Wellesley v. Wellesley; The Countess of Mornington v. The Earl of Mornington. plaintiff suing in formâ pauperis, was only entitled to such costs as she had sustained out of pocket; but no cases were cited. Rolt, Willcock, and Freeling, for Lady Mornington, argued that being successful, her ladyship was entitled to the costs in the same manner as any other suitor, and relied on, as a modern authority, the case of Rubery v. Morris, 1 Hall & Tw. 400; s. c. 1 Mac. & Gor. 413; 18 Law J. Rep. (N. s.) Chanc. 444, where Lord Cottenham laid it down that it was "most consistent with principle, and most reconcilable with the weight of authority, to hold that any party asserting an unfounded claim by a bill, or resisting a well-founded claim by answer, should not profit by the poverty of his opponent, but should, upon failure, pay the ordinary costs of the litigation." KNIGHT BRUCE, L. J. The reason is plain enough; professional men are engaged to afford their aid and experience to the pauper, and not to the pauper's opponent. These costs ought, in my opinion, according to the weight of authorities, to be dives costs; but then comes the difficulty, there being no next friend to whom they are to be paid. The Countess is a married lady, and therefore the Earl would be entitled to the money when paid. I can hardly conceive it possible that Lord Mornington will interfere with their receipt. Lloyd. Lord Wellesley, the unsuccessful appellant, is in this dif ficulty; that he is ordered to pay costs, and confessedly, the hand to receive those costs is uncertain. He may incur hazard of double payment should he pay to the wrong person. LORD CRANWORTH, L. J. If the court had authority to permit Lady Mornington to sue without a next friend, and that authority has not been called in question, it has now authority to do all necessary acts consequential upon it. The costs must be the usual dives costs, and the order will be made in the ordinary way; and, on the one hand, if there be any difficulty raised whether Lady Mornington can receive them, her ladyship can come to the court, while, on the other hand, if Lord Wellesley finds any difficulty on the point spoken of on his behalf, he, too, can come here, and this court will hear him. At present the order is, that the appeal be dismissed, with costs. 13* Footner v. Sturgis - Wiggins v. Wiggins. FOOTNER v. Sturgis.1 July 8, 1852. Judgment Creditor-Foreclosure—Sale. On a claim by a judgment creditor against his debtor in respect of certain real estate belonging to the debtor, the Court refused to give a decree of foreclosure. THIS was a claim filed by a judgment creditor seeking to have the benefit of his judgment against some real estate belonging to the debtor. Hallett, for the plaintiff, asked for a foreclosure, and cited Ford v. Wastell, 2 Phill. 591, in which case it appeared that a decree for foreclosure had been made at the instance of a judgment creditor. PARKER, V. C., declined to give a decree for foreclosure, and made an order for the sale of the property. WIGGINS V. WIGGINS.1 April 30, and May 5, 1852. Will-Construction- Residuary Bequest-Children living at Death A testator gave to his wife all his stock in trade, working jewelry and implements of every description whatsoever, and all his book debts, ready cash, money in the funds, bills, bonds, notes, or other securities whatsoever, for her life, if she should so long continue his widow; but at her death, or second marriage, he gave the said stock in trade, moneys, debts and assets, and also all his household furniture, to be equally divided among the children he then had, or might thereafter have. But in case his wife should not marry again, then the testator bequeathed to her all and every his personal estate and effects whatsoever for her life, and the same to be equally divided amongst such of his children as should be living at her decease, share and share alike: Held, that the first clause in the will was not intended to be a specific bequest, and the last a residuary bequest; but that both clauses were intended to deal with the whole property, and were applicable to different events: the first applying to the testator's widow marrying again, the latter to her dying without marrying again; and the latter event being the one which happened, the children living at her death became entitled, to the exclusion of the representatives of those who had died. A QUESTION was raised in this case upon the construction of the will of Clarke Wiggins, a working jeweller, dated the 17th of September, 1809, which was in the following terms:-" First, I will and direct that all my just debts, funeral expenses, and the expenses of 1 21 Law J. Rep. (N. s.) Chanc. 741. Wiggins v. Wiggins. proving this my will be fully paid and discharged by my executrix hereinafter named, as soon as conveniently may be after my decease. And I hereby give and bequeathe to my dear wife, Ann Wiggins, all and every my stock in trade, working jewelry, and implements of every description whatsoever, and also all my book debts, sum and sums of money due or owing to me from any person or persons whomsoever, all the ready cash that may be in my house at the time of my decease, money in the public stocks or funds, bills, bonds, notes, or other securities whatsoever, for and during the term of her natural life, if she shall so long continue my widow. But it is my mind and will that at her death, or in case she marry again after my decease, then that the said stock in trade, moneys, debts, and effects, and also all my household furniture, which I hereby give to her for her sole use and benefit, for and during the term of her natural life, if she shall so long continue my widow, shall belong to, and I do hereby give and devise the same to be equally divided, share and share alike, among the children that I now have, or may hereafter have by my said wife. But in case my wife, Ann Wiggins, shall not marry again after my decease, then I do hereby will and direct that she shall peaceably have and enjoy, and I do hereby give and bequeathe to her all and every my personal estate and effects whatsoever, for and during the term of her natural life, and the same to be equally divided to and amongst such of my children as shall be living at her decease, share and share alike. And I do hereby appoint my said dear wife sole executrix of this my will; hereby revoking all former wills by me at any time heretofore made." The testator died soon after the date of his will (which was proved on the 5th of October, 1809) leaving his widow and six children surviving him. A suit was then instituted by the children against their mother for an account, and upon a decree in the suit, the property of the testator was ordered to be brought into court. The widow having lately died, leaving three children only surviving her, the said three children presented a petition, praying that they might be declared entitled to the money equally between them. This was opposed by the representatives of the three deceased children who claimed to be entitled to share in the property. Malins and Eddis, in support of the petition, contended that there were two distinct clauses in this will. In the first, provision was made by the testator for his widow marrying again, and in that case. all his children were to share equally in the property; but, in the second clause, the testator provided that if his widow should die without marrying again, those children only who should be alive at her decease, were to take. It was clear that the testator intended to give the whole of his property in both clauses. The second event contemplated was that which happened, and consequently the petitioners, who were the only children alive at the death of the widow, would be entitled to the whole of the property, equally to be divided between them. The following cases were cited: Sharrett v. Bentley, 2 Myl. & K. Wiggins v. Wiggins. 149; Morrall v. Sutton, 1 Ph. 533; s. c. 14 Law J. Rep. (N. s.) Chanc. 266. Chandless and Fisher, contrà, submitted that the evident intention of the testator was to provide for all his children; but if the latter clause were to prevail, independently of the first, the issue of deceased children would be wholly unprovided for. The first clause was, in fact, a specific bequest, and the latter clause was a residuary bequest. If it were held that both clauses comprised the whole of the property, then they would be repugnant, and the general intention of the testator must be collected from the whole will. There could be no reason for supposing that, in the event of his widow marrying again, the testator meant to give the property to all his children, but if she should not marry again, then only to such children as were living at her death; such an intention would be repugnant to common sense. The following authorities were cited: Cook v. Oakley, 1 P. Wms. 302; Rawlings v. Jennings, 13 Ves. 39; Sims v. Doughty, 5 Ves. 243. Judgment reserved. May 5. KINDERSLEY, V. C. This will is very inartificially and inaccurately drawn, but one thing is clear, namely, that it was the testator's intention that his widow was to have the whole of his personal estate during her life, provided she so long continued his widow; and after her death, or after her second marriage, it is also clear that he meant the property to go to some class or classes of his children, either to all, or to some class; and with regard to the benefit which he intended for the wife, it was that her life interest should be determinable on her second marriage. Now, the last clause in the will is as distinct as it is possible for any thing to be. "In case my wife shall not marry again, then I hereby will and direct that she shall peaceably have and enjoy, and I do hereby give and bequeathe to her all and every my personal estate and effects whatsoever, for and during the term of her natural life." So far, nothing can be more plain and distinct, but that if she continues single and his widow after the testator's death, she is to have and enjoy the whole of his personal estate and effects whatsoever during the term of her natural life; then it goes on, "and the same to be equally divided to and amongst such of my children as shall be living at her decease, share and share alike." So far, of course, if there had been nothing more in the will it is clear that there never could be an argument raised on the question, and that is the very event which has happened. But then there is the clause in the prior part of the will, on which the question is raised, whether that prior part of the will does not vary the construction which ought to be put on the plain words of the last clause. By that prior part of the will the testator has purported to give to his wife (not in terms) all and every his personal estate whatsoever, by description, in this way, "all and every my Wiggins v. Wiggins. stock in trade, working jewelry and implements of every description whatsoever," that is a specific portion; "also all book debts," that is another specific portion; "sum and sums of money, ready cash in my house," &c., that is another specific portion of the personal estate; "money in the public stocks or funds, bills, bonds, notes, or other securities," and so on. In this manner he gives a variety of goods and chattels personal, not in terms, comprising the whole of his personalty; indeed, it is clear that he could not have intended to comprise the whole of his personal estate, because in the very next branch of the will he mentions another kind of personal property, which he knew that he had, and therefore merely meaning to describe some parts, "for and during the term of her natural life, if she shall so long continue my widow; but it is my mind and will that after her death, or in case she marry again after my decease, then that the said stock in trade, moneys, debts, and effects" (the whole of which he had before described,) "and also all my household furniture, which I hereby give to her for her sole use and benefit, for and during the term of her natural life, if she shall so long continue my widow, shall belong to," (that is another specific portion of personal estate;)" and I do hereby give and devise the same to be equally divided share and share alike among" (not the children living at her death, or at her second marriage, but among) "the children that I now have or may hereafter have." Now, I observe, that the testator's will is dated the 17th of September, 1809, the precise date of his death is not stated, but I find that the will was proved on the 5th of October, 1809, — that is, the will was proved eighteen days after the date of the will, and I must, therefore, presume that the testator must have died almost immedi ately after making his will,-a very few days after; and I think, at least, that it is a fair presumption, that what his personal estate consisted of at the time of his death was precisely the same as at the execution of the will, nothing being shown to the contrary; and it therefore appears, and I think I may fairly assume, that it was the same personalty which he had just before been describing. It appears to me that I may fairly suppose that in the prior portion of the gift, although he describes it only by specific items, he did, in fact, describe seriatim the whole of his personal estate. I at first thought it possible that the prior gift was only a specific bequest, and the latter a general residuary clause; but I think I may fairly assume that the residuary clause would, in that case, have been expressed in special terms; here he says, "all and every my personal estate and effects whatsoever," and that is all that is capable of constituting a residuary clause; but looking at the whole of the will, the question is, whether the prior clause is not inaccurately expressed, in making that prior clause depend upon the residuary clause. Looking at the whole will, therefore, it appears to me that it was a very fair interpretation, which was suggested by counsel, that the first clause meant to apply to the case of the widow marrying again; and the second, not marrying again; but that both clauses meant to deal with the whole personal estate; why he should direct that if she did marry |