Mr. B. L. Chapman (Mr. Malins with him), for the * 619 * appellants, having opened the case, and submitted that the onus was upon the defendants Mr. and Mrs. Giles to show that since the testatrix's death the property had been reconverted into realty, was stopped in his argument by the Lord Chancellor.

Mr. Greene and Mr. T. A. Roberts, for the respondents Mr. and Mrs. Giles, relied upon the events of 1851, and those which had subsequently happened, as sufficient to work the reconversion of the property from personal estate into realty, a reconversion, in favour of which Mr. and Mrs. Giles had ample power, in concurrence with Robert Hall Naylor, to elect, notwithstanding that the interests of Mr. and Mrs. Giles and Robert Hall Naylor under the will were at the date of the deed-poll of 1851 at once executory and defeasible. They contended, also, that it would savour of fraud to allow the transaction of 1851 to be ripped up, even if it were not, as it was, too late now to do so.

They referred, in support of their argument, to Oldham v. Hughes, (a) Mr. Swanston's note to Gretton v. Haward, (b) Rushout v. Rushout, (c) Ardesoife v. Bennet, (d) Lady Cavan v. Pulteney, (e) Barrow v. Barrow, (g) and Savage v. Foster. (h)

Mr. Nottidge, for the husbands of the married women plaintiffs.

620 * Mr. Eddis, for the surviving trustee of the testatrix's will; and

Mr. W. D. Gardiner, for the trustees of Robert Hall Naylor's will, took no part in the argument.

Mr. B. L. Chapman, in reply. It is admitted on the other side that the interests of the parties to the deed-poll of 1861 were at its

(a) 2 Atk. 452, 455, the passage beginning with the words, "It has been insisted that Mrs. Bourne could no more agree to turn money into land, than, &c."

(b) 1 Swanst. 409, 413.

(c) 6 Bro. P. C. 89.

(d) 2 Dick. 463.

(e) 2 Ves. Jr. 545, 560.

(g) 4 K. & J. 409.

(h) 9 Mod. 35.

date at once executory and defeasible. The admission shows that there was no reconversion into realty; for there cannot be such a thing as a possible or contingent conversion, and the defeasible and executory reversionary interests in the property here in question were incapable of being dealt with in the manner suggested by the other side.

Judgment reserved.

July 30.

The Lord Chancellor, after stating the nature of the appeal, said that the question was whether the property preserved its original character of personal estate which it had under the testatrix's will, or had been reconverted into realty. His Lordship went through the facts of the case, calling attention to the executory bequests over contained in the testatrix's will, in the event of either Robert Hall Naylor or Mary Giles dying without leaving any issue, to the survivor of them (where his Lordship remarked, that "survivor" must be read "other"); and to the executory bequest over to the testatrix's next of kin in the event of both of them dying without leaving any issue, a bequest which was extinguished upon and by the death of Robert Hall Naylor leaving issue. The Vice-Chancellor, his Lordship said, had considered the execution of the deed-poll of 1851 sufficient to effect the reconversion for * 621 which Mr. and Mrs. Giles contended. But to effect a reconversion, the parties directing it must be absolutely interested in the property in question. If they had only a limited or defeasible interest there could be no conversion. The latter was the nature of their interest in the present case, for when the deed-poll of 1851 was executed the interests of both Robert Hall Naylor and John and Mary Giles were at once executory and defeasible, and not such as could be dealt with either apart from or by virtue of the marital right of Mr. Giles. His Lordship, therefore, was unable to concur in the view that the parties to the deed-poll of 1851 were at its date sufficiently domini of the property to reconvert it or give a complete release to the trustees, which indeed the deed-poll did not profess to do. His Lordship thought that the original nature of the property as personal estate remained, and that it was still liable to be sold under the trusts of the will. The decree of the Court below was erroneous, and must be reversed; and a decree must be made in conformity with the prayer of the bill.

622

* NICKISSON v. COCKILL.

1863. July 15, 30. Before the Lord Chancellor Lord WESTBURY.

A testator gave in the commencement of his will various pecuniary legacies, including one of nineteen guineas to a charity, which he directed to be paid out of his personal estate. He then made a general devise and bequest of all his real and personal estate to trustees, who were also his executors, and the trustees of the real estate were to collect and manage the same and receive the rents and profits thereof, with power to grant leases of the same on such terms as they should think advantageous and proper, and with power also, if they should "consider it advisable, but not otherwise," to sell his real estate or any part thereof by public or private sale in such manner, at such time or times, and for such prices as they should think proper. He then proceeded to direct that his personal estate should be collected, and that the proceeds of that estate, together with the proceeds resulting from any sale of the real estate, should be invested in the funds. He then gave the income of the whole of his estate, the real estate, if unsold, and of the funds which should be so invested, to his wife for life, and at the death of the wife he directed several other legacies to be paid, including a legacy of 1007. to a charity, which he again directed should be paid out of his personal estate; and subject to those legacies and at the death of his wife, and subject to a provision for any child of which she might be enceinte at his death (which failed in fact by reason of there being no such child), he directed the whole income of all his real and personal estate to be paid to his wife's niece for life; and at her death he directed a legacy of 500l. to be paid to a charity, which he again directed should be paid out of his personal estate: Held,—.

1. That the 500l. charitable legacy was not to be postponed to the other legacies, it being clear on principle and settled by authority, that although a legacy is deferred as to its time of payment, it must rank equally with other legacies in the distribution of assets which are directed to be immediately paid, and that the trustees were bound to provide for the payment of the 500l. legacy at the time when they applied themselves to the payment of the other legacies.

2. That the two first given charitable legacies had no precedence over the 5007. legacy.

3. That the proceeds of sales of parts of the testator's real estate by the trustees, under their power, having proved insufficient for the payment of the legacies other than the charitable legacies, so as to leave the pure personal estate for the payment of the charitable legacies, the case had arisen in which the trustees ought to have "considered it advisable " to sell the real estate, under their power to do so, however discretionary in its form, for the purpose of paying the general legacies, the testator having devoted the proceeds of any sale, when made, to the payment of legacies.

Directions given for marshalling assets in favour of a charity, the testator him

self having so expressed his intention.

An appeal by a person not a party to the record, but who appears without filing a supplemental bill in order to save expense, allowed to be set down for hearing.

THIS was an appeal by the British and Foreign Unitarian Association, who were legatees under the will of Arthur Harry Johnson, from a decision of his Honor the Vice-Chancellor KINDERSLEY on further consideration in a suit for admin- *623 istering the testator's estate, that the trustees of the will had an absolute discretion as to selling, or refraining from selling, his real estate; that the produce of such parts of it as had been sold ought to be applied in payment of the testator's legacies generally, whilst upon the unsold parts there was no charge of legacies at all; that the testator had himself marshalled the assets in favour of his charitable legacies, and that the legacies given by the will at the death of the testator's widow were entitled to priority over one given to the appellants at the death of a succeeding tenant for life.

A preliminary difficulty arose about setting down the appeal, the registrar thinking that, as the appellants were not parties to the record, the authority of Berry v. The Attorney-General (a) applied. Accordingly,

May 6.

On this day, Mr. Anderson moved that the appeal might be set down, and urged that the appearance of the appellants would have been strictly proper on a supplemental bill filed by them, and that their appearance, without going through that formality, was merely for the purpose of saving expense to the estate. That being so, he submitted they should have the same right of appealing as if they had taken the more expensive, if the more regular,

course.

The Lord Chancellor was of the same opinion, and ordered the appeal to be set down. (b)

July 15.

*The appeal now came on to be heard, and the facts of the case were as follows:

* 624

(a) 2 Mac. & G. 16.

(b) See Ellison v. Thomas, 1 De G., J. & S. 18.

Arthur Harry Johnson, the testator in the cause, by his will dated the 17th of September, 1849, after giving several specific and pecuniary legacies, and amongst them a legacy of nineteen guineas to the treasurer of the appellant association, to be paid out of his personal estate only, and to be applied for the advancement of the objects of the association, and devising to Solomon Maw and the defendant Winter Cockill all estates vested in him as trustee or mortgagee subject to the equities affecting the same, continued as follows:

"I give, devise, and bequeath unto the said Solomon Maw and Winter Cockill all my real estate (except what may be vested in me as trustee or mortgagee), and also all my stocks, funds, mortgages, policies of insurance, and all other my personal estate not hereinbefore disposed of; to hold the same unto and to the use of the said Solomon Maw and Winter Cockill, their heirs, executors, administrators, and assigns, according to the respective nature of the same property, upon the trusts following (that is to say): as to my real estate, to let and manage the same, and receive the rents and profits thereof, with power to grant leases of the same on such terms as my trustees shall think advantageous and proper, and with power also (if they shall consider it advisable, but not otherwise) to sell my said real estate or any part thereof by public or private sale, in such manner, at such time or times, and for such prices as they shall think proper, they investing the net produce of such sale or sales (after defraying the expenses of effecting the same) in manner hereinafter mentioned: and as to my residuary personal estate, upon trust to realize (at their discretion both as it regards time and mode) such part thereof *625 as shall not consist of money or securities, with power to

*

compound or allow time for payment of debts owing to me, and to adjust and settle by arbitration or otherwise all questions relating to debts owing or claimed to be owing by or to me; and upon further trust, out of the produce of my residuary personal estate, to pay my debts, funeral and testamentary expenses, the legacies hereinbefore bequeathed, and all expenses attending the performance of the trusts of my will, and to invest in the public funds, or at interest on government or real securities, the residue and surplus of the produce of my said personal estate, and also the net produce of my said real estate if and when sold, with full