No. 2. Pickering v. Pickering, 4 Myl. & Cr. 303, 304.

Great injustice would be done if, where there is nothing in the will but a tenancy for life and a remainder, it is always to be held that the property is to be at once converted. Taking the principle, therefore, uniformly adopted in acting upon Howe v. Lord Dartmouth, namely, taking that as a case applicable to circumstances such as occurred in that case, where they are found

to exist, and not controlling cases where a contrary in[*304] tention is to be found in the will, and considering

it

quite as well settled as Howe v. Lord Dartmouth itself is, that when you find an indication of intention that the property is to be enjoyed in its existing state, it shall be so enjoyed, I think that justice could not be done if the principle of Howe v. Lord Dartmouth were applied to the circumstances of this case; and I therefore think that the judgment of the MASTER OF THE ROLLS is quite right.

It is not necessary for me to enter into a consideration of what should be done in a case where a party has allowed the tenant for life for thirty years to enjoy the property in specie; where he has thirty years acquiesced in the tenant for life's enjoyment of it in specie, he himself being all the while the proper hand to receive the money. It is unnecessary for me to enter into that question, because the question raised now is the same which might have been raised immediately after the testator's death, and arises now in the same manner.

I think, therefore, the MASTER OF THE ROLLS was right. There was, undoubtedly, some doubt upon the will; and if the case turned upon the construction of the will alone, I should think it a very fair case for appeal; but when I find it did not turn on this will only, but that the object of the appeal is also to establish the transaction between the son and his mother, I am bound to dismiss the appeal with costs.

ENGLISH NOTES.

Much of the law relating to the liabilities for waste of successive tenants of a settled estate is comprised in the cases No. 9-11 of "Dilapidations," and notes, 9 R. C. 488-507. The liabilities of other temporary tenants are dealt with under the same topic, pp. 419-488.

The principle applied in the above cases lies also at the root of the rule considered under the head of "Apportionment" (between income and capital), 3 R. C. 287 et seq.

In Macdonald v. Irvine (C. A. 1878), 8 Ch. D. 101, 47 L. J. Ch.

Nos. 1, 2.-Howe v. Earl of Dartmouth; Pickering v. Pickering.— Notes. 494, where the testator gave his wife the income of his entire estate (including estate over which he had a general power of appointment), and postponed the payment of legacies given by his will and the distribution of estates vested in him, or which he could appoint, until her death, the Court of Appeal held that the rule in Howe v. Earl of Dartmouth applied: BAGGALLAY, L. J., dissenting on the ground that there appeared a contrary intention within the rule of Pickering v. Pickering.

In the case of In re Pitcairn, Brandreth v. Colvin, 1896, 2 Ch. 199, 65 L. J. Ch. 120, 73 L. T. 430, 44 W. R. 200, the testator had given all his property to trustees upon trust to pay the income to his mother for life, and after her death to pay legacies and pay the residue to a charity. The will contained no express direction to convert, but contained a power for the trustees to sell if and when they should think fit. The bulk of the testator's estate consisted of reversionary interests expectant on his mother's death. The mother survived the testator for fourteen years. The reversionary interests were not realised during her life. It was held by NORTH, J., that the mother was not entitled to have the reversions realised on the testator's death; and that her estate had no claim against the trust fund in respect of the income she would have received if this had been done.

It may be questioned whether this decision of NORTH, J., is consistent with the decision of the Court of Appeal in the case next noted.

In the case of In re Hubbuck, Hart v. Stone, 1896, 1 Ch. 754, 65 L. J. Ch. 271, 73 L. T. 738, 44 W. R. 289, the testator left his residuary real and personal estate to trustees upon trust for sale and conversion, with power to postpone conversion and to spend money for the benefit of the estate, and he declared that no property not actually producing income should entitle any party to the receipt of income. A debt due to the testator was not paid to his trustees, but they obtained a mortgage to secure it, and subsequently they bought a prior mortgage on the same security. No interest was ever paid on the debt, and the security eventually realised less than the principal due. The Court of Appeal, reversing the judgment of STIRLING, J., held that the balance of the fund, after providing for the expenses of protecting the security, was apportionable between principal and interest, that the sum attributable to interest was income produced by the security, and that the tenant for life was not deprived of it by the clause in the will. In the case of In re Bland, Miller v. Bland (STIRLING, J.), 1899, 2 Ch. 336, 68 L. J. Ch. 745, a testator gave all his property to his wife, and by a codicil to his will, after reciting that G. M. was the adopted daughter of himself and his wife, and that he was desirous of providing for her in the event of his wife dying without issue, leaving

Nos. 1, 2.

-Howe v. Earl of Dartmouth; Pickering v. Pickering. —Notes.

her surviving, he directed that in such event the gift in his will in favour of his wife should take effect as if the name of G. M. had been substituted therein for that of his wife. Part of the testator's estate consisted of a reversionary interest in a trust fund. It was held that, having regard to the form of the gift in the codicil, the testator intended that the property should be enjoyed in specie, and that the reversion ought not to be sold. It was argued for G. M. (the plaintiff) that the rule in Howe v. Lord Dartmouth, as to the conversion of wasting property, was confined to the case of tenant for life and remainderman, and had never been extended to an absolute gift subject to an executory limitation over in a certain event. Upon this argument STIRLING, J., observed: "I am not prepared to say that the rule in Howe v. Earl of Dartmouth can never apply to a case of an absolute gift subject to an executory limitation; but I think that the inference as to the intention of the testator upon which that rule is based is weaker in such a case than where the testator has given his property to persons successively as tenants for life and remaindermen. And even in a case where the rule in Howe v. Earl of Dartmouth is strictly applicable, an inference of an intention to the contrary has been drawn from the terms of the gift over. That question was very much discussed by Lord COTTENHAM, L. C., in Pickering v. Pickering."

AMERICAN NOTES.

In America, following the earlier English cases, the rule of the common law was at first thought to be that a gift of personalty for life carried the absolute interest, although its use might be given for life, and that a remainder in chattels could not be created after a life estate, at least by deed. Later, however, a gift for life was regarded as a gift of the use only, and the remainder over was held good, especially when created by will. See Morrow v. Williams, 3 Devereux (N. C.), 263; Powell v. Brown, 1 Bailey (S. C.), 100; Betty v. Moore, 1 Dana (Ky.), 235, 237; Langworthy v. Chadwick, 13 Connecticut, 42; Evans's Appeal, 51 id. 435, 438; Harrison v. Moore, 64 id. 344; Rathbone v. Dyckman, 3 Paige (N. Y.), 1; Waln's Estate, 189 Pennsylvania State, 631; Martin v. Martin, 170 Illinois, 18. Such limitations are not favored, and the Courts will incline against their creation either by devise or by deed, when the words employed are not clear and definite. Brewster v. McCall, 15 Connecticut, 274, 291.

As to the rule of Apportionment, discussed in the English note, it is usually held in America, following the English decisions, that when a corporation declares a stock dividend as an addition to its capital stock, it is to be treated as capital as between a life-tenant and the remainderman, while cash dividends belong to the former as an increment of each share. Gibbons v. Mahon, 136 United States, 549; Slocum v. Ames, 19 Rhode Island, 401; Mills v. Britton, 64 Connecticut, 4; Minot v. Paine, 99 Massachusetts, 101; Daland v. Williams,

Nos. 1, 2. Howe v. Earl of Dartmouth; Pickering v.

Pickering. Notes.

101 id. 571; Davis v. Jackson, 152 id. 58; Thomas v. Gregg, 78 Maryland, 545; Offutt v. Divine (Ky.), 53 Southwestern Rep. 816; see 19 American Law Review, 571, 737. In a recent case the Court of Appeals in New York held that it was not within the power of corporations, in declaring dividends, to determine whether such dividends should become capital or income of an estate; that the rights of the life-tenant and remainderman depend wholly upon the intention of the testator as derived from the face of the will and surrounding circumstances; and that when separate trusts are created by will in favor of each of different living persons, who are to be entitled to the respective incomes until they reach a certain age, when they are to receive the corpus, such beneficiaries are life-tenants before attaining such age, and remaindermen thereafter. McLouth v. Hunt, 154 New York, 179; see Re Hoyt, 160 id. 607; In re Rogers, 161 id. 108; Jermain v. Sharpe, 61 New York Supplement, 700. In Pritchitt v. Nashville Trust Co., 96 Tennessee, 472, it was held that stock dividends declared from a corporation's net earnings which were made after the death of the testator who bequeathed his original stock for life, belong to the life-tenant as income. Under a bequest of certain shares of corporate stock to one for life with remainder over, if the life-tenant dies between the dividend days, the dividend accruing next after his death, unless the testator's intention be clearly otherwise, is not apportioned between the two interests, but it belongs wholly to the owner of the stock at the time it is declared. Mann v. Anderson, 106 Georgia, 818.

The rule adopted in Massachusetts, that upon a devise in trust to pay the income to one class, and finally to another class, repairs upon the property are to be paid from the income, and permanent improvement from the capital, doubtless applies to personalty as well as to real estate. Little v. Little, 161 Massachusetts, 188.

Upon a specific gift for life of chattels which will be consumed, or perish in the use, the tenant for life is clearly entitled to use and exhaust them; but when such a gift is residuary, the articles should be sold by the trustee and the proceeds invested so that the life-tenant may receive his interest, and the principal be preserved for the remainderman. Clark v. Clark, 8 Paige (N. Y), 152, 155; Tyson v. Blake, 22 New York, 558; Scott v. Perkins, 28 Maine, 22; Shaw v. Hussey, 41 id. 495; Saunders v. Haughton, 8 Iredell's Equity (N. C.), 217; Calhoun v. Furgeson, 3 Richardson Eq. (S. C.) 165; Eichelberger v. Barnetz, 17 Sergeant & Rawle (Penn.), 293. In Crawford v. Clark, 110 Georgia, 729, 733, it was held that, as money may be lost, but should not be destroyed in the use, a remainder may be created therein, and that an executory bequest of money, limited upon a definite failure of issue, is valid.

Compulsory partition of personalty cannot be enforced by a remainderman of an undivided interest, as he has not the necessary right of possession. Conter v. Herschel, 24 Nevada, 152. As to requiring security from a tenant for life of personal property for the benefit of the remainderman, see Allen v. De Groodt, 98 Mo. 159, 14 American State Reports, 626, 629, note.

No. 1. — Ashby v. White and others. — Rule.

TORT.

See also No. 4 of "ABATEMENT," 1 R. C. 183 et seq.; "ACCIDENT," 1 R. C. 203 et seq.; "ACTION," 1 R. C. 521 et seq., passim; No. 14 of " AGENCY," 2 R. C. 409 et seq.; "ANIMAL," 3 R. C. 76 et seq., passim; "CARRIER," 5 R. C. 243 et seq.; Sects. 1-4, passim; "DAMAGES," 8 R. C. 360 et seq.; " DEFAMATION," 9 R. C. 1 et seq.; " FRAUD," 12 R. C. 235 et seq.; " MALICIOUS PROSECUTION," 16 R. C. 742 et seq.; " MASTER AND SERVANT," Nos. 4-14, 17 R. C. 212 et seq.; "NEGLIGENCE," 18 R. C. 621 et seq.; 19 R. C. 1-237, passim; "NUISANCE," 19 R. C. 263 et seq.

AN action lies against a person who wilfully and with intent to do harm hinders another in the exercise of his lawful right.

Ashby v. White and others.

Election of Member of Parliament. - Right to Vote.

Remedy by Action.

An action lies by the person having a right to vote against the official maliciously refusing to receive the vote.

A report of the judgment of Lord Chief Justice HOLT, as printed and published in 1837 (see notes, p. 18, post), is as follows:

The plaintiff in this action declares that the 26th of December, in the twelfth year of King William the Third, a writ issued out of Chancery directed to the sheriff of Bucks, reciting, that the King had ordered a Parliament to be held at Westminster on the 6th of February following. The writ commanded the sheriff to cause to be elected for the county two knights, for every city two citizens, for every borough two burgesses, which writ was delivered to the sheriff, who made a precept in writing under the seal of his office, directed to the constables of the borough of Aylesbury, command