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![handle is hein.slavery/ssactsengr0888 and id is 1 raw text is: BATEMAN V. MARGERISON
[4943 Mr. Swanston and Mr. Willcock, for the Plaintiffs, and Mr. Malins, for
Defendants in the same interest, commented on the special circumstances of the cases
referred to, and cited also Doe d. Moreton v. Fossici (1 B. & Ad. 186), A4torney-General
v. Pigor (8 Ves. 256), and Anon. 2 Ventr. 363, cited Fearne, Conting. Rem. 244.
THE VIcz-CHANCELLOn [Sir James Wigram]. It appears to me that the circum-
stances relied upon by Lord Mansfield in Strong v. TeaU were so many, and his reasons
so special, that it cannot be considered as furnishing any abstract rule opposed to the
general rule of construction which I have referred to. Still less is it an authority
binding upon me in the present case, in which one simple fact alone is offered as
sufficient to overpower the plain and settled meaning of the testator's words. In
Gmdi tle v. Miles expressions were found in the will which are wanting here. The
devise in that case was of lands, not settled in jointure upon my wife. Expressions
like those have been sometimes considered by Judges of high authority as equivocal
and flexible, and as being capable in themselves of meaning land not comprised in
any settlement, or so much of lands in settlement as is not subject to the trusts of
such settlement. In Strode v. Rusell (2 Vern. 621), the words were lands out of
settlement; Lord Cowper, considering the meaning of the words as standing in
eguilibrio, thought that evidence might for that reason, according to Lord Ce y's
case (5 Rep. 68 a.), be admitted to determine in which of the two senses the words
were used. No equivocation in or flexibility of meaning exists in this case. Here,
according to my construction of the [495] will, the gift is of all the testator died
possessed of. In The Incor orated Society v. Richards (1 D. & War. 286) Sir Edward
Sugden expresses his disapprobation of Gooditk v. Mies, and says it has been over-
ruled. The case of Wehy v. Wel is open to the observations I made upon Strong v.
Teatt; and Mr. Jarman's observations upon that case (vol. i. p. 610) are at this day
entitled to great weight, namely, that when Sir William Grant decided the case of
Welby v. Welby and made the observations which are there found upon Church v.
Mundy, he had not before him the numerous class) of cases which have since, in every
instance, decided that a reversion will pas under general words. I think I shall not,
expose myself to the charge of presumption, by saying that Sir William Grant was.
more disposed than other Judges, especially in more recent decisions, to relax the rule.
I proceed upon and to disregard the strict meaning of words where he thought it
improbable that the testator could have intended what the words, strictly interpreted,.
would express. Of this, Church v. Mundy, overruled by Lord Eldon, Miller v. Eaton
(Sir G. Coop. 272) and Jones v. Colebeck (8 Ves. 38), opposed to Holloway v. Holloway,
(5 Ves. 399) and to the modern decisions, are examples. In the cases of Say v. 0reed
5 Hare, 580) and Bradley v. Barlow (Id. 589), I had occasion to examine the authori-
ties of which the last-mentioned cases are part. I refer to my own decisions not as
authorities but to avoid repetition. I am convinced (and the subject has occupied my
mind frequently) that the sound and settled rule of construction at the present day is,
that which I stated at the close of the argument for the exceptions, that the words of
the will should be taken to comprehend every [496] subject which falls within their
proper meaning, unless that meaning is excluded by the context, or by the circum-
stances of the case; and that mere conjecture will not do.
[496] BATEMAN v. MAROAIUSON. April 13, 19, May 6, 9, 26, 31, June 1, 1848.
Where property was conveyed to four trustees for such of the creditors of a firm as
should execute the deed, and twenty-six creditors (including the four trustees>
executed the deed, a suit instituted seventeen years afterwards, by some of the
creditors, on behalf of themselves and the others, was sustained against the
trustees, they objecting that it was defective for want of the other creditors as
parties.
In a suit by some of many creditors, on behalf of themselves and the others, for an
account of property which had been vested in the Defendants, the trustees, for the
benefit of such creditors, and one of the trustees died after answer, the other
trustees are not necessary parties to the bill of revivor, or revivor and supplement,
against the representatives of the deceased trustee.
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