leaves issue surviving him (which he does). Therefore, B.'s widow will take B.'s share.

Now to deal with A.'s share. As A. pre-deceased the testator and died a bachelor and intestate, sect. 33 will not help this case, and consequently his share will lapse, and in this case, will devolve as to so much of A.'s share as consists of real estate upon the testator's heir-at-law, who will in this case be probably B.'s eldest son, and as to so much of A.'s share as consists of personal property, upon the testator's widow (if any) and next of kin, who in this case will probably be all B.'s children. A.'s share cannot devolve upon B.'s widow along with B.'s share, because sect. 33 does not apply to property derived otherwise than by devise or bequest, and was only passed to prevent a lapse of such devise or bequest. (See 2 Prid., 11th ed. 389, 390.)

110. A testator gives the following legacy: "I give to my nephew, J. S., his executors, administrators, and assigns, the sum of £1000, in which he is indebted to me, and I direct that my executors shall give to the said J. S., his executors, administrators, or assigns, a full receipt and discharge for the said debt." J. S. dies in the testator's lifetime. Does the legacy lapse? Give the grounds of your answer. Can you refer to any leading case on the point?

Yes, because the words his executors, administrators, and assigns, are void, being but surplusage et expressio eorum quæ tacitè insunt nil operatur; and they are by supposition of law named only to take in succession and by way of representation as an heir represents the ancestor in case of an inheritance. The leading case is Elliot v. Davenport (Tud. L. C. Conv., 803; Haynes's Student's Leading Cases, 234.) If the legacy had been given to J. S. or his executors, administrators, or assigns, there would have been no lapse, the insertion of the or after his name having been decided in the case of such a legacy to show such to be the testator's intention.

111. A testator makes the following bequest: "I bequeath to my niece, A. S., the wife of J. S., the sum of £500, due to me from the said J. S., and secured by his promissory note." He subsequently appoints "J. S." his executor. What are the rights of the parties

in respect of such legacy? Would the result have been different if the legacy had been given to the legatec's separate use?

In the first case the benefit of the bequest to A. S. passes to J. S. by operation of law, it being personal property; and as J. S. is also the debtor, his debt will be extinguished thereby, both at law and in equity. The fact of his being appointed executor would alone, if the debt had not been mentioned in the will, have at law operated as an extinguishment of the debt, though in equity, if the estate were administered by the Court, the executor would have to account for it; and now, by sect. 25 of the Judicature Act, 1873, the rules in equity are to prevail. The debt being mentioned in the will in this case, is practically forgiven by being given to the wife. She would under the old law have had no equity to a settlement thereout, as there was nothing to receive, and the equity only attached to the receipt. (Osborn v. Morgan, 9 Hare, 434.) In the second case, the separate use being a creature of equity, the Court will, on an application being made by the wife (A. S.), order her husband (J. S.) to pay the legacy to her, treating her as a feme sole in such a case. (See H. A. Smith's Equity, 368, 369.) In the first case the wife gains nothing; in the second case she gains everything. This question was asked before 45 & 46 Vict. c. 75 came into operation.

112. A testator gives legacies in the following terms: "In the first place, I give to each of my daughters the sum of £1000; in the next place, I give the sum of £500 each to my friends A., B., and C.; and lastly, I give £50 to each of my servants, E., F., and G." Testator's estate is insufficient for payment of all the legacies in full. In what proportion will they abate? Give the grounds for your answer.

These are all general legacies, and in accordance with the general rule applicable to such legacies, on a deficiency of assets to pay all they will all abate rateably, unless the will shows a contrary intention. (See Bothamley v. Sherson, 44 L. J. Ch. 589; L. R. 20 Eq. 304.) The only question in this case, therefore, is whether the words "in the first place," "in the next place," and "lastly," show any such contrary intention. The case of Beeston v. Booth, 4 Madd. 161, decides this in the negative. The above legacies will therefore all abate rateably, and be paid pari passu. (Read the judgment in Re Hardy, Wells v. Barwick, 50 L. J. Ch. 246.)

113. A testator bequeaths a sum of money to trustees, upon trust, to pay the income to his daughter for life, and after her death to apply the income in the maintenance and education of her children during their minorities, and on their attaining twenty-one, upon trust to divide the money equally among such children. There were four children; two attained twenty-one and died in their mother's lifetime, one survived his mother but died under twenty-one, and one attained twenty-one and survived his mother. Who, in your opinion, is entitled to the fund at the death of the mother, and what grounds can you suggest for a contrary contention?

In our opinion the surviving child is entitled to the fund on the death of the mother, because on the authority of Re Ashmore's Trusts, 39 L. J. Ch. 202; L. R. 9 Eq. 99; Re Grimshaw's Trusts, 48 L. J. Ch. 399; L. R. 11 Ch. D. 406; and Re Parker, L. R. 16 Ch. D. 44, each child's share did not vest until each child attained twenty-one. Although it is true that if money is bequeathed to a particular legatee, with a direction for payment at twenty-one, and the income or some other interest in such money is given in the meantime, the money will be vested at once, and only the payment will be postponed, yet this rule does not apply where the gift is to a class of persons, and the income or any part of it is directed to be applied for the maintenance of the members of the class generally, and such direction is not confined to the share of each particular member. (Re Parker, supra.) The ground we can suggest for a contrary contention, besides what follows from what has been stated above, is that upon which the case of Fox v. Fox, L. R. 19 Eq. 286, rested, in which Re Ashmore's Trusts, supra, was not followed, and is inconsistent with all the cases on this point, which, it is believed, are all set out above. The ground of Fox v. Fox, supra, was that because in a case like that stated in the question there is no gift over of the residue of the income not applied for maintenance, it amounts to a bequest of the whole of the income, there is no distinction between a gift to a class or to any individual, and accordingly in the above case the money would devolve, as to one moiety only of the money, upon the child who attained twenty-one and survived the mother, and as to the other moiety, to the personal representatives of the child who survived the

mother but died under twenty-one. (See also 2 Prideaux, 11th ed., 380, 381.)

114. What rule does the Court apply where there is a residuary bequest of personal estate to be enjoyed by several persons in succession? After what leading case has the rule been named? Can its operation be excluded by the testator? If it can by implication, without express words, give an instance of such exclusion.

The rule is that where personal estate is given in terms amounting to a general residuary bequest to be enjoyed by persons in succession, the interpretation the Court puts upon the bequest is that the persons indicated are to enjoy the same thing in succession; and in order to effectuate that intention the Court, as a general rule, con verts into permanent investments so much of the personalty as is to a wasting or perishable nature at the death of the testator, and also reversionary interests. The rule did not originally ascribe to testators the intention to effect such conversions, except in so far as a testator may be supposed to intend that which the law will do; but the Court, finding the intention of the testator to be that the objects of his bounty shall take successive interests in one and the same thing, converts the property as the only means of giving effect to that intention. (Sir J. Wigram, V.-C., in Hinves v. Hinves, 3 Hare, 611.) If, however, an intention may be gathered from the will to the effect that it was the intention of the testator that the property should be enjoyed in specie, the above rule for conversion will not apply. (Pickering v. Pickering, 4 My. & Cr. 299.) The leading case referred to is Howe v. Earl of Dartmouth, 2 Wh. & Tud. L. C. Eq. 296; Haynes's Student's Lead. Cases, 233.) Such intention may be shown by the express words of the will or by implication, as, for instance, where a lease for ninety-nine years, seventy-nine of which are unexpired, is limited upon trust for the testator's child for life, subject to the covenants and conditions in the lease contained, and after his decease the unexpired residue of the said term (if any) is limited upon trust for the eldest grandchild absolutely. Other intentions may be shown in the same way. See 2 Prideaux, 9th ed. 401.)

115. What is the rule of the Court as to the income arising from leasehold or other personal property of a wasting description, speci.

H

fically or otherwise bequeathed to a tenant for life, with remainders over?

Apply the rule to the case of a leasehold house bequeathed to one for life, with remainder over, taken by a railway company, and the purchase money invested in stock.

For the answer to the first part of this question, see last answer, supra.

In the case cited above, in which the facts are the same as Askew v. Woodhead (App.), 49 L. J. Ch. 320; L. R. 14 Ch. D. 27, and in which the purchase was compulsory (assuming there is no contrary intention shown in the will, either expressly or by implication to the rule laid down in Howe v. Earl of Dartmouth), the tenant for life is entitled to have the purchase-money in Court, whether the inco.ne therefrom would be more or less than the net rental of the leaseholds, applied so as to produce an annuity for the number of years the lease would have run.

LIBEL.

116. Your client, the editor of a newspaper, has an action brought against him for libel. The libel cannot be justified, but it has been inserted in the paper simply through want of care on the part of the printer. What steps would you advise your client to take?

We should advise the editor, if his paper is a daily or weekly one, to insert a full apology in his newspaper at the earliest opportunity. If the newspaper is published at intervals exceeding one week, we should advise the editor to write and offer to publish a full apology in any newspaper or periodical to be selected by the plaintiff, and if the plaintiff does not select one before the expiration of the latest time to go to print with his own newspaper, we should advise the editor to publish an apology in the next issue of his own newspaper in as prominent a part as that in which the libel was contained.

We should also advise the editor to admit the publication of the