after the words "To Mrs. M. C. Marshall," were not written, and formed no part of the said codicil on the said 10th day of March, 1857; and that the figures "1000" were inserted after the execution of the said codicil. Previous to the filing of the replication Mr. Atherton intervened, but he did not put in any plea. 1858. April 28 and May 6. SHAWE AND V. MARSHALL The only question for the decision of the Court, as settled AND OTHERS. by the Judge at chambers, was, whether a certain legacy of £1000 to Mrs. Marshall was inserted before or after the execution of the codicil. Dr. Deane, Q.C., appeared for the executors. Dr. Phillimore, Q.C., and Dr. Spinks, for Mrs. Marshall, M. A. Bulger, and Lucy Makin. Dr. Twiss, Q.C., for Mr. Atherton. The Court decreed probate of the said codicil, including the said legacy of £1000 to Mrs. Marshall, and gave to the first three named defendants their costs out of the estate. costs. Dr. Twiss, Q.C., on behalf of Mr. Atherton, applied for his The plaintiffs at the commencement of these proceedings, by their declaration and affidavit of scripts, ignored the codicil. Mr. Atherton was then entitled to appear to protect his interests; and although by the replication the issue had been subsequently narrowed, this should not affect his right to costs, as he had intervened before it was delivered. Cur, adv. vult. SIR C. CRESSWELL: I have endeavoured to ascertain what was the practice of the Prerogative Court with regard to allowing to interveners costs out of the estate. I have come to the conclusion, that by the practice that prevailed in that Court, under the circumstances of the present case I cannot allow more than one set of costs to the defendants. Mr. Atherton, as an intervener, cannot have his costs out of the estate. 1858. May 18. In the Goods of In the Goods of RACHEL BAYNE, Spinster (deceased), on Chain of Executorship.-Will of feme covert.-Practice. A limited probate taken out of the will of a feme covert will not continue the chain of representation under the general probate of the will of the original testator, but the Court will make a supplemental grant limited to the property which the feme covert had as executrix. Rachel Bayne died in 1799, a spinster, leaving a will dated October, 1798, whereof she appointed Sir Robert Pocklington and Mr. Oliver Cromwell executors, and Martin R. Pocklington residuary legatee. In October, 1799, the will was proved by both executors in the Prerogative Court of Canterbury. Sir Robert Pocklington survived Mr. Oliver Cromwell, and died on the 21st of September, 1840, having made his will, and thereof appointed his wife, Catherine F. Pocklington, sole executrix. In December, 1840, she proved the will in the Prerogative Court of Canterbury, and subsequently intermarried with Sir Henry E. Austen, whom she survived, and died on the 27th of December, 1856, a widow, having during her coverture with Sir H. E. Austen, in virtue of a power reserved to her by her marriage settlement, made a will, and thereof appointed the said Martin R. Pocklington and her brother Edward Blagrave executors. On the 23rd of March, 1857, a limited probate of the said will was granted by the Prerogative Court of Canterbury to the said Martin R. Pocklington, Edward Blagrave having renounced his right to probate. The Bank of England, under advice of counsel, declined to transfer certain moneys into the name of Mr. Martin R. Pocklington as the personal representative of Rachel Bayne, on the ground that the chain of executorship was broken by reason of Lady Austen having made her will during coverture, and a limited probate thereof only having been granted to the said Mr. Pocklington. Dr. Phillimore, Q.C., submitted that the Bank of England had been rightly advised, and that it was necessary to have recourse to the Court to continue the representation to the original testatrix. BY THE COURT: As a feme covert Lady Austen might have made a will of that which she had as executrix? Dr. Phillimore: Yes; but the difficulty is in carrying on, with the limited probate of her will made under the power, the representation which commenced under the general probate of the will of the original testatrix. In Barr v. Carter, 2 Cox C. C. 429, the will had been executed in pursuance of a power given by settlement, but the probate was in the usual general form, and it was on that ground that the Master of the Rolls considered the executrix of that will as a general representative. In Birkett v. Vandercom, 3 Hagg. Ecc. Rep. 750, the representation was continued under a limited form. SIR C. CRESSWELL: The limited probate cannot give power to deal with the estate of the original testatrix. You may take a supplemental grant. That will be the most correct mode of proceeding. It will be a supplemental grant of probate, limited to the property which Lady Austen had as executrix. 1858. May 18. In the Goods of BAYNE. In the Goods of Sir CHARLES AUGUSTUS FITZROY, Knight (deceased), on Motion. Execution of Power of Appointment by Will.-Subsequent Marriage.-Revocation.-7 Wm. IV. & 1 Vict. c. 26, s. 18. A. under his marriage settlement had, in the event of his surviving B. (his wife), a power of appointing by deed or will amongst his children certain trust moneys, and in default of such appointment the moneys were to be equally divided amongst them. A. survived B., and by a will executed in 1847, he, being then a widower, (amongst other things) directed the then unappointed portion of such moneys to be equally divided amongst his sons (a portion of such moneys having been previously assigned to his only daughter on her marriage). A., in 1855, contracted a second marriage, and died in 1858 without having executed any other will, or any further appointment of the trust moneys. May 18. In the Goods of 1858. May 18. In the Goods of HELD, that the will of 1847, so far as it was an execution of the power of appointment, was not revoked by A.'s second marriage, though the same persons would take under the settlement in default of appointment, as would have taken in case of an intestacy under the Statute of Distributions. The deceased died on the 16th of February, 1858. By an indenture of settlement, bearing date the 9th of March, 1820, and made on his marriage with Lady Mary Lennox, the sum of £17,500 (subject to a deduction of the sum of £2300, as in the indenture mentioned) was assigned to the trustees of the settlement, upon trust to pay the interest thereof to Sir C. A. Fitzroy for life; and after his decease to Lady Mary Lennox for her life; and after the decease of the survivor of them to stand possessed of the trust-moneys and the interest thereof, in trust for such one or more exclusively of the other or others of the children of the marriage, as Sir C. A. Fitzroy and Lady Mary Lennox should, during their joint lives, by deed jointly direct or appoint; and in default of such appointment, or so far as the same should not extend, as Sir C. A. Fitzroy, in case of his surviving Lady Mary Lennox, should by deed or will appoint; and in default of such appointment, upon trust for the children of the marriage in equal shares. There were three sons of the marriage, one of whom died in September, 1855, a bachelor, and a daughter, now the wife of the Hon. Keith Stewart. Lady Mary Fitzroy died in September, 1847, leaving her husband her surviving. Sir Charles and Lady Mary Fitzroy, by indenture bearing date the 9th of August, 1841, assigned the sum of £2000, part of the fund comprised in the above indenture of settlement, for the benefit of their daughter Mary Caroline, wife of the Hon. Keith Stewart. But no further joint appointment was made of the said trust-fund. By his will, dated the 18th of December, 1847, Sir C. A. Fitzroy disposed of various articles of household furniture, personal ornaments, etc., but the last clause was as follows:-"The funded property confided to trustees "under my marriage-settlement in 1820 is, I believe, left at my disposal (as the survivor), so far as appropriating the "shares to each of my children; but of this fund the sum of "£2000 was settled at her marriage upon my daughter Mary. "The remainder I wish to be divided among my sons, as also 1858. May 18. "any other sums of money that I may die possessed of." No executor was named in the will. Sir C. A. Fitzroy, in December, 1855, married Margaret Gordon Hawkey, widow. On the deceased's death the above was the only testamentary Sir CHARLES paper to be found. Dr. Addams, Q.C.: The will is a good execution of the power of appointment of the trust-fund, and if so, would, as far as regards that part of it, fall under the exception in the 18th section of the Wills Act, and remain unrevoked by the marriage of 1855. By the indenture of August the 9th, 1841, Mrs. Keith Stewart has no interest in the fund in the hands of the trustees, except in the £2000 assigned on her own marriage. He moved the Court to decree letters of administration, with the will annexed, to Lady Fitzroy. SIR C. CRESSWELL: You say, in fact, that the trust-moneys, in default of such appointment, would not pass under the Statute of Distributions, but under the settlement. Suppose there was no will-that Sir Charles had put the will in the fire-the same persons would take in the one case under the settlement, in the other under the intestacy. The question is, whether the exception in the 18th section of the Wills Act applies, the children, in the event of an intestacy, taking under the settlement, and not under the Statute of Distributions, though they are the same parties that would take, and take in the same proportions as if the trust moneys had passed under the statute. I am inclined to think that the exception in this section does apply, and that the will, so far as it disposes of the trust-moneys, is not revoked; and I decree letters of administration, with the will annexed, to the widow. In the Goods of AUGUSTUS FITZROY. In the Goods of BIAGIO MANFREDI, deceased, (on Motion). The Court will not allow a will in its custody to be taken out of its May 18. In the Goods of |