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DYING WITHOUT ISSUE.

I HAVE received so many various and conflicting opinions on No. 5 Moot Point (page 11), all of which, however, agree in thinking that, before the new law, A would have taken an estate tail, and then various opinions are mooted about the estates of B and C, of the intention of the testator, &c., that I have ventured to send up an answer which, with your permission (if found correct, as I have every reason to think it is), might with advantage be inserted.

By reference to cases decided, and books published before the passing of the Wills Act, it appears that the twenty-ninth sec. thereof does not need to be applied to such a point as this, and I, therefore, omitted the date of the will, viz., 1826. In "Worthington on Wills," published in 1823, page 220, are these words :-" Where a testator devised to his son, Thomas Brown, and his heirs for ever, and if he died without issue, leaving William his brother, that then William his brother should have those lands to him and his heirs for ever. It was adjudged that Thomas Brown took a vested fee simple, and that the limitation over to William was good, as an executory devise, to take effect on Thomas's dying without issue in the lifetime of William (Pells v. Brown, Cro. Jac. 590., 1 Eq. Abr. 187),” and, at page 229-"A devise to S. S., her heirs and assignees for ever; but if she shall happen to die leaving no child or children lawful issue of her body living at the time of her death, then to F. B. and his heirs. It was held that the devise in fee was not restrained by the subsequent words to an estate tail, and that the devise over to F. B. was a good executory devise (Doe dem. Barnfield v. Wetton, 2 Bos. and Pull. 324)." I have also seen an opinion, given in 1818 by Edward B. Sudgen (now Lord St. Leonards), upon a case where the testator gave an estate in fee among all his children as they respectively should come of age. But if any of his sons or daughters should die without issue, his or her share to be divided among his surviving sons or daughters, or their children. Now (says the opinion) here the fee is first given to the children, and then it is cut down by the words after this could not be the intention; and accordingly in Doe v. Sparrow, 13 East. 359, which went into court upon my opinion, it was held that the testator must, in a case like this, be held to refer to a death in his lifetime. That, I think, is the true construction of this will For these and other reasons I am of opinion that, in this moot point, A takes an estate in fee in the premises, and that he can now make a good title without the concurrence of B. and C. I am, &c.,

W. G. BRIGHTEN.

MOOT POINTS.

No. 9.-Will-Cross remainder.-B. by his will, dated 1856, gave and bequeathed the sum of £1,000 to his four children C., D., E., and F. But, if either of his children died under twenty-one, then he gave and bequeathed the said sum to the survivors or survivor; C. attained twenty-one, and died in 1860, leaving one son; E. afterwards died under twenty-one ; D. and F. are still living, and have both attained twenty-one. To whom will the share of E. belongwhether to D. and F.? or will the son of C. be entitled to stand in the place of his father?-THOMAS DALLOW, 8, Cleveland-road, Wolverhampton.

No. 10.-Trustees to preserve contingent remainders-Estate of.— In a settlement of real estate the limitation is to A. and B. and their heirs, to use of the intended husband for life; then to the said A. and B. and their heirs in trust to preserve the contingent remainders thereinafter limited, and to permit the intended wife to receive the rents and profits for her separate use during her life, and after the decease of such wife to the use of the first and other sons of the marriage in tail male, with remainders to the daughters in tail general. Then in default of such issue follow some uses, and among others the following:-"To the use of the said A. and B., and their heirs, upon trust, to pay the rents and profits to a niece of the settlor, for her separate and inalienable use and benefit." And there is also another similar limitation (intermixed with the mere uses), and upon a somewhat similar trust. It has been contended on the one hand that the entire legal fee is executed in A. and B., and all the uses subsequent to the husbands are therefore mere trusts, because the limitation to preserve the contingent remainders was not, as it ought to have been, confined to the estate of the tenant for life; but, on the other hand, it is contended that some of the limitations subsequent to the estate for life being to the same trustees and being in fee, makes it manifest that the limitation to the trustees to preserve did not give them the legal fee. Which party is right?-A. D.

No. 11. Covenant to produce-Separate-Preparation ofCosts. A contract for sale, making no provision for a covenant to produce, and the vendor retaining a part of the property to which the title-deeds relate exceeding in value the property contracted to be sold, the purchaser's solicitor insists on having a separate deed of covenant, and contends that he is entitled to prepare it, and that the vendor must pay his costs of the preparation, and also bear his own solicitor's costs of perusing and executing such separate deed. The vendor's solicitor, on the other hand, contends that the purchaser is not entitled to a separate deed at the expense of the vendor, as he

ought to insert the covenant in the purchase-deed; that if the purchaser will have such a separate deed he ought to bear the expense thereof; or that if the vendor is to bear the expense of such deed his solicitor is entitled to prepare it, and that the purchaser must bear his own solicitor's costs of perusing the draft. These points are so practically important that I trust you will give insertion to this communication, and I shall be glad to see the result of any correspondence thereon inserted in your publication. P. Q.

No. 12.-Limitation of estate of trustees to heir of survivor.— In an old settlement of real estate the limitation to the trustees is framed thus:- "To hold to the said A. B. and C. D., and the survivor of them, his heirs and assigns for ever." I am told that this was not an unusual form, and that it is even now had recourse to, and, further, that it is very appropriate. I do not see this, and the book to which I have been referred (Burton's Comp., pl. 749) does not support this view, for the author is speaking of a conveyance to two persons, and the heirs of one of them, which makes the two grantees joint tenants for their lives, with a remainder to the one in fee. But then it is evident the person who is to take the remainder is ascertained and named, which is very different to a limitation to the one who may prove to be the survivor. I observe that Mr. Burton (pl. 293) says that on a devise in the form first mentioned, " upon trust to sell or mortgage," it is generally agreed that the evident intention of the testator is sufficient to give the fee simple to the trustees jointly. But I am speaking not of a will, but of a settlement, and one in which there is no trust, but the limitations are by way of use, and the other provisions are mere powers, and not trusts. My question is as to the estate taken by the trustees, or rather relessees to uses-whether a joint estate in fee, or a joint estate for life, with a remainder in fee to the survivor ? W. S.

No. 13.-Dower.-A. B. possessed half of the entirety and twoeighths and one-third of one-eighth of the remaining half of eight messuages and tenements, and contracted to sell his shares to C. D.; the wife of A. B. (being entitled to dower if she survived A. B.) was requested to join in the conveyance, but C. D. not offering her a sufficient compensation, she refused to join, and the shares were conveyed subject to her right of dower. A. B. is now dead, and the widow has given notice to C. D. that she claims dower. If she accepts one-third of the rents which those shares produce, can C. D. deduct any portion thereof for repairs? Is she liable to any rates and taxes? Coke says that tenant in dower under the old law was subject to neither tolls nor taxes. I presume that C. D. could assign her one-third of the shares instead of paying her the onethird of the rents. I should be glad of a reference to any cases upon the matter.-HENRY SHRAPNELL, Barton Orchard, Bradford-on Avon, Wilts.

No. 14.-Leaseholds devised in succession-Conversion -A testator bequeaths freeholds and leaseholds to his trustees upon trust to pay the rents and profits thereof to his widow for life, and after her decease to his daughter for life; and after her decease for her children equally. He empowers his trustees, in case they shall think it desirable, and in their absolute discretion, to sell his freeholds and leaseholds at any time or times, and to invest the produce. Are the trustees bound to convert the leaseholds within any and what period after the testator's death? or may they continue them in an unconverted state as long as they please? I am informed that two opinions of counsel have been taken, and that they clash, but I confess I cannot see any great difficulty about the matter.-LEX.

No. 15.-Acknowledged deed.-Will you insert the following in your next number, and request the opinion of any of your correspondents thereon, which I shall be glad to receive if they will so kindly favour me, direct, and for that purpose append my address :A. being possessed of leaseholds for years, including several large collieries, makes his will and appoints B. executor. B. dies in the lifetime of A. intestate. A. makes no further appointment and dies. Administration is granted to C. (A.'s sister), the wife of D., who has contracted to sell the collieries. C. is beneficially entitled, as one of A.'s personal representatives, to a portion of the proceeds of the sale. Should the deed by which the collieries are assigned be acknowledged by C., under the Fines and Recoveries Act, either in respect of her fiduciary position or pecuniary interest? The words of the Act are "Lands of any Tenure," and it may be said that the collieries are lands of a leasehold tenure. If the words in the Act do not embrace leaseholds and such like, to what do they refer ? According to the best commentators (Blackstone among the rest), leaseholds for years are clearly not within the purview of the Act above-mentioned.-P. HARRIS, Town Clerk's Office, Bradford, Yorkshire.

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No. 16.-Assault Summary conviction Affiliation order— Husband condoning adultery.-If you consider the following points worth notice I should be glad if you would insert them in your next CHRONICLE, SO that I may receive the views of your subscribers thereon. [For such purposes you should have sent your name and address.-ED.]-Where a party, being summoned before the Justices of the Peace, is summarily convicted of an assault under 9 Geo. IV., c. 31, s. 27, by which the justices have power to convict in any sum not exceeding £5, inclusive of the fine and costs, or, in default, two months' imprisonment, and the magistrates, after consultation, return the following decision:-"We convict defendant in the penalty of £5 and costs," which the Act does not empower them to do. On this being pointed out to them by the defendant and the magistrates'

clerk, can they before the termination of the Petty Sessions, on discovering their error, alter the same? or must not the conviction be drawn up in strict conformity with the decision, in which case, in my opinion, the conviction would be totally illegal, and defendant not liable even to pay the £5? The warrant of commitment is put in force, the £5 is paid by defendant under protest: will not an action at common law lie against the justices? I should be glad to receive the views of your correspondents hereon. Another question is as follows:-A man is absent from his wife for several years. During that time she is living in adultery with another man, by whom one child is born to her. She obtains an order (although herself a feme covert) from the justices upon this man, for a stated sum per week for the maintenance of this child. Her husband ultimately returns, receives notice of her adultery with this man, but still continues to cohabit with her. Is the husband or the man upon whom the order was made then liable for the support of the child? I should also be glad of the views of your correspondents on this query.-(As regards the method to be observed respecting moot points, I consider the course adopted in the old "Law Chronicle" is far preferable to the present system-that the numbers should follow on consecutively, and not commence afresh each month; and that the answer should be sent to you, and each inserted according to its number, so that then all your subscribers would see each query and the difference of opinion in the replies to the same.)-X. Y. Z.-[The mis-numbering was a mistake. The numbers are intended to run on to the end of each volume. With respect to the insertion of answers to the moot points, we think it best to omit them. The insertion of them was a standing cause of complaint by those of the subscribers to the "Law Chronicle" who did not themselves send up moot points and answers, and it would be the same now, and with greater reason, as our space is at present much more limited, and will be so, even after the proposed increase in size. The real object of the moot points is to encourage the correspondence system. When we have more space we may insert a few well-considered answersthat is, such as have resulted from correspondence.-ED.]

No. 17.-Reconveyance of mortgaged estates.-A., having advanced £500 to B. on a mortgage security, died very suddenly. A coroner's inquest was held on his body, and the jury returned a verdict of felo de se. A. had made and duly executed a will a month preceding his death, whereby he appointed John Stiles executor thereof. John Stiles presented a petition to the Lords Commissioners of the Treasury, praying them to waive the right of the Crown to the property and effects of the deceased, which request was granted. B. is now desirous of paying off the mortgage debt of £500. Can John Stiles, the executor, give a valid reconveyance to B.? Does the

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