1. A devise to "The Incorporated Society in Dublin for the promotion of English Protestant Schools in Ireland," does not constitute an absolute gift to the members of that Society unfettered by any trust, because the nature of the trust is expressed in the very description of the Society contained in the gift; and giving it to them in that character, the testator gives it charged with an obligation to devote it to those purposes, and they must take it, if at all, subject to that obligation. As I put it in the course of the argument, it is just as if the testator

said "I give to the Governors of the Deaf and Dumb Schools," or to the Governors of any other Charitable Institution when, although he does not say in express terms that the gift is in trust for the charity; yet it must clearly be taken to be so. Per Sir E. Sugden, C., in The Incorporated Society, &c., v. Richards 199

2. A testator bequeathed chattels real to trustees, upon trust to permit his grandson to receive the rents for life, and after his death to permit the person who for the time being would take by descent as heir male of his grandson, to receive the rents until some such person should attain twenty-one, and then to convey the same to such person so attaining twenty-one; but if there should be no such person, then to permit the persons successively who would take as heirs male of the testator's son, to receive the rents until some such person should attain twenty-one, and then to convey to the first such person so attaining twentyone. At the death of the testator, his grandson was one of his next of kin, and he made a lease, not warranted by the leasing power in the will, of part of the lands, to one of the trustees under the will, who was also the agent of the property both to the testator and his grandson, and took an annuity under the will given to him for his services in that capacity. That lease was expressed to be made partly in consideration of the services rendered by the lessee, and in five years after its date it was assigned by the son of the lessee to a third person for a large sum of money. The eldest son of the testator's grandson had attained twenty-one in his father's lifetime, and upon his father's death he set up a representative to the surviving trustee under the will, got a conveyance from him, and brought an ejectment against the assignee of the lease, who filed a bill to restrain him; Held, that although the limitations after the life estate given to the testator's grandson were void as being too remote, yet that the trustee under that will could not take from the tenant for life a lease which was contrary to the terms of that will, and could not be per

mitted to question the validity of the limitations in it. C. Ker v. Lord Dungannon 343 3. In considering, however, whether this is an estate tail or an estate for life, I must first ask whether it is an executory trust or not. If it is executory, then it is perfectly clear that a strict settlement was intended, because there is no difference between executory trusts raised by a settlement before marriage, and executory trusts raised by a voluntaay settlement or a will. In voluntary settlements and wills there is greater difficulty in establishing that the trust is executory -but when once that is established, the construction is the same in the two latter as in a settlement before marriage. In the one case, the nature of the instrument amounts to a declaration that the trusts are executory; in the two other cases you must infer an intention from the contents of the instrument that it should be executory. Per Sir E. Sugden, C., in Rochford v. Fitzmaurice 382 4. I accede to all that Sir W. Grant lays down (in Blackburne v. Staples, 2 Ves. & B. 369), without saying whether he was right in that particular case or not. "The Court must necessarily follow his "words, unless he has himself shewn "that he did not mean to use them in "their proper sense." I entirely concur in that; I admit that in wills or voluntary settlements I must find something in the instrument itself which shews an inteution to create an executory trust. Per Sir E. Sugden, C., in ibid 387

5. Now, in all cases of direct trust, the rule, I apprehend, is settled, that length of time does not bar. Per Brady, C. B., in Scott v. Knox 410

6. Nor is this case within the exception stated by Counsel for the plaintiff to the rule, that time does not bar as between trustee and cestui que trust, viz., that it does not apply to cases of constructive trusts. The true meaning of that exception is, that where, as in cases of fraud, the interposition and decree of a Court of Equity are necessary to declare the trust; there, lapse of time, without preferring a suit for the

1. That recognizances conditioned for the due accounting of a receiver are within the 8 G. 1. When recognizances of this description are searched for and found, it is not sufficient to satisfy the purchaser that twenty years have elapsed, and no payment has been made or proceeding taken during that period; whereas, if that were a sufficient answer, there is no doubt that it would be relied on as an answer to the purchaser's objection, because it would be much easier for the vendor to rely on that, in many cases, than to procure the recognizance to be vacated and yet the latter is the course invariably pursued. Per Sir E. Sugden, C., in Regina v. Bayley 146 2. Although a purchaser who buys sub

ject to an encumbrance, for payment of which the vendor has bound himself by covenant, is bound to indemnify the vendor against it; yet, in a suit for the

I. Construction of— Generally.

T. M. being seized of fee simple lands had, by articles previous to his marriage agreed to convey them to trustees upo trust for himself for life, and at his death to secure a jointure for his widow, and subject thereto upon trust for the firs and other sons of the marriage in tail remainder to his issue male by any other marriage; remainder to his daughters a tenants in common in tail male; and in case he should die without issue, or without making a will, it was provided that the lands should go to his mother in fee. He subsequently purchased other fee-simple lands, and by his will devised "the residue of his unsettled estate, after payment of his debts and legacies which he charged upon his real estate in exoneration of his personal, to his wife for life; remainder to "the Incorpora ted Society for promoting English Protestant Schools in Ireland." The Society had been incorporated by Royal Charter by that title before the date of the will and had a license to take in mortmain: Held, First, that the reversion of the lands included in the articles passed by the devise; and, Secondly, that though the devise to the Society, being to a Corporation, was void at law, yet, that as it was for a charitable purpose, there was an original jurisdiction inherent in the Court to sustain it. C. The Incorpo rated Society in Dublin v. Richards 177 2. The 10 Car. 1, sess. 3, c. 1, is analogous in Ireland to the 43 Eliz. c. 3, in England. Ibid

3. Semble-Charity estates are not within the recent Statute of Limitations, 3 & 4 W. 4, c. 27. Ibid

4. I do not profess to found my opinion upon the respective value of the two estates, nor do I wish, sitting here, to decide the construction of a will, upon the ground of the comparative value of the property in question; but I am entitled to know all that the testator knew when he made his will, to be placed as far as possible in the same situation as he then was, in order to enable me to judge of the meaning of the words he

192

Testator, by his will, declared "That his property, together with what his wife was entitled to, should produce to her an annuity of £100, to each of his daughters £100 per annum for themselves and their children," and gave all the residue of his property to his son. By a subsequent codicil executed after the death of one of his daughters, he directed that in case his son should die without leaving -issue male, then, after the decease of his wife and of his surviving daughter, his remaining property should then be equally divided between his sister and her daughters by her then husband, and hist sister-in-law and any children of hers, by his late brother. Neither of the daughters had children at the date of the will or the death of the testator. Held, upon the will and codicil, that the daughter did not take a perpetual interest in the annuity. Semble-That if it had rested upon the will alone, she would have taken a perpetual interest in it. C. Heron v. Stokes

284

1. A testator directed his debts and legacies to be paid by his brother, to whom he devised a certain real estate in tail male, after the decease of his wife and another, to whom he had given life estates therein. He then gave to the same brother the timber growing on the devised lands, to pay his debts and legacies, and bequeathed two legacies, which he directed should not be paid for five years, as it was his wish that the timber should not be cut for that period. He then directed the produce of the timber, after payment of the two legacies, to be paid to his wife. Held, that the general personal estate was the primary

the produce of the timber only liable in case that proved deficient, but that the produce of the timber was the primary fund for the payment of the two legacies. C. Lanphier v. Despard

334

10. A testator devised to his second son a perpetual annuity, charged upon certain freehold lands which he devised subject to that annuity, to his eldest son, in fee, charged with a sum of money for his other children, and concluded his will by directing that his debts should be paid. There was no appointment of an executor, or disposition of the personal estate contained in the will; Held, that the real estate of the testator was charged with his simple contract debts under the will. C. Harding v. Grady 371 11. It is difficult to persuade me that this (Bastard v. Proby, 2 Cox, 6), is not a considerable authority: it amounts to this, that wherever a man directs a settlement to be made as Counsel shall direct, that that is to be done, not according as the words used by the testator import, but in such a manner as to effect what is considered to be his intention; and, by giving a life estate to the first taker, remainder to his issue, in strict settlement, to prevent the possibility of doubt that the lands shall devolve in the same manner exactly as if an estate tail had been given to the first taker. Per Sir E. Sugden, C., in Rochford v. Fitzmaurice

385

12. Testator devised a freehold estate to his wife, and gave her certain specific chattels. He then gave her an annuity charged upon all his real estate, except that before devised to her, with power of distress for the same, and directed the first payment to be made on the first of the gale days which should occur after his decease. He then charged his debts upon all his real estate (except that devised to his wife), in aid of his personalty; and gave another annuity in similar terms to those used respecting that given to his wife. He then gave pecuniary legacies, which he charged on all his real estate (except that devised to his wife) in aid of his personalty, and gave two other annuities in similar terms to those

13. Semble-The legatees were entitled to priority over the annuitants. Ibid 14. Testator devised all his real estate to a trustee in fee upon trust to apply the rents in discharge of his debts and legacies, and after payment thereof, to convey one denomination to his brother, who was also his heir, for his life; and to convey two other denominations immediately, and the one devised to his brother after his decease, to the second son of the trustee living at the time of his (the trustee's) decease, in strict settlement. The debts and legacies were paid off, and the testator's brother died in the trustee's lifetime; Held, that the rents of the real estate, which remained after payment of the debts and legacies, belonged during the trustee's life, to the heir of the testator. C Wills v. Wills

II. Particular Words.

531

15. It cannot be denied that in common parlance the phrase "unsettled estate" means an estate not put into settlement; and drawing a distinction between its popular meaning and its legal signification, if taken in the former, it would be confined to an estate not put into settlement, while in the latter it is equally open to either interpretation, because it may be either so much of the interest in the settled lands which was not bound by the settlement that was intended to be passed, or the lands which had never been put into settlement. The words in their legal signification will include both. Per Sir E. Sugden, C., in The Incorporated Society v. Richards 192 16. In all the cases the Courts adopt one general rule, whether the words are unsettled," "out of settlement," "not put into settlement, or "not settled in jointure;" they say, we will give to the devisee whatever interest the testator had the power to dispose of in the lands bound by the settlement or jointure,

66

giving to the words their full legal signification. Per Sir E. Sugden, C., in ibid

194

17. As to the effect of the words, "for themselves and their children," I think it is very difficult to hold that the rale in Wild's case (6 Rep. 16 a.) applies to personal property: the rule in Wild's case is this that if a testator devises real estate to one and his children, and he has none at the death of the testator, he shall be held to take an estate tail, thus extending the life interest, which he would otherwise have taken, in order to carry the estate to the children subsequently born. But in a gift of personal estate, the reverse would be the result of adopting such a construction: the father would take the absolute interest in the property, and the children could never acquire an interest through him except by representation; while, in the case of real estate, if the father do no act to interrupt it, the property by that construction may descend to the children. Therefore, the reason of the rule in Wild's case does not apply at all to personal property. Per Sir E. Sugden, C., in Heron v. Stokes 286, 287 18. It is stated that there are no debts, and that the executor, who was also residuary legatee, believing that the entire personal property passed under the word "chattels," allowed the widow of the testator to take possession of it. In that, I think, he was wrong, but as no question arises concerning it, it is unneces sary to decide it. The testator bequeathed all his household furniture, plate, house linen, and all other chattel property that he might die possessed of. I think it is clear the word "chattel" here must mean things ejusdem generis Iwith those that are mentioned in the preceding part of the sentence, and that it would not pass money nor general personal estate; because it is not in terms a gift of the entire personal estate, nor of the residue, and there is a residuary bequest in the will. Per Sir E. Sugden, C., in Lanphier v. Despard

335

19. Under a bequest of "all my Irish

funded property, standing in my name