But though the strong inclination of my opinion be, that these ladies took only a life-interest in the fund, I do not think it necessary to decide the cause on that ground; for, on the other parts of the case, it appears to me, that the demand of this Plaintiff cannot be sustained.

Assuming, then, for the present purpose, that Elizabeth and Selina took absolute interests in the £34,000, we are next to consider the effect of the acts done by Mrs. Smith, when sui juris, in putting an end to the charge on the real estate, as to her moiety. In 1803 the personal estate of Sir Thomas Frederick had been exhausted, so that at that time the charge was clearly a charge only on the real estate; and Mrs. Smith is, therefore, to be considered as having then been tenant in tail of a moiety of the devised lands and hereditaments, with a subsisting charge on them in her own favour, subject only to the contingency of her dying, leaving no issue. When a tenant in tail pays off an existing charge, he is not considered a creditor on the estate; because he may at any time make himself the absolute owner of the inheritance he may keep the charge alive, but he must do some act denoting such to be his intention. As Mrs. Smith was absolutely the owner of the money to be raised, subject to one contingency, and at the same time tenant in tail of the estate on which it was charged, she might elect, whether the charge should [209] continue, or not, for her own benefit; and any act showing her intention that the charge should not so continue, would be sufficient for that purpose.

Now, what is the act which she executes in 1803 In Hilary term in that year she suffers recoveries of her moiety of the devised estate; and, in order to make a tenant to the præcipe, and declare the uses of these recoveries, she and Thomas Wood, the heir of the surviving trustee, execute a deed of bargain and sale, dated the 7th of February 1803, by which, after reciting her father's will, and the decree of 1771, it is witnessed, that, for barring all estates-tail, and all remainders and reversions thereupon depending, of and in the moiety of the hereditaments thereinafter mentioned, and for vesting the inheritance in fee simple thereof in the said Selina Thistlethwayte, she and Wood convey her moiety of the estates to Peter Still and his heirs, to make him tenant of the freehold, to the intent that recoveries may be suffered, which are to enure to the use of Selina Thistlethwayte in fee. Now, the object of this transaction being to make herself absolute owner of the estate, and there being no clause in the deed keeping the charge alive for her benefit, I apprehend, that, if there were no specialties in the case, and if the recovery had been well suffered, the effect would be, to extinguish her charge.

But, first, it is said, that the deed of 1803 was not enrolled within six lunar months from the date, and therefore was not effectual to vest the freehold in the tenant to the præcipe. Even with respect to the legal estate, the omission to enrol the deed within due time would affect only the woodlands which were in hand, and not the lands which were on lease; for, with respect to the latter, it would operate as a grant of the rever-[210]-sion, and, attornment not being necessary, would pass the reversion of them to the tenant to the præcipe.

Α

Besides, Mr. Thistlethwayte herself joins as a conveying party in this deed, and she grants" all her estate, right, title, and interest, legal and equitable." Such an instrument, executed by a person having an equitable interest in lands, would pass that equitable interest to the grantee; and it is an ancient and well known rule of law, that deeds made for one purpose, though ineffectual for that purpose, may operate in another way, ut res magis valeat. (Sheppard's Touchstone, 79.) deed that is intended and made to one purpose may enure to another; for if it will not take effect the way it is intended, it may take effect another way; and, therefore, a deed made and intended for a release may amount to a grant of a reversion, an attornment, or a surrender, or e converso."—" If a man, says Lord Coke (Co. Litt. 49), " be seised of two acres in fee, and letteth one of them for years, and, intending to pass both by feoffment, maketh a charter of feoffment, and maketh livery on the acre in possession, in name of both, only the acre in possession passeth by the livery; yet if the lessee attorne, the reversion of that acre shall pass by the deed of attornement." It therefore appears to me, that the bargain and sale, considered merely as a grant of Mrs. Thistlethwayte's equitable interest, would be effectual for the purpose of sustaining the recovery, and in that view would extinguish the charge.

It was next argued, that the recovery, even if valid, would be ineffectual to

extinguish the charge of £34,000 with respect to Lady Morshead's moiety of the premises; and that the utmost operation of it could be only [211] to extinguish Mrs. Thistlethwayte's moiety of the charge, so far as it affected Mrs. Thistlethwayte's moiety of the land. This Court, however, would never permit Mrs. Thistlethwayte to make good any part of the charge against Lady Morshead's moiety of the premises, any more than it would permit Lady Morshead to raise any part of it out of her sister's share. Church v. Edwards. (8) The bargain and sale, therefore, and the recoveries, are a clear demonstration of Mrs. Thistlethwayte's intention that this charge should not be kept on foot, so far as regarded her moiety. Her purpose was, to make herself complete owner of her share of the premises. It was competent to her to relinquish the charge; and she has, by this transaction, relinquished it effectually.

We are next told to look at the settlement executed on this lady's marriage in 1812. We there find mention made of certain funds in Court, and of her supposed life-interest in the moiety of certain estates; but there is no reference to the charge of £34,000, nor is it possible to collect from that instrument any intention to keep the charge alive.

Lastly, it is said, that an intention to keep the charge alive is shown by the orders made in 1815. I confess that, on my mind, they make a directly opposite impression. It is certainly true, that, in the petitions, on which the orders were obtained, Mrs. Smith and her sister conceive themselves to be entitled absolutely to the £34,000, when it should be raised, and, in the mean time, to be the absolute owners of so much of it as consisted of the fund in Court, and of the money which had been laid out on mortgages. But they also set out the recoveries [212] which they have respectively suffered, in order to show, that they are complete owners, each of her own moiety of the real estates; and they recite, that they were advised that they might release their respective moieties of the real estate of their father remaining unsold, from being liable to contribute towards the raising of any further part of the £34,000. During the whole of their lives they take no steps to cause the residue of the fund to be raised; nor is any attempt made by either of these ladies to carry the decree of 1771 into further effect, by calling on the Court to proceed to fresh sales of the lands, in order that the whole of the £34,000 might be raised, and subjected to their absolute disposition.

That Mrs. Smith made herself, in equity at least, complete owner of the inheritance, cannot be doubted. Being complete owner in fee simple of the lands, she has not shown any intention to preserve, distinct from the inheritance, the charge, in which it is assumed that she has a quasi estate-tail. Therefore, that charge was extinguished; and neither, as her appointee nor as her personal representative, can Mr. Smith claim to have any further part of the £34,000 raised.

Bill dismissed with costs.

(1) Cited 2 Ves. Sen. 234. In Price v. Price, the husband, on his marriage, conveyed a leasehold to trustees to the separate use of his intended wife; after her decease, to the use of the heirs of her body by the husband to be begotten; and for want of such issue, to the use of the husband and his heirs. The wife died, leaving an only son. Sir Joseph Jekyl held, that the term vested in the heirs of the body of the wife, as purchasers. But Lord Hardwick, in his judgment in Theebridge v. Kilburn (2 Ves. Sen. 237), remarks on this case-“ Price v. Price was on marriage, in which there could be no doubt, if it had been freehold estates, but the Court would construe heirs of the body to be first and every other son."

(2) " Where a person is absolutely entitled to a sum of money charged upon an estate, and afterwards becomes entitled to the fee simple of the estate, the Court of Chancery in most cases consolidates the rights by extinguishing the equitable lien. The rule, however, has two exceptions; the first in favour of creditors, and the second in favour of infancy, where the person, becoming entitled to the charge and the estate, dies during his minority, having by will disposed of the charge." Sanders on Uses and Trusts, vol. i. p. 305.

(3) In the Duke of Chandos v. Talbot, Lewis Doleman, who was entitled to a sum of money charged on lands, became also tenant in tail of the lands so charged. It was contended, that the charge merged. Lord Chancellor King decided, that there was no merger; but said, “ Indeed, had there been a mere equitable charge upon the

lands, and a fee simple, not an estate tail only, had come to Louis Doleman, it might then have been a merger." 2 P. Wms. 604.

(4) By the Statute of Enrollments, 27 Hen. VIII. c. 16, it is enacted, That no manors, lands, tenements, or other hereditaments shall pass, alter, or change from one to another, whereby any estate of freehold or inheritance shall be made or take effect in any person or persons, or any uses thereof to be made by reason only of any bargain and sale thereof, except the said bargain and sale be made by writing indented, sealed and enrolled in one of the King's Courts of Record at Westminster, &c.; and the same enrollment to be had and made within six months next after the date of the said writings indented," &c.

By the 4th Ann. c. 16, § 9, it is enacted, "That all grants and conveyances hereafter to be made, by fine or otherwise, of any manors or rents, or of the reversion or remainder of any messuages or lands, shall be good and effectual, without any attornment of the tenants, &c., as if their attornment had been had and made." See on the construction of these statutes, as to the operation of a bargain and sale, not enrolled, in passing a reversion, Sanders on Uses and Trusts, vol. ii. p. 39. Gilbert on Uses and Trusts, note, p. 226, Mr. Sugden's edition. Fearne's Posthumous Works, 24-31.

(5) In Seys v. Price, and Price v. Seys (Barnard. 117; 9 Mod. 217), Elizabeth Seys was entitled to a bond debt of £100 absolutely, and to a legacy of £3000, both payable when she attained twenty-one, charged upon lands of which Richard Seys was tenant in tail under a devise. Richard Seys suffered a recovery; but, by a mistake in the description of the premises, lands of the value of £100 a year (about a tenth part of the whole estate), were not included in it. Afterwards Richard and Elizabeth intermarried, during the infancy of the latter; and, by articles of agreement made previous to the marriage, he, in consideration of the marriage and of her portion, consisting of the two sums of £3000 and £100, covenanted to settle a jointure on her of one-third part of the estate. Afterwards Richard died, having devised the whole of the estate to his wife for life, and appointed her his executrix. She then claimed to be entitled, either in her own right, or as executrix of her husband, to have the sum of £3000 and £100 raised out of his real estates.

Lord Hardwicke decided, that she was not entitled to have the charges raised in her own right; and with respect to her claim as executrix of him who was both owner of the estate and purchaser by the marriage-articles of the charges, he said, "I do not know any case, where, a person being of full age and absolute owner of an estate in fee, and also of a charge upon that estate, the charge has been kept in him distinct from the estate, and, after his death, raised out of it for an executor to the prejudice of an heir. For, in the case of an heres factus, and an executor, which often happens, the general rule is in favour of the heir, for the benefit of the real estate, to prevent charges being brought upon it. This money could not be raised in Richard's lifetime, for he was owner both of the estate and of the charge on it."

66

As to the £100 per annum fee tail lands, of which no recovery was suffered by Richard, a proportionable share of the £3000 and £100 must be raised out of them in the hands of the remainder-man, for the benefit of Richard's executors: for, it cannot be presumed that Richard intended it to sink for the remainder-man, who is a stranger, and claims not under Richard, but per formam doni.”

The decree was, that Richard was, by virtue of the marriage-articles, a purchaser of the legacy and bond debt; and that, having suffered a recovery before his marriage of the greatest part of the devised estate, no more of the legacy and bond-debt should be raised, than was proportionable to the value of that part of the estate to which the recovery did not extend.-From MS. Notes in the possession, formerly of Lord Colchester, and now of Mr. Abbott.

(6) 2 Bro. C. C. 180. In Church v. Edwards an estate tail descended to two daughters, as the heirs of the body of their mother, and the reversion in fee also descended to them as the heirs of her brohter. One of the daughters levied a fine; and it was held, that, by the fine and the deeds leading the uses of it, she acquired a fee simple in a moiety of the premises, and not merely in a moiety of that moiety in which she had the estate tail.

Mr. Preston remarks, that, in Church v. Edwards, the daughters being coparceners, had only one estate tail and one reversion in fee; and he seems to think

the decision turned upon that peculiarity. Preston's Treatise on Conveyancing, vol. iii. p. 95.

(7) În Stephens v. Bateman (1 Bro. C. C. 22), the reversion in fee of certain lands descended to Mrs. Stephens and Mrs. Hanbury, expectant on the life-estate of their mother; and they were also entitled to a sum of £12,000, raisable out of the same lands after their mother's death, and secured by a term of years. Mrs. Stephens levied a fine, and settled her moiety of the lands; and the ultimate limitation of the fee was afterwards varied by a deed, in which Mrs. Hanbury concurred. Lord Thurlow was of opinion, that Mrs. Stephens could not call upon the trustees of the term to raise her £6000: "Either considering this as a merger," said his Lordship, or without taking the doctrine of merger into consideration, it appears to me that it is impossible to set up a term against such a conveyance. This money would not have gone to executors or administrators, which shows that it substantially unites with the lands." 2 Bro. C. C. 20.

Mr. Sanders (Essay on Uses and Trusts, 4th edit. p. 309) mentions a case, in which a sum of money, raisable under the trusts of a term of years, was to become vested, at the age of twenty-one or marriage, in two daughters, upon whom the fee simple of the lands descended, and of whom one married under twenty-one, and the other, after attaining that age. There Mr. Fearne was of opinion, "that, after the descent, each daughter might be considered as entitled to one moiety of the lands, and to a charge of one moiety of her portion out of the other moiety of the lands; and, although as such charges were equal and reciprocal, they may be said to have countervailed and discharged each other, yet, considering that such a conclusion would be in prejudice to the rights of third persons, viz. their husbands, who would have been entitled to such portions, it was not to be relied on."

(8) 2 Bro. C. C. 180. A most elaborate commentary on the principle of Church v. Edwards will be found in Mr. Preston's Treatise on Conveyancing, vol. iii. p. 90.

[213] BULL v. PRITCHARD. Rolls. Nov. 22, 1825; July 11, 1826. [See Davies v. Fisher, 1842, 5 Beav. 210; Abbiss v. Burney, 1881. 17 Ch. D. 221. See also Wills Act, 1837 (7 Wm. 4 & 1 Vict. c. 26).]

A testator bequeathed personal property to his trustees and executors, upon trust, to pay the dividends to his daughter, during her life, to her separate use, and, after her decease, to pay the principal unto all and every her children who should live to attain twenty-three years of age, share and share alike, with benefit of survivorship, in case any of them died under that age; with limitations over, in case there should be no such child or children, or, being such, all of them should die under twenty-three, without lawful issue. The daughter had a child, who died under age in the daughter's life-time.-The bequests to the children, and the subsequent limitations, were too remote.

Thomas Evans, by his will, dated the 29th of May 1809, devised all his freehold estates to John Millsom, Samuel Pritchard, and John Gumbrell, and to the survivors and survivor of them, and the heirs and assigns of such survivor, upon trust, to pay the rents and profits to his daughter Mary Bull, during her life for her separate use; “and, from and after the decease of my said daughter, then I do hereby order, direct, limit, and appoint, that my said trustees or the survivor of them, or the heirs or assigns of such survivor do, by good and sufficient conveyance and assurance in the law, convey and assure my freehold estates unto, and equally between and among all and every the child and children of my said daughter Mary Bull, who shall live to attain the age of twenty-three years, and to his, her, and their heirs and assigns for ever as tenants in common, and not as joint tenants; and if there shall be but one such child, then to such only child, his or her heirs or assigns for ever: and in case there shall be no such child or children, or, being such, all of them shall die under the said age of twenty-three years, without lawful issue, then upon trust, that my said trustees or the survivors or survivor of them, or the heirs or assigns of such survivor, do, by such like good and sufficient conveyance and assurance in the law, convey and assure my said freehold estates unto, and equally between and amongst all and every my brother and sisters, namely, John Evans, Mary Spendlove, Elizabeth, the wife of

John William Nevett, and Martha, the wife of the said John Millsom, and to his, her, [214] and their respective heirs and assigns for ever, as tenants in common. Then, after bequeathing a leasehold specifically, the testator gave all the residue of his estate and effects to his executors, upon trust, to invest it in the public funds, and pay the dividends to his daughter, Mary Bull, during her life, for her separate use, and from and after the decease of my said daughter, upon this further trust, to pay, assign or transfer all and singular the rest, residue and remainder of my said estate and effects, or the stock or funds in which the same shall or may have been laid out, unto and equally between and amongst all and every the child and children of my said daughter lawfully begotten, or to be begotten, who shall live to attain the age of twenty-three years, share and share alike, with benefit of survivorship, in case of the death of any or either of them under the age of twenty-three years, as tenants in common, and not as joint tenants and in case there shall be but one child, then upon trust to pay, assign or transfer the same unto such only child, his or her executors and administrators; and in case there shall be no such child or children, or, being such, all of them shall die under the age of twenty-three years, without lawful issue, then upon trust to pay, assign, or transfer the same unto and equally between and amongst my said brother, John Evans, and my three sisters, Mary Spendlove, Elizabeth, the wife of John William Nevett, and Martha, the wife of the said John Millsom, share and share alike, as tenants in common.' The three trustees were also appointed executors, " with power to lay out and apply the interest of such child's respective share, or so much thereof as they might deem necessary towards their maintenance, education, and bringing up, notwithstanding such child's share should not be then absolutely vested."

[215] The testator died in January 1817. Mrs. Bull, who was his only child, had at that time one daughter, who was then about fifteen years of age, and died in November 1820, without issue. Mrs. Bull had no other children. A considerable part of the testator's property consisted of leaseholds for years.

The bill was filed by Mr. and Mrs. Bull, against the surviving executor, and the persons who claimed under the ultimate bequests and devises; praying, that the limitations and trusts, created and declared by the will concerning the freeholds, leaseholds, and residuary personal estate of the testator, might be declared to be void for remoteness.

It was objected, that the plaintiffs, even if right in their claim, were premature in calling for such a declaration, while Mrs. Bull's life estate continued. The answer to this was, that, if the limitations were valid, it would be the duty of the executor to convert the leaseholds into money, in order that the tenant for life and those in remainder might enjoy the property according to their several rights; and that it was therefore necessary to decide the question now, in order that the parties might know, in what manner the leaseholds were to be dealt with at present.

Mr. Shadwell and Mr. Lovat for the Plaintiffs. The first bequest, after the gift of a life interest to Mrs. Bull, is, to all her children, who shall attain twenty-three years of age. Nothing vests in them, till they attain that age; and, as that event might not happen till more than twenty-one years after a life in being, the gift to the class is too remote. No distinction can be made in favour of the child who was in existence at [216] the testator's death, nor of the children who may attain the age of twenty-three, during Mrs. Bull's life, or within twenty-one years afterwards. For the bequest is a general bequest to a class; the rule of law prevents it from operating in favour of the whole class; and the Court cannot split it into bequests to individuals, or to some of the class. Leake v. Robinson (2 Mer. 388). The gift fails in toto.

The limitation in favour of the testator's brother and sisters, is only " in case there shall be no such child or children, or being such, all of them shall die under twentythree." Such child or children cannot mean children attaining twenty-three; for, from the words immediately following, it is evident, that children dying under twenty-three, are included under the description, "such child or children. That phrase must denote" children of Mrs. Bull," absolutely; and therefore, as she had a child, the first branch of the alternative can never happen. The other event is, in case all such children shall die without issue, under twenty-three"; and as that is an event which might not happen, till more than twenty-one years after a life in being, the limitations, which depend upon it, are too remote. Mrs. Bull,

44