estate tail for there is no authority for alleging, that an equitable recovery is valid, when the tenant to the præcipe is made by a bargain and sale not duly enrolled. In an equitable recovery, the forms of a legal recovery must be pursued. In truth, therefore, Mrs. Smith continued to be, and died, tenant in tail of her moiety of the estates; and, consequently, there is no ground for alleging that the charge sunk into the inheritance, and that her absolute interest in the money became identified with her partial interest in the lands.

The conduct of the parties, subsequently to the suffering of the recovery, far from affording any presumption that Mrs. Smith supposed that she had extinguished her interest in the £34,000, leads rather to a contrary inference. The indenture executed on her marriage with Mr. Smith, though full of blunders, and though altogether in mistake as to the sums which it represents her as taking under her father's will, makes no mention of the extinguishment of any of her rights, but shows a purpose to subject all that she took under the will to the [192] uses and powers of that settlement. There is not in it any allusion to the recovery, and it supposes her to be only tenant for life of the real estates: so that, when that settlement was executed, no idea could have been entertained that the charge was sunk into the lands.

At a still later period, the orders of June and July 1815, shew that the £34,000 was even then regarded as a subsisting charge. These orders recite, that Mrs. Smith and Lady Morshead were advised "that they might release their moieties of the estate from being liable to contribute any further sum." At that time, therefore, the charge was considered, not as extinguished, but as subsisting, though capable of being extinguished: and no act was done subsequently, by which it could be affected.

Mr. Shadwell, Mr. Preston, and Mr. Tinney, for the principal Defendants. I. The daughters did not take a quasi estate tail in the £34,000. The language of the will is such, that we may connect the words, by which reference is made to the limitations of the real estate, with the contingency spoken of in the p eceding clause; riz. the death of both daughters not leaving issue: and then, as that contingency did not happen, these limitations would never take effect.

If that construction be rejected, still the words of reference, and the limitations, to which the reference is made, give an interest in the fund by way of remainder, expectant on the death of the daughters respectively, which would vest, not in them, but in the heirs of their bodies as purchasers. The testator first bequeaths the interest of the £34,000 to his daughters in equal shares, for ninety-nine years, if they so long live; and [193] he then directs, that, after their decease, the whole, or the moiety of the fund, as the case may be, shall go to the same person or persons as should be entitled, under his subsequent disposition, to the residue of his real estate. The persons, who would be so entitled under this disposition, are the heirs of the bodies of the daughters. The true effect of the bequest therefore is, to give Selina the moiety of the interest of the £34,000 for ninety-nine years, if she so long lives and, after her decease, the moiety of the fund is to go to the heirs of her body. Such limitations would not create an estate tail in lands, and will not confer the absolute property of the money. It is incorrect to say, that the limitations of the real estates are here extended by words of reference to the £34,000; for the true effect of the words of reference is, to direct, that, after the death of the daughters, the money shall belong to the persons designated in that part of the wil to which the reference is made. The limitations of the real estates are executed; the limitations of the money are executory.

If leaseholds are limited to a woman for life, to her separate use, and, after her decease, to the heirs of her body: or, if, in a will, they are given to her for life, to her separate use, and after her decease, to her issue; she does not take a quasi estate tail in the chattel. Champion v. Pickax (1 Atk. 472), Sands v. Dixwell (cited 2 Ves. Sen. 652), Price v. Price.(1) The present case is still less favourable than [194] these, to the claim of an absolute interest in the person in whose favour the first limitation is made; for here, the first limitation is only for a term of years, and not for life. It is clear, that the testator's object, in setting apart this fund, was to secure to his daughters a provision, which should be out of the controul of their husbands; and to put such a construction on the bequest as would give them the absolute property of the money, upon attaining twenty-one or marrying, would be to destroy his avowed purpose.

Selina's interest in the charge terminated, therefore, with her life; and the Plaintiff, claiming only through her, has no title to have any further part of it raised. On this point, the proceedings in the former suit can have no influence. No question as to the extent of the interest which Mrs. Smith and Lady Morshead took in the £34,000, was raised in that suit; nor was there any determination upon it. Indeed, the children of the two ladies, who were the parties with whom that question, if raised at all, must have been discussed, were never brought before the Court; though in the course of the cause, several supplemental bills became necessary. The very frame of the present record admits, that the question has not been decided; for the Plaintiff has filed, not a supplemental bill seeking the benefit of any former order or decree, but an original bill, which places his alleged right on the foundation of the will.

[195] II. Even if Selina took a moiety of the £34,000 absolutely, she has done acts which will merge her portion of the charge in the estate. Her purpose in suffering the recoveries in 1803, was to make herself absolute owner of her moiety of the lands; an object which would not have been accomplished, if they were to continue liable to the charge. These recoveries, and the deed expressing the uses to which they were to enure, gave her the absolute beneficial ownership of the moiety of the lands; she had also the absolute ownership of a moiety of the charge; and the consequence would be, that, in a Court of Equity, (2) her moiety of the money would sink into her moiety of the estate. Duke of Chandos v. Talbot.(3)

Thomas Wood, the heir of the surviving trustee, joins at her request, in the recoveries, and parts with the legal estate, through which alone the money could be raised. If Mrs. Smith had wished merely to acquire the equitable fee, she needed not to have called the trustee into action. But she asks him to deprive himself of the power to raise any further sum out of her moiety of the lands; he complies with her request, and thus they [196] extinguish the means by which alone any further sum could have been raised. What stronger indication could there be of her intention to merge the charge? How can her appointee or administrator claim any part of this charge against her voluntary deliberate act, destroying the only means by which the charge could be made effectual.

It is said, that the recoveries are not valid, because the bargain and sale was not enrolled within due time. (4) But all the estate, except a small portion of woodlands, was in the occupation of tenants; so that the bargain and sale, though not enrolled, would operate as a grant of the reversion (Coke Litt. 309 a); and, attornment being no longer necessary, would convey a legal freehold to the tenant to the præcipe. Thus, the validity of the recoveries is unquestionable, except as to the woodlands, which were not in lease; and the legal fee of the moiety of the estate, with the exception of these woodlands, became vested in Mrs. Smith. The utmost effect of the [197] objection, therefore, would be merely this,-that there ought to be an apportionment of the charge, and that so much of the unraised part of Mrs. Smith's share of it should be raised, as will bear to the whole of the unraised part the same proportion which the woodlands bear to the whole of the estate. (5)

[198] Besides, the estate tail to be barred was an equitable estate tail; and there is no authority for the position, that, where a tenant to the præcipe for suffering an equitable recovery is made by bargain and sale, the bargain and sale must be enrolled. In a legal recovery, the instrument must be enrolled, because otherwise it does not pass the legal freehold; but the same formality is not requisite, in order to enable it to pass an equitable freehold. Feoffment, lease and release, bargain and sale, are forms of conveyance which do not, in strict propriety, apply to equitable estates; and instruments purporting to be in such forms, affect or convey equitable interests, not by virtue of these forms, nor by analogy to the mode of their legal operation, but as a declaration of the intention of the parties. "In the transfer of equitable rights, it is usual in practice to adopt the species of conveyance applicable to the assurance of the legal estate; as if a person be seised of the [199] equitable interest in fee-simple, he usually conveys it by lease and release, or bargain and sale enrolled. But this is never absolutely necessary." (Sanders on Uses and Trusts, p. 342.)" An equitable estate is, by its nature, incapable of livery of seisin, and of every form of conveyance which operates by the statute of uses. In the transfer, therefore, of equitable estates, these forms of conveyance have been dispensed with, and a mere declaration of trust in favour of another has been held sufficient to transfer

to him the equitable fee." (Cok. Litt. 290 b, Butler's note.) In spite, therefore, of the non-enrolment of the bargain and sale, the recoveries were valid, as equitable

recoveries.

In truth, however, the question is not,-Has Mrs. Smith suffered a valid recovery-but-Has she manifested an intention, that her portion of the charge should be extinguished? Where a party entitled to a charge acquires the fee of the lands, the charge is merged even without a declaration of intention, unless he does some act indicating a contrary purpose, or there exists some special reason for the continuance of the incumbrance. But even where a party entitled to a charge is only tenant in tail of the lands, a very slight manifestation of an intention that it shall cease suffices to extinguish it, Kirkham v. Smith (1 Ves. Sen. 258), Amesbury v. Brown (1 Ves. Sen. 447), Jones v. Morgan (1 Bro. C. C. 206). Here the acts done towards suffering a recovery, even if from any accident they have failed to produce their full technical effect, show plainly Mrs. Smith's purpose, that no further part of her share of the £34,000 should be raised.

It has been said, that, Mrs. Smith's moiety of the money being a charge upon the entirety of the estate, a [200] recovery suffered of her own moiety of the estate could, at the utmost, affect only that moiety of her moiety of the charge which was raisable out of her moiety of the lands. The principle of the decision in Church v. Edwards (6) supplies an answer to this objection. Where two persons are entitled to moieties of a charge, and have equal interest in the lands on which it is an incumbrance, either may say that he does not choose to have his share of the money, but prefers to have his interest in the land unburdened, and that the other, if he wishes to raise his half of the money, must take it out of his own half of the land. Their respective moieties of the money become identified with their respective moieties of the estate; and the sum, to which each is entitled, is regarded as a charge only on his own interest in the lands. He who desires to have half of the money cannot insist against the other, who wishes not for any part of it, that the sum which he himself is to receive shall be raised partly out of his own moiety of the lands, and partly out of the other's moiety.(7)

[201] Another objection is, that Mrs. Smith could not extinguish her moiety of the charge, because, in the event of her dying, and leaving no issue, Lady Morshead would have been entitled to the interest of that moiety during her life; and that it was not for Mrs. Smith's benefit that the whole charge should be extinguished, because she had a similar contingent interest in Lady Morshead's moiety. As to the question of benefit, the contingent interests of these sisters balanced each other; and it was for the convenience of both, that their respective shares of the real estates should be freed from their mutual and equal claims, or possibilities of claim. Lady Morshead is the only person who could have quarrelled with Mrs. Smith's extinguishment of her moiety of the charge; but she never quarrelled with it: she acquiesced in it, and on this record, she expresses [202] her assent to it. As both ladies had issue, they paid no regard to a possible interest depending on a contingency, which was not likely to happen, and which, in fact, did not happen.

Aug. 3. Even if the concurrence of both ladies were necessary to the extinguishment of each moiety of the charge, it is not requisite that their concurrence should be expressed by one and the same act, or by acts done at one and the same time; and Lady Morshead, though she was not a party to the recoveries suffered in 1803, has declared, by the recoveries which she afterwards suffered, as well as by the rest of her conduct, and she now declares, in her answer, and by her counsel, that it was her intention and wish, that the charge should merge.

The acts of Mrs. Smith, subsequently to the suffering of the recoveries, show, that she no longer considered the charge as subsisting. The settlement made on her first marriage contained provisions respecting her share of the £34,000; but not the least mention of it occurs in the settlement made on her marriage with Mr. Smith; and however incorrect that instrument may be, in some of its recitals, it can scarcely be supposed, that a charge so considerable in its amount, as this £34,000, and to which the attention of the parties had been so frequently drawn, could have been overlooked, if it had been regarded as still in existence. When comparatively small sums were enumerated, was it likely that this charge should have passed unnoticed? The deed, too, though it deals with the rents of Mrs. Smith's moiety of the lands, makes no allusion to any charge as subsisting upon them.

It has been contended, that the charge was virtually severed from the inheritance by the decree in 1771, [203] from which time it was to be considered as raised in equity. That decree was of course. But when such a decree is made in an infant's suit, and the infant afterwards comes of age, it is far from being necessary, that the charge, to which he is entitled, shall be raised out of his own estate. On the contrary, the slightest expression of intention on his part will prevent it from being raised.

August 3. The Master of the Rolls [Lord Gifford]. At the hearing of this cause two questions were discussed; first, what interest did Mrs. Smith take under her father's will, in the moiety of the £34,000 which he directed to be raised? Secondly, if she took a quasi estate tail, in the moiety of that sum, and acquired by consequence an absolute interest in it, what has been the effect of her acts? Has she not dealt with the money, and with the estate, upon which it was charged, in such a way, as to prevent any further sum from being raised after her death.

The former question has not been concluded by any thing which took place in the suit instituted in 1771. Whatever be the rights of the parties under the will of the testator, the decree of the 16th July 1771, was the only one, which, in the then state of circumstances, could have been pronounced. As the will had directed £34,000 to be raised, first out of the personal estate, and if the personalty was insufficient, then out of the real estate, with a view to provide maintenance for Selina Frederick and Elizabeth Frederick, during their minorities, and an independent anuual income for them during their coverture, the Court ordered the money to be raised, but made no declaration with respect to the rights of either of the ladies in the fund.

[204] It is true, that, in 1815 and 1817, orders were made in the cause, which proceeded on the supposition that Lady Morshead and Mrs. Smith had an absolute interest in the fund which had been raised. The first of these orders was made on the petition of Lady Morshead, and bears date on the 15th of June 1815. After stating, from the petition, the will of Sir Thomas Frederick, the marriages of the daughters, the proceedings in the suit, the amount of the funds which were applicable towards the raising of the £34,000, and the deaths of various parties, and particularly of her husband, it recited, that she had suffered a recovery of her moiety of Sir Thomas Frederick's real estates remaining unsold, and that she was advised that she was, under the limitations in her father's will, entitled absolutely to a moiety of the £34,000, or of so much of it as had been raised, and that she might release her moiety of the real estate remaining unsold from being liable to contribute to the raising of any further part of such sum. It then directed, counsel appearing for the other parties and consenting, that a moiety of £18,491, 6s. 1d. Bank 3 per cent. annuities, standing to the account of the real estates of Sir Thomas Frederick, with any interest which in the mean time should arise thereon, should be transferred to Lady Morshead; and the Court further declared, that she was entitled absolutely to the sum of £7998, 15s. 5d. which had been produced by the sale of a moiety of the £11,885, 14s. 2d. Bank stock. This was followed, in July 1815, by a petition of Mrs. Smith, in which she stated, in the same manner, the recovery suffered by her, and her rights in the real estates and in the other funds which have been mentioned; and upon that petition a similar order was made, directing the remaining moiety of the £18,491, 6s. la. 3 per cent. stock to be transferred to her, and declaring that she was entitled absolutely to the sum invested in a mortgage of her estate, [205] which had been produced by the other half of the Bank stock. Mrs. Smith's petition, I should notice, stated, that, on her marriage with Mr. Smith, no settlement or agreement for a settlement was made, by which her right or interest in the funds in question, in this cause, could be in any manner affected. This recital was not strictly and literally correct; for her marriage-settlement contained an inaccurate reference to the sums to which the petition related; yet it was correct in substance, since the settlement preserved to Mrs. Smith her rights over the funds, and excluded Mr. Smith from any interest in them.

Now, though these orders unquestionably proceeded on the notion that Lady Morshead and Mrs. Smith had an absolute interest in the £34,000, yet it must be remembered that they passed by consent, and do not appear to have undergone any discussion. Even if there had been discussion, it would not have bound these Defendants; for the issue of the two ladies, who were the persons interested in the question, were not before the Court. Moreover, the present bill is not, in its form,

a record framed for the purpose of carrying into effect the decree of 1771, and the other proceedings in that suit. It is an original bill, which states the former proceedings only as circumstances in the Plaintiff's title.

For these reasons I am of opinion, that the question as to the rights of Lady Morshead and Mrs. Smith in the £34,000 has not been concluded by the orders made in the former suit, nor by any thing which passed in it; and it therefore becomes important to look accurately at the frame of Sir Thomas Frederick's will, in order to determine whether the ladies acquired an absolute interest in that sum ; that is, whether, under the limitations in their father's will, they took a quasi estatetail in the £34,000, as they took an absolute estate-tail in the real estate.

[206] The principal object of the testator, in the disposition which he has made, with respect to the £34,000, was, to secure to his daughters throughout their lives a provision exempt from the controul of any husbands with whom they might happen to intermarry. The trustees, who are to receive the £34,000, are directed to pay £1000 a-year to Mrs. Bathurst for the maintenance of the daughters during their minority. Upon each daughter's attaining twenty-one, or marrying, they are to pay her a moiety of the interest for ninety-nine years, if she so long lives, to be paid, in the event of her marriage, to her as a separate and distinct provision, and not to her husband. In case either of the daughters die, leaving no child, or issue of a child, the whole of the interest is to be paid to the survivor for ninety-nine years, if she shall so long live. If both daughters die, leaving no lawful issue, there is a bequest of part of the principal, and of the interest of the residue of the fund, to Mrs. Bathurst, for the remainder of the term of ninety-nine years, if she shall so long live : and, subject to these gifts and contingencies, he bequeaths the £34,000, or what shall remain of it, to his trustees, upon trust, to pay the same, after the decease of his two daughters respectively, in moieties, or in whole, as the case might be, unto such person or persons as should be entitled, under the uses and limitations thereinafter mentioned, to the rest, residue, and remainder of his estate, real and personal, and upon the like uses and limitations. It cannot be disputed that, under the subsequent disposition, the daughters take estates-tail in the residue; and the argument is, that, under this limitation, they take likewise estates-tail in the £34,000.

If such be the effect of the will, it completely destroys the intention which the testator had of securing to these ladies, during their lives, the interest of the £34,000, to be enjoyed separate and apart from their husbands. [207] For if they took quasi estates-tail in this sum, it became theirs absolutely it would pass to any person whom they might marry, if no settlement were made; and, at their death, it would go to their personal representatives.

:

It was argued, that, where there is a devise of real estate by limitations which give the devisee an estate-tail, and there is in the same will a bequest of personal estate to the same person, with a direction that the personalty shall go in the same manner with the real estate, it necessarily follows, that the party who takes an estate-tail in the real property takes a quasi estate-tail, and consequently an absolute interest, in the personalty; and the doctrine laid down in Britton v. Twining (3 Mer. 176), and other cases of that kind, was relied upon. But here the limitations of the £34,000 are not made to depend on the limitations of the real estate, except after the death of Elizabeth and Selina Frederick: for there is an express disposition of the money to them during ninety-nine years, if they so long live (and the circumstance that the previous gift is for a term of years, might have an important effect in considering the operation of the subsequent reference to the devise of the residue); and it is not till after the death of Elizabeth and Selina, that he directs the money to go to such person or persons, as, under the after-mentioned uses and limitations, should be entitled to the residue of his real and personal estates. Therefore, to make the words of reference to the limitations of the real estate operate so as to give the daughters a quasi estate-tail in the £34,000 would completely destroy the previous bequests of the will, framed with so much care and caution to secure to them the annual income of that fund during their lives.

[208] Then, if the true construction be, that these ladies took, in the £34,000, an interest, limited by the duration of their own lives, and that the words of reference to the limitations of the real estate are a contingent bequest, it will be impossible for Mr. Smith to sustain his claim; and it may even become matter of doubt, whether all that was done in the former suit was done correctly.