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If, after decree in an interpleader suit, it becomes necessary to file a supplemental bill, the original plaintiff is not a necessary party to it.

THE original bill in this case was for an interpleader, one of the defendants being the official assignee of a bankrupt. A decree was obtained in the suit, and then the official assignee died. A supplemental bill was filed by one of the other defendants against the new official assignee alone. On the supplemental suit coming on for hearing, —

Rolt and Prior objected that the plaintiff in the original suit ought to be a party.

J. Parker and Dean contended that he had no interest, and need not be a party. Bignall v. Atkins, Mad. 369.

ROLFE, V. C. In interpleader suits, as soon as the plaintiff has got a decree there is an end of him, and the defendants are in the anomalous position of plaintiff and defendant. I think, therefore, that I may make a distinction between this case and the case of other suits, because, in truth, in an interpleader suit, one of the defendants is the plaintiff. I should be unwilling to rest this decision upon any other consideration than this; but I think, upon the reasons I have given, I may make a precedent.

Objection overruled.

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THIS was a claim filed by some of a class of residuary legatees against the executors for an account, it appearing from the will that there were others.

Greene, for the claim.

Bates, for the executors, submitted to the court whether it was not necessary that all the residuary legatees should be parties to the claim.

ROLFE, V. C., thought it was not necessary, as all could be summoned before the master.

1 15 Jur. 162.

2 15 Jur. 162.

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A testator gave his residuary real and personal estate to trustees, upon trust, after the death of C, as to one fourth, as C should appoint, and upon trust to divide the rest and residue between other persons. Soon after his death, a suit was instituted for the administration of his personal estate, which continued for twenty-five years after his death, when C died without making an appointment:

Held, that the one fourth went to the heir

The heir was made a party for the first time at the death of C:

Held, that he was barred by the lapse of time from disputing the validity of the devise to the trustees.

In the will were erasures and interlineations in the handwriting of the testator:

Held, in the absence of evidence, that they must be taken to have been made after the execution, and to be void, as related to the real estate.

BENJAMIN THOMAS made his will, dated 24th June, 1815, as follows: "And as to all worldly goods which it hath pleased God to bless me with, I give and dispose thereof as follows: After paying my just debts, funeral expenses, &c., I give and devise unto Katherine Simmons, of Castle Street, Leicester Square, all my freehold messuage or tenement and premises, with the appurtenances and land thereto belonging, at Weston Grove, in the parish of Thames Ditton, in the county of Surrey, now in the occupation of Adam Reid Gardener, during the term of her natural life, to and for her sole and separate use and benefit, and not to be subject or liable to the debts, control, or interference of any husband with whom she may intermarry, and her receipt and receipts only to be a discharge for the rents and profits of the said premises. And from and after her decease, I give and devise the same unto John Simmons of the same place, to hold to him and his heirs forever: provided always, and my will and meaning is, that in case the said John Simmons shall happen to depart this life intestate, or under the age of twenty-one years, without leaving any issue of his body lawfully begotten, before the demise of his said mother, then and in such case I give and devise the said freehold estate, premises, and land, together with all the rest, residue, and remainder of my real and personal estate and effects, of what nature or kind soever, unto John Cowell, of Water Lane, and Thomas Bradley, of Mark Lane, both in the city of London, merchants, and the survivors of them, and the heirs, executors, and administrators of such survivor, upon trust, that they or the survivor of them shall and do place the moneys that shall arise from my personal estate and effects out at interest on public or private securities, and from time to time pay, apply, and dispose of the yearly interest and produce thereof, together with the yearly rents, issues, and profits arising from and out of my real estates, when and as the same shall become due and payable, and be received by them,

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Simmons v. Rudall.

or either of them, into the proper hands of Sarah Armstrong, of Winchester Row, Paddington, in the county of Middlesex, widow, for and during the term of her natural life; and from and after her decease, upon trust to pay and apply the said yearly interest, dividends, increase and produce rents, issues, and profits into the proper hands of Isabella, daughter of the said Sarah Armstrong, for and during the term of her natural life, for her own sole and separate use and benefit, whose receipt and receipts alone shall be sufficient discharges to the person or persons paying the same, notwithstanding her coverture; to the intent that the same may not be at the disposal of, or subject or liable to the control, debts, or engagements of any her husband, but only at her own sole and separate disposal, as if she were sole and unmarried. And from and immediately after the decease of the survivor of them, Sarah Armstrong, and Isabella her daughter, upon trust that the said trustees, or the survivor of them, his heirs, executors, and administrators, do and shall pay, convey, assign, and transfer one equal fourth part of the said trust moneys, together with the interest and dividends, increase and produce thereof from thenceforth to accrue and grow due thereon, and also of the said residue and remainder of my real estate, unto and to the use and uses of such person or persons, and to such intent and purposes, as the survivor of them, the said Sarah Armstrong, and Isabella, her daughter, shall, in, and by her last will and testament give, devise, and bequeath the same; and upon further trust to divide, convey, assign, and transfer all the rest, residue, and remainder of the said trust moneys and real estate unto and to the

and Maria

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use and uses of Katherine Cutting, daughter, of Thomas Cutting and Maria Cutting his wife, of Rushmore, in the county of Suffolk; Mary Anne

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Rose Bradley, daughter of Thomas Bradley, of Mark Lane aforesaid, and John Simmons, before mentioned, their heirs, executors, adminis trators, and assigns, equally between and among them, share and share alike, at their respective ages of twenty-one years; but in case and Maria Cutting. Mary Anne any one or more of them, the said Katherine Cutting, Rose Bradley, and John Simmons, shall depart this life before her, or his, or their distributive share thereof shall become payable and transferable as aforesaid, then upon trust to pay, convey and transfer the share or shares of her, him, or them dying, equally among the survivor or survivors, share and share alike, together with their original shares of the said principal money and real estates; in the mean time, and until their said respective distributive shares thereof shall become due and transferable, to pay and apply the said interest and profits equally and among them from the time of the decease of the survivor of them, the said Sarah Armstrong, and Isabella, her daughter." The will was executed by the testator, and attested by three witnesses, and a pen had been run through the word "Rose" in both places. At the foot of it were the following words: “N. B. The above alterations respecting Maria Cutting and Mary Anne Bradley were made by me. B. Thomas." The whole of the will and alterations were in the tes tator's handwriting. He made a codicil to his will, and died in 1820.

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Simmons v. Rudall.

Sarah Armstrong died in 1823, and shortly afterwards Isabella Armstrong married John Cutting. In 1826, a suit was instituted for the administration of the testator's personal estate, in which various proceedings were from time to time taken. Isabella, the wife of John Cutting, died in 1846, without having executed the power of appointment given to her by the will over the one fourth, and thereupon a question arose, whether the testator did not die intestate as to that one fourth of his residuary estate, or whether that one fourth did not form part of the ultimate residue. A suit was accordingly instituted, supplemental to the former suit, and Thomas Williams, the heir at law and next of kin, who was not known at the time when this last suit was instituted, was afterwards brought before the court by a supplemental bill, in order to litigate the question as to the one fourth. At the hearing, the heir at law claimed all the residue of the real and personal estate as undisposed of in the event which happened, of John Simmons having attained the age of twenty-one, and outliving his mother. The third question argued was to the effect of the erasures and interlineations.

Bethell and Daniel, for the plaintiff, John Simmons, contended that there was, on the construction of the will, no intestacy as to the residue; Doe v. Brazier, 5 B. & Al. 64; and that, if there was, the heir was bound by the lapse of time. Davenport v. Coltman, 9 M. & W. 481; 11 Law J. Rep. (N. s.) Exch. 114.

Rolt and Freeling, for the heir. The heir is clearly entitled, on the words of the will, to the residue. 1 Jarm. Wills, 144. The operation of the statute of limitations is prevented by the fact of the suit having been instituted. The heir at law ought to have been a party to the original suit, but in fact knew nothing about it. He is now brought here, and claims the same rights as if he had always been a party. The heir, seeing the court in possession, does not think it necessary to interfere, but leaves his interest to the protection of the court. There is no pleading of the statute. Lancaster v. Evors, 10 Beav. 154; 16 Law J. Rep. (N. s.) Chanc. 8. As to the erasure and alterations, Knight v. Clements, 8 Ad. & El. 215; 2 Jur. 395, parties relying on them must be able to account for them. 1 Jarm. 119. Rydal v. Wager, 2 P. Wms. 328.

Malins, Rudall, Bird, R. W. Moore, Speed, G. W. Collins, and Torriano for other parties.

Daniel, in reply. The bill is supplemental as to the personalty, but original as to the realty. The heir is brought here to contest his right to the one fourth undisposed of by the death of Isabella Cutting, without appointment, and not to set up any claim adverse to the will.

LORD CRANWORTH, V. C. There is a great deal in this case which I must take time to consider; but there is one point as to which I have no doubt. I must treat the whole as having been devised to

Simmons v. Rudall.

trustees; and the suit was instituted about twenty-five years ago, alleging them to be trustees of the real estate under this will, and of course implying them to be in possession. The trustees, I presume, appeared, and admitted they were in possession; but that would not bind the heir at law, and he might have at any time brought his ejectment. The suit administered the trusts, and so it went on till the time when it became necessary to have the heir at law a party before the court, in order to ascertain whether, on the true construction of the will, certain trusts had not been trusts, in the events that have happened, for the benefit of the heir at law; and to litigate that, he must be heard. He, being before the court, says, what he might have said all along at law, "You have construed this erroneously; it was undisposed of by the testator, and I might have entered upon it at any time since 1820." That may be true, and if we were now at the end of nineteen years, and within the time when the heir at law might have been at liberty to assert this question, it would be my duty, and I must not have prevented him from asserting his legal right adversely to all these parties; but it has so happened that the heir at law was not here, and did not litigate it until the period when it has become impossible to litigate it. It is conclusive, and he is bound by the lapse of time. He suggested, indeed, that the filing a bill might preserve his rights; and certainly all those who claim under the will have their rights preserved; but it is quite a novelty to say that filing a bill can preserve the rights of parties claiming adversely to the will. This, therefore, relieves me from considering whether the case comes within the category of Doe v. Brazier, 5 B. & Al. 64, and Davenport v. Coltman, 11 Law J. Rep. (N. s.) Exch. 114; 9 M. & W. 481, in which, I think, that was the great distinction. That is not the only question in this case, and I have now only to deal with the case as one in which I am to decide who are entitled to the proceeds of the real and personal estate, according to the trusts of this will. Some very important questions arise as to erasures and interlineations, much of which arises from the conclusion to which I may arrive as to the time when the erasure was made. If I see my way in what is contended by Mr. Malins, that the alterations were made before the execution of the will, I shall have no doubt about the case. Suppose a man makes an alteration in the presence of the witnesses, and then executes the will. I have yet to learn that these alterations would be invalid merely because he did not make a marginal note to that effect. I have great difficulty in understanding the 21st clause of the wills act, 1 Vict. c. 26, which says, "that no obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent;" that is, if you can say what it was before it was altered, it has no effect, "unless such alteration shall be executed in like manner, as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof" — (What does "such alteration" mean? Does it mean, an alteration subsequent to the making of the will?)-"shall be deemed to be duly executed

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