had proceeded to realise his estate. She then left the province, and went to reside in Germany, having first appointed J. B. S. her attorney.

The solicitor of the plaintiff proceeded under the 57th section of Act No. 14 of 1853, by taking out a summons calling upon the executrix to administer the estate of the deceased. Mr. Belt then applied to the Court for, and obtained, an order that service of the summons and copy of the order upon her attorney might be deemed a good service.

NOVEMBER 2, 1866.

THE Attorney-General (Mr. Boucaut) now moved, upon notice of motion, to set aside that order. The question was whether the Court had power to order substituted service of an administrative summons. According to the 57 sec. of the Act No. 14, 1853, it was lawful for a Judge to grant administration on "proof by affidavit of the due service of the summons." There was a provision made for substituted service in bills, but not in regard to summonses; and Chief Justice Cooper had refused to allow it upon a Claim. Apart from the Act, there was a decision in the case of Lester v. Bond, 1 Drewry and Smales's Repts., page 392.

HANSON, C.J.—Then they would have to proceed upon bill?

The Attorney-General-They must either do that or serve the order personally.

HANSON, C.J.-I understand in this case the party is out of the jurisdiction, and therefore the summons could not be served personally. We will, however, look into the matter.

Cur. adv. vult.

DECEMBER 21, 1866.

Mr. Belt asked the Court for its decision in this case.

The Attorney-General opposed, on the authority of the case of Lester v. Bond, the Court had no power to order substituted service, the defen

dant being out of the jurisdiction. In the case of Cohen v. Alken, relied on by the other side, the decision only referred to lands, tenements, and hereditaments, under the provisions of cap. 82 4th and 5th William IV., and by the Equity Act, No. 14 of 1853, it was necessary service should be the same as in the case of a subpoena.

GWYNNE, J.-In the cases quoted the question was only raised as to service, not of the jurisdiction.

By the Court-Order to stand; one month to be allowed for appear

ance.

Order confirmed.

DECEMBER 14, 1866.

EQUITY.

ISABELLA HAWKINS AND ANOTHER V. CAROLINE HAWKINS AND OTHERS, INFANTS.

WILL-Construction of—Held, no resulting trust in favour of the heir-at-lawMining shares, and general personal estate-Held, not to pass under the words "all money at my banker's, and all money or moneys, or security or securities for money"—Property bequeathed "to be equally divided between them” (testator's daughters, Isabella, Caroline, Fanny Susannah, and Kate Hawkins)" or such of them as should survive and attain the age of 21 years." Held, to be a contingent bequest, and no sale or division authorised, until the youngest daughter attained 21.

THIS was a suit instituted for the purpose of obtaining a declaration by the Court upon the construction of the will of the late John Hawkins, of Cosford, near the Fourth Creek, South Australia. The bill prayed that the Court would declare the true construction of the devise and bequest of testator's freehold property to the plaintiffs, also of the personal estate devised to the plaintiffs, and whether such portions of it as are devised to Isabella Hawkins may be paid or secured to her, and that the personal estate devised to any of the defendants may be settled to such of them and in such manner as the Court should direct; also at what time and when the

said real and personal estate so devised should be divided. The testator, a widower, died on the 17th of July, 1866, leaving four daughters and one son, of whom the testator's daughter Isabella Hawkins alone had attained the age of 21 years. Shortly before his death testator made a will in the following form:-"I hereby appoint my eldest daughter, Isabella Hawkins, and my friend Alfred Spence, guardians to all my children during their minority; and I give, devise, and bequeath, in trust unto my eldest daughter, Isabella Hawkins, she being now of full age, and to my friend Alfred Spence, of Adelaide, all and singular my freehold and leasehold estates, messuages, lands, tenements, and hereditaments, whatsoever and wheresoever situate or found, with power to sell my said freehold estate or houses, or any part thereof, and power to give receipts for the money paid for such sale; the sale may be by public auction or by private contract, as my before-named trustees may agree or decide; also I give and bequeath to my aforesaid trustees all money at my banker's, and all money or moneys or security or securities for money, in trust for the benefit of herself my said daughter Isabella Hawkins, and or my daughter Caroline Hawkins, and of my daughter Fanny Susannah Hawkins, and my daughter Kate Hawkins, to be equally divided between all and each of such of them as shall survive and attain the age of 21 years. Nevertheless, it is my will and desire that my house, in which I with my family now reside, together with the 60 acres of freehold land in which it is situate, being part of section No. 280, on the Fourth Creek, in the District of East Torrens, be reserved for the use and residence of my unmarried daughters, together with all the household furniture, goods, and chattels, plate, glass, books, pictures, bust, household linen, clocks, watches, jewelry, and all other matters and things thereto belonging, together with all horses, cows, poultry, carriages, harness &c., for their use, free of rent or charge, so long as they shall require or desire them with full liberty to sell horses or cows, or exchange any of them, or buy others if they please with the proceeds. The proceeds of the estate when sold, and of all other matters and things sold, to be placed to the general account for divison. Either of my daughters marrying with the consent and approval of my said trustees before attaining the age of 21 years, my said trustees have hereby power to give unto my daughter or daughters so marrying the sum of five hundred pounds sterling money, to be charged without interest as part of her portion under this my will, and to be settled on herself for her own separate use in trustees, free from the control of

any husband that she may marry.

And in consideration of the trouble

occasioned to my friend and trustee, Alfred Spence, he is to be permitted and allowed to charge one pound sterling as commission on every hundred pounds sterling for investing moneys under this my will, the investments to be made with the approval of his co-trustee, my daughter Isabella Hawkins, but no commission or charge to be permitted or allowed or any other matter or business done under this my will, and he my friend and trustee Alfred Spence is not in any way to receive money or to invest money without the consent and approval of his co-trustee my daughter Isabella Hawkins, and the trust to my daughter Isabella Hawkins is to be free from the control of any husband that she may marry, and her portion to be settled on herself in trustees for her own separate use. Should it on the marriage of my daughter and trustee, Isabella Hawkins, be thought better or necessary to relieve her of this trust, then if another trustee not her husband can be appointed with her approval let one be appointed, in which case the newly-appointed will be entitled to have half the legacy hereafter named or given to my friend and trustee Alfred Spence in consideration of his becoming my trustee and carrying out and fulfilling the provisions and directions of this my will. And I give and bequeath unto my friend and trustee or executor (if he shall become my trustee or executor) the sum of one hundred pounds sterling, to be paid to him or between him or any other trustee or executor that may be appointed when my property is divided amongst my daughters as aforesaid and directed."

Bagot for plaintiffs-Under the will the whole of the estate, including realty and personalty, passed to the trustees for division among the daughters, as the power to sell the real estate coupled with a direction to divide the proceeds had the effect of converting it into personalty. (Jongsma v. Jongsma, 1 Cox, 362; Fletcher v. Smiton, 2 Term Repts., Duruford and East, 656; Hogan v. Jackson, Cowper's Repts., 299; Mower v. Orr, 7 Hare Repts., 473.) The next question was as to the time when the division should take place. Isabella Hawkins, who had attained 21 years of age, was entitled to have her share immediately handed over to her or set apart for her, because it was evident the testator had in his mind a separation of the property when he made provision for £500 to be handed over to any of the younger children who should marry before she attained the age of 21, while no such provision was made in

reference to the eldest daughter who was one of the trustees, the provision in the will being that if she married the portion should be settled upon her for her separate use. There did not appear to be any express provision that the property should be handed over to her before her marriage, but the effect of the meaning of the whole will was evidently such. There was no devise over, but she was to take the property absolutely. The legacy of £100 to Mr. Alfred Spence was an absolute bequest, and should be handed over to him on the understanding that if ever another trustee should be appointed he should repay to him his half of the legacy. The whole of the real and personal estate not bequeathed in express terms passed under the terms "all other matters and things,” and that the name of the heir-at-law was not mentioned, it was evidently the intention of the testator to will all the property to his daughters, and that the plaintiff Isabella Hawkins was entitled either to absolute possession of her share or that it should be invested separately for her use and management. As to the point of conversion of the real estate into personalty, I would refer to the cases of Grieveson v. Kersop, 2 Keen's Reps., 653; Robinson v. Robinson, 19 Beaven, 494; Burrel v. Baskerfield, 11 Beaven, 525; Rigden v. Pierce, 6 Maddock's Reps, 353.

Mr. Attorney-General, on behalf of the defendants, Caroline Hawkins, Fanny Susannah Hawkins, and Kate Hawkins, who were in the same interest, argued that according to numerous decisions, the whole of the estate, personal and freehold, must pass under the terms of the will for general division among the daughters (Doe v. Langlands, 14 East's Reps., 370; also Pratt v. Sladden, 14 Vesey, 193), and under the Statute Law an executor would be entitled to sell all property that was not otherwise specially devised; but in the present case the testator had by express words taken away the only contention which the other side could have, and showed that his intention was to devise everything away from the heir-at-law. The Court would always, if they possibly could, construe a will against intestacy, according to the authority of West v. West, 9 Jurist, N.S., 400; Booth v. Booth, 4, Vesey, jun., 399; and Leake v. Robinson, 2, Merivale's Report, 363; and where the intention of the testator was to be gathered, though not skilfully expressel, the Court would give effect to it, and the evident intention of the testator was that the latter portion of property mentioned, as well as the former, should be divided among his daughters. In answer to the Court, the interest of the whole of the