No. 1. Howe v. Earl of Dartmouth; Howe v. Countess of Aylesbury.— Rule.

legacies, and subject to these trusts for J. for life, remainder to J.'s sons in tail male, remainder to C. for life, etc. J. died unmarried, C. went into possession. The debts still remaining unpaid, application was made for an order authorising C. to raise money under sect. 11 of the Settled Land Act, 1890 (53 & 54 Vict. c. 69), for the purpose of discharging encumbrances. It was held that, notwithstanding the trust for accumulation, C. was "beneficially entitled to possession,' and entitled to exercise the powers of a tenant for life under the Settled Land Act, 1882, sect. 58.

And where land was limited to trustees of a marriage settlement to the use of the trustees for twenty-one years, and subject thereto to the use of the husband for life, and the trusts of the term were to manage the property, pay annuities, and accumulate the residue, such accumulations to be capital moneys under the Settled Land Act, it was held by KEKEWICH, J., that the husband was a person having the powers of a tenant for life under the Settled Land Act, 1882, sect. 58. In re Martyn, Coode v. Martyn (1900), 69 L. J. Ch. 733.

On the definition of "tenant for life," and persons having the powers of a tenant for life under the Settled Land Acts, see also the topic "Settled Land Acts," No. 1, and notes 24 R. C. 42 et seq.

TENANT FOR LIFE AND REMAINDERMAN.

[And see No. 9 of " DILAPIDATION," and notes 9 R. C. 488/et seq.]

WHERE personal property is given by a testator en masse, by a general description, to be enjoyed by persons in succession, it must, as a general rule, be converted into a fund producing a permanent income which can be so enjoyed.

No. 1. — Howe v. Earl of Dartmouth; Howe v. Countess of Aylesbury, 7 Ves. 137, 138.

But if an intention appears that the property, or what is left of it, is to be enjoyed in specie, that intention will receive effect.

Howe v. Earl of Dartmouth.

Howe v. Countess of Aylesbury.

7 Vesey, 137-152 (6 R. R. 96).

Tenant for Life and Remainderman.

Investment of Personalty.

General rule, that where personal property is bequeathed for life with [137] remainders over, and not specifically, it is to be converted into the 3-per cents, subject in the case of a real security to an inquiry, whether it will be for the benefit of all parties; and the tenant for life is entitled only upon that principle.

William, Earl of Strafford, by his will, dated the 25th of October, 1774, gave to his wife Anne, Countess of Strafford, all his personal estate whatsoever (except the furniture of Wentworth Castle) for her life, subject to the following out-payments and legacies. He also left to her all his houses, gardens, parks, and woods, and all his landed estates for her life; and afterwards all his personal and landed estates to his eldest sister Lady Anne Conolly, for her life; and then to the eldest son of George Byng, Esquire; and afterwards to his second, third, or any later sons he may have by the testator's niece Mrs. Byng; and then to the eldest son and other sons successively of the Earl of Buckingham by his niece Caroline: but all of them to be subject to the following out-payments and legacies. He left his wife the sum of £15,000, to dispose of forever as she pleases, and the value of £500 in furniture in Wentworth Castle, of whatever sort she chooses; else the whole furniture to be hers, if she meets with any difficulty in this disposition. He gave several legacies and [* 138] annuities; and declared, he would have all his debts paid; and gave all his servants a year's wages.

Anne, Countess

The testator died on the 10th of March, 1791. of Strafford, died in his life, on the 9th of February, 1785. Lady Anne Conolly filed a bill for an account of the personal estate, &c. By a decree, made at the Rolls on the 17th of May, 1793, the usual accounts were directed; and it was declared, that the plaintiff would be entitled to the interest of the clear residue of the testator's personal estate during her life; and an inquiry was

No. 1.-Howe v. Earl of Dartmouth; Howe v. Countess of Aylesbury, 7 Ves. 138, 139.

directed, who were the next of kin of the testator at the time of his death.

The Master's report, dated the 7th of March, 1796, stated the account of the personal estate; part of which consisted of the following stocks and annuities, standing in the testator's name at his death:

£4320 Bank Stock; £9572 per annum Long Annuities; £750 per annum Short Annuities.

Under orders made in the cause the sums of £15,000 and £4000 had been paid in by the executors, and laid out in 3 per cent Consolidated Bank Annuities.

By a decretal order, made on the 7th of May, 1796, the balance of the personal estate in the hands of the executors, and of the interest, &c., was ordered to be paid into the bank; and that the executors should transfer the £4320 Bank Stock, the £9572 per annum Long Annuities, and £750 per annum Short Annuities, to

the Accountant General, in trust in the cause; and that [*139] the said funds, when so transferred, should be sold * with

his privity; and that the money to arise by such sale should be laid out in the purchase of 3 per cent annuities, in trust in the cause, subject to farther order; and that the master should appropriate a sufficient part of the said Bank Annuities, when purchased, to answer the growing payments of the several annuities; and that as any of the annuitants should die, the funds appropriated respectively, should fall into the general residue, with liberty to apply, and it was ordered, that the interest of the residue of the said bank annuities after such appropriation, and also the interest and dividends of the said £4320 Bank Stock, should be paid to the plaintiff Lady Anne Conolly for her life; and on her death any person or persons entitled thereto were to be at liberty to apply; and after providing for the costs out of the balance of the personal estate, and for the arrears of the annuities out of the sum of £2067 6s. 1d., the balance of the interest and dividends received by the executors, and ordered to be paid into the Bank, it was ordered, that the remainder should be paid to Lady Anne Conolly; and also, that £1846 9s. 7d. cash in the Bank, which had arisen from interest of the funds, in which part of the testator's personal estate had been invested, should be also paid to her; and that the dividends of £24,619 4s. 10d. 3 per cent Bank Annuities, in which the sums received by the executors from the

No. 1.--Howe v. Earl of Dartmouth; Howe v. Countess of Aylesbury, 7 Ves. 139–141.

personal estate had been invested, should from time to time be paid to her during her life; and on her death any persons claiming to be entitled were to be at liberty to apply; and it was ordered, that the executors should get in the outstanding personal estate; and that so much thereof as should consist of interest, should be paid to Lady Anne Conolly; and so much as consisted of principal should be paid into the Bank, subject to farther order.

* The Master's farther report, dated the 10th of Decem- [* 140] ber, 1796, stated, that the Bank Stock and the Long and Short Annuities had been sold, and the produce laid out in 3 per cent annuities.

Upon the death of the plaintiff, Lady Anne Conolly, the suit was revived by her executors; and the cause coming on before Lord ALVANLEY, then MASTER OF THE ROLLS, for farther directions on the subsequent report, it was insisted on the part of Mr. Byng, that Lady Anne Conolly had received for interest and dividends, accrued on the Bank Stock, and the Long and Short Annuities, and the produce thereof laid out in Bank 3 per cent annuities, large sums more than she was entitled to, if those funds had been sold, as they ought to have been, immediately after the testator's decease, and the produce invested in a permanent fund, viz., the 3 per cent Consolidated Bank Annuities. The MASTER OF THE ROLLS directed inquiries with reference to that question between the executors of Lady Anne Conolly and Mr. Byng and the other parties interested in the residue of the personal estate; with liberty to present a petition to rehear the Order of 1796, as to the payments thereby directed to be made to Lady Anne Conolly.

The rehearing was argued before Lord ROSSLYN, but no judgment was given.

Mr. Mansfield, Mr. Lloyd, Mr. W. Agar, Mr. Wingfield, Mr. Sergeant Palmer, Mr. Bell, and Mr. Richards, for different parties, in support of the petition of rehearing:

The tenant for life of such funds as Bank Annuities, carrying a higher interest, and Long and Short Annuities,

wearing out rapidly, are not entitled to the enjoyment [* 141] of them in specie; but there is a standing rule of the Court for the benefit of all parties interested, that those funds shall be laid out in the more equal fund, the 3 per cents. No party ought to suffer by the circumstance, that what ought to

No. 1. Howe v. Earl of Dartmouth; Howe v. Countess of Aylesbury, 7 Ves. 141–145.

have been done, and what the Court would have directed to be done, immediately on the testator's death, was not done. The state of this question is, that the late LORD CHANCELLOR went out of office without having delivered any opinion upon the point; and Lord ALVANLEY thought, he could not decide against the order of the LORD CHANCELLOR, supposing his Lordship to have been of opinion, that there was something particular in this will, upon the distinction between the gift of a general residue for life, with remainder over, and a specific bequest of this sort of property; in which case it could not be sold, and the dividends follow of course from the death of the testator; even the rule, that takes place in general legacies, postponing the payment of interest to the end of a year from the death, not attaching upon it. But there is nothing specific in this will. This is a mere gift of the residue of the personal estate for life, subject to the payment of debts, legacies, and annuities. Under every such will the Court has always sold this sort of property; if there was any wearing out fund, not specifically given, or any fund, as to which the tenant for life had an advantage over those in remainder, Gibson v. Bott, 7 Ves. 89 (6 R. R. 87). . .

[143]

Mr. Romilly and Mr. Trower, for the executors of Lady Anne Conolly, in support of the decree:

The first question is, whether Lady Anne Conolly was [* 144] entitled to the annual produce of the personal estate * at the death of the testator; if not, the next consideration is, whether, the executors having paid it to her, and particularly the dividends of the bank stock, those payments ought to be called back.

As

The personal estate is given to her for life specifically. this disposition is expressed, it is the same as if the testator had enumerated the particular articles, of which the personal estate consisted. He has not given his personal estate to his executors, in trust to sell, &c., and that what remains shall be given to those persons; but he has given the personal estate to them specifically, as he has given the land. . .

[145]

The second question is of considerable novelty, as to what is to be done with the dividends received, particularly upon the Bank Stock. With reference to the Bank Stock, as distinguished from the annuities, no case has established, that the executor had done wrong by paying to the tenant for life the in