of the trusts of his will. By a decree pronounced in that suit, on the 16th of July [178] 1771, the Court declared, that the will was well proved; that the trusts of it ought to be carried into execution; and that the Plaintiffs were entitled to have a sum of money, which they claimed under their father's marriage settlement, raised for their benefit. Then, after directing a reference to the Master, to take the usual accounts of the testator's personal estate, it was ordered, that, out of the clear surplus of the personal estate, if any, the sum of £34,000 provided for the Plaintiffs, by the will, should be raised; that, in case the personal estate should not be sufficient for that purpose, a sum of £16,495 bank stock, then standing in the name of the Accountant-General, to the account of the real estate of Sir Thomas Frederick, in trust in the cause, or so much thereof as would make good the deficiency, should be sold; that, in case the money produced by the sale of the bank stock should likewise prove deficient, the deficiency should be raised by sale of a sufficient part of the testator's real estate; that the sum of £34,000, when raised, should be placed out at interest, upon government securities, with the approbation of the Master, in the names of Charles Garth Thomas Wood and Margaret Bathurst, upon the trusts declared in the will concerning the same; that, out of the interest and dividends to arise on the securities, in which the £34,000 should be placed, the sum of £1000 a-year should be paid to Margaret Bathurst, for the maintenance and education of Selina Frederick and Elizabeth Frederick; that the overplus of such interest should be laid out by the Accountant-General, in Bank 3 per cent. annuities, in trust in that cause the trustees account'; and that, until the £34,000 was raised, the dividends to accrue on the sum of £16,495 Bank stock should be paid to Margaret Bathurst, in part discharge of the allowance of £1000 a-year.

6

[179] After the decree, but before any report had been made, Elizabeth Frederick married Sir John Morshead; and Selina Frederick married Robert Thistlethwayte. In consequence of these events, a bill of revivor and a supplemental bill were filed. In the mean time Mrs. Bathurst died.

In 1779, the Master reported, that the personal estate of Sir Thomas Frederick was insufficient, by the sum of £3570, 11s. 6d., for the payment of his debts and legacies; and, in the same year, at the hearing on further directions, it was ordered, that so much of the £16,495 Bank stock as would be sufficient to raise the sum of £3570, 11s. 6d., with subsequent interest and costs, should be sold, and the proceeds paid to the several parties entitled. This was done; and the £16,495 Bank stock was thereby reduced to £11,885, 14s. 2d.

Another order made in the cause, on the 26th of February 1783, directed, that a moiety of that sum of £11,885, 14s. 2d. Bank stock should be sold; that the produce thereof should be laid out, under the direction of the Court, on a mortgage of a part of Selina Thistlethwayte's estates in the county of Middlesex and Surrey ; and that the interest should be paid, according to the directions of Sir Thomas Frederick's will. In pursuance of this order, the sum of £5942, 17s. 1d. Bank stock was sold; and £6627, 12s. 5d., being the sum raised by the sale, was laid out on a mortgage of Mrs. Thistlethwayte's moiety of some of her father's lands.

Previous to Selina's marriage, Mr. Thistlethwayte, under the sanction of the Court, executed a settlement, in which he entered into certain covenants concerning his intended wife's real and personal property. These [180] covenants were afterwards released; and, under the direction of the Court, a new settlement was made, by deeds of lease and release, bearing date respectively on the 3d and 4th of March 1783. By the release,-which was made between Mr. and Mrs. Thistlethwayte, of the first part; Charles Garth and Thomas Wood, of the second part; and Thomas Cocks and Alexander Thistlethwayte, of the third part, and which recited the will of Sir Thomas Frederick, the proceedings in the cause, the alleged rights of Mrs. Thistlethwayte under her father's will, and the proposal for a new settlement,-it was witnessed, that in pursuance of that proposal, and for the considerations therein mentioned, it was agreed between Robert Thistlethwayte and Selina his wife, with the approbation of Charles Garth and Thomas Wood, that, if the £34,000 should at any time during the joint lives of Robert Thistlethwayte and Selina his wife, be raised, pursuant to the directions of the will of Sir Thomas Frederick, and the decree of the 16th of July 1771, then one moiety of the interest of the £34,000 should from thenceforth, during such joint lives, be paid to Selina Thistlethwayte for her separate use; and, that until the £34,000 should be so raised, a moiety of the rents and profits of the

manor of Danhurst and Hascomb, and of all the messuages, cottages, lands and hereditaments in Hascomb, Tuesley and Godalming, and also a moiety of the interest and dividends of the £11,885, 14s. 2d. Bank stock, should, during the joint lives of Robert Thistlethwayte and Selina his wife, be paid to Selina Thistlethwayte, for her separate use; and likewise that the estate tail, which she would be entitled to, of and in one moiety of the same manors, and of other hereditaments in the county of Surrey, or such of them as should remain after raising the £34,000, should not, at any time during the joint lives of Robert Thistlethwayte and Selina his wife, be [181] barred or destroyed, without the consent of Charles Garth and Thomas Wood, or the survivor of them, or his heirs, testified as there mentioned.

After the execution of these settlements, various sales took place of portions of the London property, and the purchase-monies, being paid into Court to the credit of the cause, were invested in £18,491, 6s. 1. 3 per cent. stock, the dividends of which were, from time to time, paid to Lady Morshead and Mrs. Thistlethwayte, in equal moieties.

In October 1802, Mr. Thistlethwayte died, leaving several children. After his death, Mrs. Thistlethwayte resolved to destroy her equitable estates tail in the moiety of the hereditaments devised to her by her father. For that purpose, by an indenture of bargain and sale, bearing date the 7th day of February 1803, and made between Thomas Wood, the heir of the surviving trustee, of the first part; Selina Thistlethwayte, of the second part; Peter Still, of the third part; and Robert Strong, of the fourth part; Thomas Wood bargained and sold, and Selina Thistlethwayte granted, bargained and sold to Peter Still and his heirs, all her undivided moiety of the devised premises, and all the estate and interest, legal and equitable, of him and her therein, to hold the same to Peter Still and his heirs; to make him tenant of the freehold, in order that common recoveries of the premises might be suffered, which should enure to the use of Selina Thistlethwayte, in fee. Recoveries were accordingly suffered; but the bargain and sale was not enrolled till the 10th of August 1803, when more than six lunar months, from the day on which it bore date, had elapsed. [182] At the time of the execution of the bargain and sale, some wood lands were in hand, all the rest of the estate, except an advowson, was in the occupation of tenants. In 1804, Thomas Wood, the heir of the surviving trustee, conveyed, under the direction of the Court, the hereditaments, late the estate of Sir Thomas Frederick, to new trustees, to hold the same to and to the use of them and their heirs, upon the trusts and subject to the powers expressed in the testator's will, so far as the same were undetermined.

In 1813, Sir John Morshead died; and, shortly afterwards, his widow suffered a recovery of her moiety of her father's real estate.

was

A marriage having been agreed upon between Selina Thistlethwayte and the Plaintiff, Joshua Smith Simmonds Smith, deeds of lease and release, dated on the 19th and 20th of June 1812, were executed for the purpose of settling her fortune to her separate use. The release, in enumerating the various descriptions of property of which the lady's fortune consisted, recited, among other things, that she seized of or entitled to the rents and profits, during her life, of an undivided moiety of certain hereditaments in the parishes of Hascomb and Hampton, and other places in the several counties of Surrey and Middlesex, late the estate of her father and grandfather, or one of them; that she was also entitled, during her life, to the dividends of the several sums of £4325, 15s. 9d. and £10,638, 6s. 1d. 3 per cent. consolidated annuities, standing in the name of the Accountant-general, under or by virtue of the last will and testament of Sir Thomas Frederick, and to the dividends or annual produce of certain other trust-funds, consisting of £96, 10d. stock of [183] the Bank of England, standing in the name of the Accountant-general." It then conveyed to trustees all her real estate; all the dividends, during her life, of the stocks, funds, and securities therein before mentioned, and of all other trust-funds, stocks or securities, to which she was entitled for life; and all other the personal estate and effects (with some particular exceptions), in which she had any interest, upon certain trusts for her separate use. Under these trusts, the property, to which she was entitled otherwise than for her life only, was made subject to her appointment by deed or will, and, in default of appointment, was to go to the heirs, executors, administrators and assigns of her, Selina Thistlethwayte, as if she were a feme sole. In no part of this settlement was any mention made of the £34,000.

The marriage was shortly afterwards solemnized; and Mrs. Smith, in the following year, made a will, executed with the forms requisite to the due exercise of the power reserved to her; by which, after bequeathing an annuity of 100 guineas, she gave and bequeathed to her husband all the residue of the money and personal property over which she had a disposing power, whether consisting of money in the funds, or on mortgage, or otherwise charged on any estate, or of whatever description the same might be.

In July 1815, Mrs. Smith presented a petition, which,-after setting forth her father's will, the proceedings in the suit, and her right to the £6627, 12s. 5d. laid out on mortgage (being the produce of a moiety of the Bank stock which stood to the account of Sir Thomas Frederick's real estate, and had been treated as part of the £34,000), and to a moiety of the sum of £18,491, 6s. 1d.,-stated, "that she was advised, that, under the [184] limitations in the will of Sir Thomas Frederick, she was entitled absolutely to one moiety of the sum of £34,000 when the whole thereof should have been raised, or to so much thereof as had been raised, and that she might release her moiety of the real estate of Sir Thomas Frederick remaining unsold, from the raising or being liable to contribute towards the raising of any further part of such sum." It then recited, that upon her marriage with Mr. Smith, no settlement, or agreement for a settlement, had been made, which could affect her interest in the funds that were in question in the cause; and it prayed, that she might be declared to be entitled absolutely to the £6627, 12s. 5d., and that the moiety of the stock might be transferred to her for her separate use. On the 28th of July, the Court, with the consent of the other parties, made an order to the effect prayed.

In June preceding, Lady Morshead had presented a petition, containing similar recitals, and praying similar directions and declarations with respect to the other moiety of those funds; and on the 15th of that month, an order was made according to her prayer.

In 1817, Mrs. Smith died. Her husband took out letters of administration to her, with her will annexed; and her real estates descended to her eldest son by her former marriage, either as her heir-at-law or as the heir of her body. In 1823, Mr. Smith filed his bill, insisting, that, either as her appointee, or as her administrator, he was entitled to so much of the moiety of the £34,000 as had not been raised during the life of his deceased wife. The prayer was, that what remained due for principal and interest, in respect of the charge of £34,000, might be raised by the sale or mortgage of a competent part of Sir Thomas Frederick's real estate, and that the sum due to the Plaintiff, as [185] appointee or administrator of his deceased wife, in respect of her moiety of the £34,000, might be paid to him.

Thistlethwayte, the principal Defendant, by his answer submitted," that, according to the true construction of Sir Thomas Frederick's will, the disposition, immediately preceding the limitation to the testator's own right heirs of one moiety of the sum of £34,000, did not vest an absolute interest therein in Selina Smith: but that, owing to the prior limitations thereof, the same continued so far in suspense or expectancy during her life, as to vest on her death in him Thistlethwayte as her heir in tail." He also insisted, that, even if Selina took an absolute interest in her moiety of the £34,000, yet, by reason of the nature and extent of her interest in the lands charged with that sum, and of the indenture of the 7th of February 1803, and the recoveries suffered in pursuance of it, and of her acts and conduct, so much of her moiety of the £34,000 as was not raised in her life-time, was intended by her to sink, and did sink into the moiety of the lands charged with it, and therefore ought not to be now raised.

Mr. Horn, Mr. Sugden, and Mr. Garratt, for the Plaintiff. Each daughter took a quasi estate tail, and consequently an absolute interest in a moiety of this charge of £34,000. Words which are sufficient to create an estate tail in lands of inheritance, will give the absolute property of a chattel, Austin v. Taylor (Ambler, 376; 1 Eden, 361); even though it should have been clearly the intention of the testator to confer only a life interest, Brouncker v. Bagot (1 Mer. 271); [186] and the same rules apply, when the chattel is disposed of, not by direct and substantive limitations, but by words of reference to clauses, by which the realty is devised. Britton v. Twining (3 Mer. 176). Here Sir Thomas Frederick gives to each daughter, upon her attaining twenty-one or marrying, a moiety of the interest of the £34,000 for ninety-nine years, if she so long lives; and after having made some other partial

dispositions of it, in the event of either or both of his daughters dying and leaving no issue, he directs, that, after their decease, the £34,000 shall be paid, in moieties, or the whole, as the case may be, to such persons or person, as, under the subsequent uses and limitations, should be entitled to the residue of his real and personal estate. Now, when we look to those subsequent uses and limitations, we find, that each daughter, upon attaining twenty-one, or marrying, took an equitable estate tail in a moiety of the lands, with remainder to her sister in tail, remainder to the right heirs of the testator. These same limitations must attach upon the £34,000, subject to the partial interests which are created by the prior words of express gift; and, therefore, Selina, upon attaining twenty-one or marrying, not only was entitled to receive a moiety of the interest during her life, but, subject to the partial interests which were to arise if either or both of the daughters died without issue, she became tenant in tail, and consequently absolute owner, of a moiety of the fund.

It is impossible to construe the limitation of the residue of the estate as being, in respect to this sum of £34,000, merely a designation of the persons, who, after the death of the ladies, were to enjoy the fund. If the effect of this limitation had been to give to the daughters [187] an estate for their respective lives, to their separate use, remainder, after the decease of each of them, to the heirs of their respective bodies, there might have been some ground to contend for such a construction. But here, the gift of the residue of the real and personal estate, which is applied by words of reference to the charge of £34,000, is" to the testator's daughters, to hold to them and the heirs of their respective bodies lawfully begotten." These words must vest an estate tail in the daughters themselves.

In truth, this question has been already decided. Part of the sum was raised by the Court in the suit for the administration of Sir Thomas Frederick's estate; and, by the orders of June and July 1815, that portion of it has been declared to belong to the daughters absolutely. Their rights, in so much of the charge as has not yet been raised, must be the same.

Though the whole of the £34,000 has not been actually severed from the inheritance, it must be considered as having been all along a fund existing in equity; the direction to raise it, contained in the will, is imperative; the decree of 1771, orders it to be raised; a considerable part of it was duly appropriated; and, to accomplish. that purpose, some parcels of the real estates were sold. The settlement made on Selina's first marriage treated the charges as subsisting, and so did all the subsequent proceedings in the suit; Selina, therefore, at the time of her marriage with Mr. Smith, was entitled absolutely to a moiety of the £34,000, which was charged upon the entirety of her father's real estates; and Mr. Smith, either as her appointee or as her personal representative, is entitled to have so much of her moiety of the sum, as was not satisfied in her life-time, raised out of the entirety of the lands. Nor will any [188] injustice be thereby done to Lady Morshead: for, though a charge is thus thrown upon her moiety of the estate, she can indemnify herself by calling in like manner upon the entirety of the lands, to make good to her the whole of her moiety of the £34,000, so as, in effect, to shift over upon Selina's portion of the inheritance the whole weight of Selina's portion of the charge.

Thus stands the right of the Plaintiff ; ;-a right which cannot be resisted, except by shewing, that Mrs. Smith, while sui juris, did some act which extinguished the charge; and an act, to have that effect, must manifest a clear intention that the charge should cease. The only act done by her, to which such an operation can be ascribed, is the recovery suffered in 1803. Being, before that recovery, equitable tenant in tail of a moiety of the real estate, it was very natural that she should wish to convert her estate tail into a fee, and to clothe her equitable with the legal interest. But what is there in such a purpose, that manifests an intention to extinguish a portion of an entire charge, which it was not possible for her to extinguish in toto, and of which, indeed, it was not possible for her to extinguish even the minutest portion absolutely, since there were contingencies, on which the whole of it would, for a time, vest in other persons? If it had been her purpose that the charge should cease, nothing would have been easier than to have introduced a declaration to that effect in the deed leading the uses of the recovery: but when we look at the bargain and sale, we find not a single recital or clause pointing at such an object. In suffering the recovery, she had no intention beyond the 0. XVIII.—3*

acquisition of the fee. The acquisition of the fee would not in itself merge such an interest as she had in this sum of money; and there is not the slightest indication of a purpose, that it should produce such an effect.

[189] It would be contrary to every rule of fair construction, to consider a dealing with an independent moiety of the estate as destructive of a charge which affected the entirety. In fact, the recovery, even if it had vested in her the legal and equitable fee of her moiety of the lands, could not have produced any merger or extinguishment of the charge; and that for two reasons. First, no act of Selina's could have affected more than her own interest in a moiety of the £34,000. Now, that moiety was a charge upon the entirety of the estate; and a recovery, which comprised only a moiety of the estate, could not have any operation on that moiety of the charge, except so far as that moiety of the charge was raisable out of that moiety of the estate to which the recovery extended; consequently, as the moiety of the sum issued out of the entirety of the estate, only a moiety of the moiety of the charge could be affected by the recovery. Secondly, during the whole of Selina's life, her death without leaving issue was a possible event; and, in that case, Lady Morshead would have become entitled for her life to the interest of that £17,000, the income of which had been enjoyed by Selina. The extinguishment of Selina's moiety of the charge would have destroyed the contingent interest of Lady Morshead; for if the thing were annihilated, no partial interest in it could have continued available; and it clearly could not be competent to Selina to destroy, by any act of her's, a right which belonged to another person under a title over which she had no controul.

It is in vain to say, that the moiety of the charge was to be extinguished, so far as Selina had an interest in it, and no farther; that it was to cease in toto, if she died leaving issue, and was to revive if she died leaving no issue. There is no declaration of any such complicated intention nor need we inquire what would have been [190] the consequences, even if she had declared such a purpose. It is enough that no such purpose has been declared, and that, without most express declarations of intention, it is impossible to make a charge, which is once distinctly and imperatively fixed upon lands by the will of a testator and the decree of this court, cease at one time to exist and revive at another.

It was impossible for either of the two daughters of Sir Thomas Frederick, by any act of her own, to have extinguished any portion of this charge of £34,000 ; and there is no act in which they both concurred. Mrs. Smith suffered a recovery of one moiety of the lands, which could not affect the charge, so far as Lady Morshead had any interest in it. Lady Morshead afterwards suffered a recovery of the other moiety of the lands, which could not affect the charge, so far as Mrs. Smith had any interest in it. Not only, therefore, is there no clear manifestation of intention that the charge should be extinguished, but no act has been done, which, on any legal or equitable construction, could have been competent to produce such an effect.

Indeed there was no motive of convenience or interest, to induce either of the ladies to desire an extinguishment. Each had a contingent interest in the other's moiety of the charge, so as to render it advantageous to each to keep that moiety at least alive and the limitation for the term of ninety-nine years, subject to which they had the absolute property of the £34,000, securing the money to their separate use during coverture, the merger of the charge would have been the destruction of a separate and independent provision which had been made for them respectively. A purpose so contrary to their interests must not be imputed to them, except upon the clearest evidence.

[191] But whatever might have been the effect of the recovery, if it had been well suffered, so as to vest, as it was meant to do, the legal and equitable fee in Mrs. Smith, we have not to deal with any such question here; for there is a fatal objection to the recovery itself. The bargain and sale, not being enrolled within six lunar months from the day of its date, did not pass the freehold to the tenant to the præcipe. The legal fee, therefore, was never conveyed to Mrs. Smith: it remained in the trustee, whose imperative duty it was to raise the charge, and who could not be exempted from that duty, except by the concurrent act of all the parties interested in the fund.

The same objection applies to the validity of the recovery, as barring the equitable