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![handle is hein.slavery/ssactsengr0815 and id is 1 raw text is: SHERWIN V. SHAKSPEARE
it is a joint:inheritance in fee. So far-then, they took as [266) joint-tenants in fee,
but the question is, whether the subsequent words cut down the joint inheritance thus
given. Mr. Rudall says that all the subsequent words are applicable only to the case
of the marriage of any of them, and if so, they would not cut down the previous joint
gift in fee, for the only object would then be, to protect the daughters who married
against their husbands, and to give them power of disposition, notwithstanding
coverture ; those powers, therefore, would only arise in case of their marriage, which
never took place. I think that the power of disposing of the property by will can only
be intended to apply to the survivor, and that the clause is to be read as saying, these
persons are authorized to dispose of by assignment, or the survivor, in case of death,
should there be only one, is authorized to dispose of the same by will, that is, of
the entirety of the landed estates, and not each her own share. The joint-tenancy is
not therefore cut down.
In the latter part of the will, the testator recommends his daughters to live
together, as long as they could; he seems, therefore, to have contemplated the
probability of their all living together, and so enjoying the property jointly and
equally. Though the will is obscure, I think the real estate was devised to the three
daughters as joint-tenants in fee.
As to the leasehold, the bequest is specific, and not included in or connected with
the preceding bequest of the personalty; and as there are no words indicating a
tenancy in common, the three daughters took the leaseholds as joint-tenants.
With regard to costs, the general rule is that they are payable out of the general
residue ; but if the whole property is specifically given and there is no residue, [267]
the specific legacies must bear the costs. This is the general rule in administration
suits; and though this is a special case, for the opinion of the Court as to the
construction of the testator's will, I must follow the same rule. The questions
in this case have been occasioned by the obscure and ambiguous language of
the testator, and it was quite proper to take the opinion of the Court as to the
rights of the parties. The costs must therefore be paid as I have already stated.
NoTE.-Affirmed by the Lord Chancellor upon appeal, on the first point, 16th
November 1853.
[267] SHERWIN v. SHAKSPEARE. June 28, 29, 1853.
[S. C. decree varied on appeal, 5 De G. M. & G. 517; 43 E. R. 970; 23 L. J. Ch.
898 ; 18 Jur. 843; 2 W. R. 668 ; 2 Eq. Rep. 957. See Williams v. Glenton, 1866,
L. R. I Ch. 206; Herbert v. Salisbury and Yeovil Railway Company, 1866, L. R. 2 Eq.
224; Metropolitan Railway Company v. Defries, 1877, 2 Q. B. D. 192.]
Principle of the decision in De Visme v. De Visme (1 Hall & Tw. 408; 1 Macn. & G.
336) explained.
A condition that if, from any cause whatever, the purchase shall not be completed
on a day named, the purchaser shall pay interest on the purchase-money, from that,
day till the completion of the purchase, is inoperative, where a good title has not
been shewn by the default of the vendor within the time stipulated; but it is
operative where it is the result of accident, or of something which could not have
been guarded against by the vendor.
A vendor in possession must account for the rents and profits as in the case of a
mortgagee in possession.
In a suit by vendor for specific performance, costs were given to him, although both
parties were in the wrong as to the only point in contest, namely, as to interest on
the purchase-money, a good title having been shewn prior to the institution of the.
suit, and it appearing that the conduct of the purchaser had prevented the comple-
tion down to that time.
Distinction between shewing a good title on the abstract and verifying it.
This was a bill for specific performance of a contract, entered into in 1843, for tha
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