tain accounts to be taken upon the footing of the before-mentioned declaration; and it ordered that the Master should compute interest at 4 per cent upon the balance which he should find due from the defendant in respect of the arrears of the annuity accrued due in the lifetime of the testator from the time at which the defendant received such arrears to the time of the widow's death. The defendant was ordered to pay the plaintiff's costs of the suit. From this decree the defendant appealed, insisting that the bill ought to have been dismissed with costs.

The Solicitor-General, Mr. Tinney, and Mr. Sharpe, for the plaintiff.

Mr. Wigram, Mr. Richards, and Mr. Lloyd, for the defendant. Upon the question of law involved in the case, the following authorities were referred to: Howe v. Earl of Dartmouth, 7 Ves. 137 (p. 29, ante); Livesey v. Livesey, 3 Russ. 287; Collins v. Collins, * 2 Myl. & K. 703 (39 R. R. 337); Alcock [* 297] v. Sloper, 2 Myl. & K. 699 (39 R. R. 334); Bethune v. Kennedy, 1 Myl. & Cr. 114 (43 R. R. 153); Mills v. Mills, 7 Sim. 501 (40 R. R. 176).

The LORD CHANCELLOR [after referring to the facts of the case, and stating that the evidence clearly showed that the agreement could not stand, proceeded as follows:-]

That brings it to the question upon the will, and the first question upon the will is, whether this alleged account was taken at any reasonable time after the death.

The death happened in the year 1801, and the alleged agreement is of the year 1830.

The son was the executor. The mother was tenant for life. The property, so far as it was affected by the arrangement made in the year 1830, is a leasehold house in the Strand, and what was then supposed to be a lost property, an annuity payable by a party from whom nothing had been received for a great number of years, and who was supposed to be insolvent. So far, therefore, as the property was producing anything, it consisted of a leasehold house, of which the son, as executor, was legally possessed, and of which he had himself received the rents or permitted his mother to receive the rents - from the year 1801 to the year 1830; and in the year 1830 he conceives the idea that she, being tenant for life, ought not to have received the rents, but that the house.

No. 2.

Pickering v. Pickering, 4 Myl. & Cr. 297-299.

should have been sold, and the interest of the produce [*298] paid to his mother for her life. Now, without adverting, at present, to the length of time which elapsed before he made this demand, during all which period he permitted his mother to receive the rents, or received them himself, and paid them to his mother, the question is upon the construction of the will. Very nice distinctions have been taken, and must have been taken, in determining whether the tenant for life is to have the income of the property in the state in which it is at the time of the testator's death, or the income of the produce of the conversion of the property. The principle upon which all the cases on the subject turn is clear enough, although its application is not always very easy.

All that Howe v. Lord Dartmouth, 7 Ves. 137, decided — and that was not the first decision to the same effect is that, where the residue or bulk of the property is left en masse, and it is given to several persons in succession as tenants for life and remaindermen, it is the duty of the Court to carry into effect the apparent intention of the testator. How is the apparent intention to be ascertained, if the testator has given no particular directions? If, although he has given no directions at all, yet he has carved out parts of the property to be enjoyed in strict settlement by certain persons, it is evident that the property must be put in such a state as will allow of its being so enjoyed. That cannot be, unless it is taken out of a temporary fund and put into a permanent fund.

*

But that is merely an inference from the mode in which [*299] the property is to be enjoyed, if no direction is given as to how the property is to be managed. It is equally clear that, if a person gives certain property specifically to one person for life, with remainder over afterwards, then, although there is a danger that one object of his bounty will be defeated by the tenancy for life lasting as long as the property endures, yet there is a manifestation of intention which the Court cannot overlook.

If a testator gives leasehold property to one for life, with remainder afterwards, he is the best Judge whether the remainderman is to enjoy. The intention is the other way, so far as it is declared, and the terms of the gift, as a declaration of intention, preclude the Court from considering that he might have meant that it should be converted.

Those two kinds of cases are free from difficulty, but other cases

No. 2.-Pickering v. Pickering, 4 Myl. & Cr. 299, 300.

of very great difficulty may occur in which it may be very doubtful whether the testator has left property specifically, but in which there are expressions which raise the question whether the property is not to be enjoyed specifically; for, as the MASTER OF THE ROLLS appears to have observed in the present case, the word "specific," when used in speaking of cases of this sort, is not to be taken as used in its strictest sense, but as implying a question. whether, upon the whole, the testator intended that the property should be enjoyed in specie. Those are questions of difficulty, because the Court has to find out what was the intention of the testator as to the mode of management, and as to the mode of enjoyment.

Of all the cases which have been referred to, that one which appears to me to be most near the present is the

case of Collins v. Collins, 2 Myl. & K. 703 (39 R. R. [* 300] 337). Alcock v. Sloper, 2 Myl. & K. 699 (39 R. R. 334), which was also cited, is not so much in point, because there the testator gave to one person for life, and then directed that the property should be sold after his decease.

In Collins v. Collins, the gift was, "I give to my wife Sarah Collins all and every part of my property in every shape, and without any reserve, and in whatever manner it is situated, for her natural life; and at her death the property so left to be divided in the following manner: one-half in equal proportions to my father John Collins, and so on." Now there is no direction there for conversion; there is a gift of property described to be of various qualities, which the wife is to have for her life; and after her death it is to be divided. Sir J. LEACH was of opinion that there was a sufficient indication of intention that she should enjoy the property in specie.

Now it appears to me that that case is as near to this as any two cases can be to each other; because, in that case there was nothing but expressions applicable to a particular enjoyment of the property. Now, in this will, there are expressions referable to the particular descriptions of property the testator had. There is, after the death of the wife, a direction that it shall go over to a particular person, but there is that which makes it more like Collins v. Collins than like any other case, because he directs it, in a certain event, to be divided.

It remains, therefore, to see what expressions there are in this

No. 2.-Pickering v. Pickering, 4 Myl. & Cr. 300-302.

will which bring it within Collins v. Collins; but before I do so. I will say that I entirely concur in Collins v. Collins, and [* 301] that I think it would be a * violation of the testator's intention not to allow the wife to enjoy the income of the property as it is.

His words are, "Subject to and after payment of my debts, and the sums of money and legacies hereinafter given, and such annuities and insurances as I am liable to pay, I give and bequeath to my said wife all the interest, rents, dividends, annual produce and profits, use and enjoyment, of all my estate and effects whatsoever, real and personal, for and during the term of her natural life."

Well, he then gives her certain specific articles, and then comes a clause which has been the subject of observation on both sides, but which appears to me to be very strong in favour of the tenant for life:

"I give to my said wife for her own absolute use and benefit all the rest of my household furniture, wine, coals, and other stores, linen and china, and fifty volumes of my books, to be selected by herself (folios excepted), but only the use for her life of my plate and pictures." So that he had given her the enjoyment for life of certain property, then he gives certain articles, in words, which might have included the plate and pictures, but he excepts them, and says he intends that they should fall under that gift in which he gives her the use and enjoyment of all his property.

Then he says, "And at the decease of my said wife I give, devise, and bequeath unto my said son-in-law, Edward Rowland Pickering, all the rest and residue of my estate and effects whatsoever, both real and personal; to hold to him, his heirs, executors, administrators, and assigns forever, subject as aforesaid, and to the payment of such sum and sums of money as I have undertaken or shall undertake to pay after my said wife's decease." *Now he had not given the rest and residue of his estate in those words before. He gives no rest and resiWas it rest and residue at

[* 302]

due till after the decease of his wife. his death, or was it rest and residue at his wife's death? We must look at the words of the will for the purpose of ascertaining that. Now he gives at her decease; but to justify the defendant's construction we must read the words rest and residue as meaning rest and residue at his own death, and not at his wife's. might be very different if she should live so long as this perish

It

able property should last. "But if the said Edward Rowland Pickering shall die in her lifetime, not having married, then I give one-half part of such rest and residue of my estate and effects, subject to the payment of one-half of such sum and sums first and last above alluded to, unto my nephew John Surel Andree, and my niece Mary Ann Andree, equally to be divided between them, to hold to them or the survivor, if one only shall survive my wife, their, his, and her heirs, executors, administrators, and assigns. forever;" which brings it precisely within Collins v. Collins. Then there is a codicil which is only important as it shows the nature of the property, and how unlikely it is that the testator intended that the property should all be immediately converted. [His Lordship then read the codicil.]

So that, from this codicil, we have this fact, namely, that there was an annuity which the testator was liable to pay. The case shows that there was also an annuity which he was entitled to receive, and it appears he had insured a particular person's life. He makes a specific appropriation of what he shall so receive. He might sell the annuity he was entitled to receive, but he could not get rid of the annuity he was liable to pay. How

* is the principle of Howe v. Lord Dartmouth to be carried [* 303] into effect as to these sums?

It is also a strong indication of what the testator himself meant, because he says, "subject to such annuities and insurances as I am liable to pay," and it is obvious that, if the property were all converted, the interest of the tenant for life might be entirely destroyed, because the income might not be enough to pay the annuity and the insurances.

It is often very difficult to carry out the principle of Howe v. Lord Dartmouth. Here was the annuity for many years not paid; the tenant for life got nothing from it. It was not saleable; for the party liable to pay it was supposed to be insolvent. Suppose it had been foreseen that it would ultimately be recovered, still a sum of money payable thirty years hence cannot be much relied on. All that time the tenant for life gets nothing.

The only way in which justice could be done would be to take the facts as they ultimately turned out, and see what was the value before, because that was all that the remainderman was entitled to, namely, the value of the property convertible thirty years hence.