1842. June 7. A creditor of a testator filed a bill against the executor for adminis tration, and obtained an THE OLDFIELD v. COBBETT. HE Defendant was the executor of the testator, his father. A creditor's bill being filed, the Defendant was restrained from receiving the assets, and a Receiver was appointed. Under the decree the accounts were injunction and directed to be taken, and the Plaintiff was found, by the Receiver. The Master, to be a creditor of the testator to the amount of Plaintiff was 1100l. A decree was made on further directions, but no order was made as to continuing the Receiver or the injunction. found a creditor; and the cause was heard on fur ther directions, but the injunction and Receiver were The Defendant, the executor, afterwards brought an not continued. action against the Plaintiff, for the recovery of 5,000l., The executor which he alleged to be due to the testator's estate. afterwards brought an The Plaintiff now moved to restrain the Defendant, by in action at law junction, from proceeding in the action. against the Plaintiff for monies due to the testator. The Court, by injunction, summarily restrained the proceeding. Mr. Parker, in support of the motion. Mr. Turner, contrà. The injunction and Receiver not having been continued by the decree on further directions, are gone. If the Plaintiff requires an injunction, it ought to be obtained by an independent bill, and not on motion after decree. Facts may have been discovered, which shew that the Plaintiff is indebted to the estate of the testator, instead of being a creditor. The MASTER of the ROLLS. I have no hesitation in granting this injunction. 1842. A QUARMAN v. WILLIAMS. PARTY who claimed an interest in a fund in Court, in the character of next of kin, created an incumbrance thereon, and he and the incumbrancer now presented a petition for a stop order. (a) Mr. Sheffield, in support of the petition. The MASTER of the ROLLS held that the petitioners must shew by some proceeding in the cause, or by affidavit, that he sustained the character of next of kin, otherwise the Court might place a stop order on a fund, on the application of persons having no interest whatever in it. June 7. Upon an application for a stop order, the assignor's right to the fund in Court must be shewn, either by the proceedings or by affidavit. It being admitted that this did not appear, the petition stood over to file an affidavit. (a) Ordines Can. 161. NOTE. As to the practice on obtaining stop orders, see Trezevant v. Fraser ; 3 Beav. 283.; Day v. Croft, 4 Beav. 34.; Wood v. Vincent, 4 Beav. 419.; and Parsons v. Groome, 4 Beav. 521. 1842. June 8. A testator, after giving his real estate to the eldest son of A. for life, with remainder to the other children of A. in tail, with remainder over, gave his personalty in THIS HARVEY v. HARVEY. HIS case is reported ante (a), where, to save repetition, the will was sufficiently set out, and to which the reader is referred. On that occasion the Master was directed to ascertain the next of kin of the testator living at his death, and the representatives of those who had since died. The Master reported that such next of kin were twenty in number, of whom twelve were now living, and that of the remaining eight, there were personal representatives to three only, and that the others were not regrandchildren presented. trust to pay the dividends to the children and of A. who should not, "from time to time," be entitled to the rents of the freeholds. By a codicil, he declared that the children of B., C., and D., living at the death of the tenant for life, should The persons, parties to the cause, who would be entitled to the residue, in case of the gift being too remote and void, were the widow, who would be entitled to one third, Catherine Pearson, a sister of the testator, entitled to one sixth of the remainder, or two eighteenths, and Thomas Harvey, the representative of the testator's (a) 4 Beav 215. brother "take their shares" of the personal property with the representatives of A. Held, that the gift was to the children and grandchildren living at the death of the tenant for life, and was not too remote. A testator gave 150l. a year to such of his relations as his widow should deem requiring and most meriting relief: Held, that a widow of the testator's brother was not an object, and the widow having given a portion to such widow, and the remainder to the relations, held also, that a relative to whom no part had been appropriated, and who did not shew himself to possess the qualification, had no right to question the misappropriation. A testator gave his widow "the full and entire enjoyment" of his real and personal estates, which, after her death, he gave to other persons; and he empowered her to retain a portion of a sum of 150l. a year given to other parties, for renewing the leaseholds. Held, she was entitled to enjoy the leasehold in specie, that it was not imperative on her to renew, but that she had acted wrong in surrendering a lease, of which she was the only cestui que vie, as she thereby deprived herself of the option of renewing for the benefit of the parties in remainder. brother Thomas, entitled also to two eighteenths; so that, on the whole, five ninths of the next of kin were represented in the suit. The cause again came before the Court. The Court having determined that it would hear the cause in the absence of the other next of kin, the questions were, first, whether the gift of the personalty in trust to pay the dividends "from time to time," to the children and grandchildren of James and Edward was or was not too remote. Secondly, whether the testator's widow had exceeded her discretion, in giving to the widow of the testator's brother Thomas a portion of the 150l. directed to be distributed amongst the testator's "relations;" and if not, then whether the Plaintiff had any interest in the sums misapplied, he not having proved himself as coming within the qualification. Thirdly, whether the widow had acted wrong in surrendering the lease of which she was the surviving cestui que vie. Mr. Pemberton and Mr. W. M. James, for the Plaintiff. The distribution of the personal estate is to be amongst a class to be ascertained at the death of the widow, and the gift is not therefore too remote. The bequest of the dividends, though payable "from time to time," carries the capital. (a) The codicil, which directs other persons living at the death of his wife, should take "their share of his property," removes all doubt. (a) See Elton v. Shephard, 1 B. C. C. 532.; Page v. Lea The pingwell, 18 Ves. 463., and Haig 1842. HARVEY บ. HARVEY. 1842. HARVEY v. HARVEY. The widow was not empowered to give any portion of the 150l. a year to the widows of the testator's relations; and she had no right to surrender the lease which the testator intended to be renewed. They asked the usual accounts and inquiries as to the leaseholds and the 150l. a year, with liberty to state special circumstances. Mr. Turner and Mr. John Baily, contrà. The division is to be from time to time between parties, who must be ascertained de anno in annum, and may not necessarily be born within the limited period: the gift is therefore void for remoteness. Lord Southampton v. Marquis of Hertford (a), Hayes v. Hayes (b), Lord Deerhurst v. The Duke of St. Albans (c) were cited. Mr. Kindersley, Mr. Rogers, and Mr. Chandless, for other parties. Mr. Pemberton, in reply. The MASTER of the ROLLS. The question in this case is whether the Plaintiff is entitled to the relief he asks. It must be owned that the words " from time to time" occasion considerable ambiguity, and it is very difficult to give effect to them, in any way consistent with the other expressions in this will. I think, however, that the words are intended to describe a class of persons existing at the death of the tenant for life, and not a class to take in succession. Such would plainly be the construction, unless we are to give the words "from time to time" an effect which |