that, as against the persons entitled to these two estates, the widow was entitled to her jointure out of both. But then there was a provision that, as Greenfield was settled upon Jeremiah for life, the deficiency in the jointure should be borne by Rathleigh during the life of Jeremiah Sullivan. That was of necessity; for George, the settlor, had no interest in that estate until after the death of Jeremiah; and therefore could not properly charge anything but his remainder. Then it was provided, that, if Jeremiah should die in the lifetime of the wife, it should issue out of Greenfield, and no part of it out of Rathleigh; or, in other words, that when Greenfield became an available fund to pay the jointure, Rathleigh, of which the settlor was seised in quasi fee, and which he intended to settle upon his sons, should be wholly discharged from the jointure. After these provisions there follows a very important provision, which gives to George Sullivan the right to secure the jointure upon any other property of his; and he is thereupon to take Greenfield in fee, and Rathleigh is to be wholly discharged from the jointure; which marks strongly the intention. Then Greenfield is settled, "subject to such payment of the jointure as under and according to the true intent and meaning hereof ought to be made thereout," upon George Sullivan absolutely; and Rathleigh is settled, "subject to such payment of the jointure as under and according to the terms of these presents ought to be made thereout," upon the first and other sons of the marriage in quasi tail. Great reliance has been placed upon those words; but I think they were only used with reference to the incumbrances; first, that the estates were to come in aid of the wife's estate for the payment of her jointure; and secondly, that, as between the estates themselves, there was to be a certain arrangement, according as events might hap 1845. SULLIVAN v. SULLIVAN. Judgment. 1845. SULLIVAN v. SULLIVAN. Judgment. pen. Those words amount to nothing more than a declaration that the estates were to be liable in the manner in which they had been made liable by the deed. It has already been decided that the widow is entitled to go against both the estates for her jointure; but the present contention is, whether Rathleigh is entitled to be indemnified by Greenfield. I am clearly of opinion that it has that right. Every part of this settlement contains an indication that, as between the two estates, Rathleigh is to bear no part of the burden, and that Greenfield is to indemnify it. I must therefore declare that, as between those two estates, Greenfield is the primary fund, and bound to indemnify Rathleigh from the annuity; and that Rathleigh is to be held discharged of the jointure. Another question was raised, as to the rights of the younger children to their portions. After the two estates had been settled in the manner I have mentioned, George Sullivan covenanted that he would pay 30001.to the trustees, as portions for his younger children; and, by way of securing them, he charged and made liable all the real and personal estate of which he should die seised and possessed with payment thereof, and declared that these portions should be the first lien or charge upon his property, and in preference to any other incumbrance. It is argued that that gives the 3000l. priority, as to Greenfield, over the charge of the annuity, which I have held is a charge upon Greenfield exclusively, as between that estate and Rathleigh. But consider what it was which George Sullivan had to dispose of. He had the quasi fee in Greenfield, which was the proper fund for securing the widow her rent-charge, but which he might have got back, discharged of the jointure, if he subjected any other property to that charge. It is well settled, that, notwithstanding a covenant to settle or charge all the property of which the settlor shall die seised, the settlor has during his lifetime uncontrolled power over the whole of his property real and personal; and, if he do not act fraudulently, he may alter its nature from real to personal, and may sell it and die without assets, provided he bona fide disposes of the property as against himself. This covenant would therefore only bind the property of which George Sullivan died seised; and Greenfield, in that respect, stood in the same relation to the covenant as any other property. Supposing he had sold Greenfield and bought Blackacre, of which he had died seised, it would have been liable, and Greenfield discharged. It is therefore clear that, notwithstanding the words of this settlement, as Greenfield was not charged with the 30007. unless George Sullivan died seised of it, any incumbrance charged upon it by act inter vivos would take precedence over it. The property having been charged by the settlement with the annuity, George Sullivan had at the time of his death, nothing in the lands which could be charged with the 30007., except the feesimple, subject to the annuity. It is to be observed that the son, who was entitled to Rathleigh, might himself become entitled to the 30007. charge, which affords some evidence of the intention. There is also a general power of leasing Greenfield given to George Sullivan, without any other restriction than the consent of Jeremiah Sullivan during his life; but nevertheless it is made subject to the annuity for his wife, supposing the estate not to have been reconveyed to him. That shows that, if Greenfield was not reconveyed to George Sullivan, his power of disposition over it, large as it was, was still to be subject to the annuity. The case, 1845. SULLIVAN v. SULLIVAN. Judgment. 1845. SULLIVAN v. SULLIVAN. Judgment. although somewhat complicated, is, I think, free from doubt. I shall declare that, as between the two estates, Greenfield is the primary and South Rathleigh the secondary fund for payment of the annuity; and that the annuity is the prior, and the 3000l. the puisne charge on Greenfield. |