said son, William C. B. Jackson, should depart this life leaving behind him no legitimate issue, then, at the expiration of six months after the decease of his wife, Jane Jackson, the trustees should convey, assign and transfer, by such advice as aforesaid, (there being at the time no lineal descendant of his, the testator's, body lawfully begotten,) all his said estates, together with all rents, issues, interest, rights, profits and advantages accruing or that might have accrued therefrom, unto certain other persons in manner therein mentioned: and the testator appointed the trustees, his executors.

The testator died in 1814, leaving his son named in his will, his only child, his heir at law and customary heir, and his mother and wife, him surviving. The testator's son