ROLLS COURT. partly legal and partly equitable, shall be an estate of inheritance in possession, or equal to an estate of inheritance in possession (other than an estate in joint tenancy), then his widow shall be entitled in equity to dower out of the same land." If this clause stood alone, the dower to the wife would have been clear; there the husband was beneficially entitled to land for an estate which was equal to an estate of inheritance in possession under the ordinary limitations to bar dower. The 6th section is to this effect:-It is enacted, "that a widow shall not be entitled to dower out of any land of her husband, when in the deed by which such land was conveyed to him, or by any deed exeented by him, it shall be declared that his widow shall not be entitled to dower out of such land." From this appeal to the deed it is evident that this clause settles the matter against the widow, because the deed in question contains this express declaration, that the widow shall not be entitled to dower out of such lands. It is contended, however, that these words in this section are prospective, and relate only to deeds which shall be executed after the passing of this Act. The clause is certainly ambiguous; it speaks of "when in the deed by which such land was conveyed to him"that does not appear to be prospective, but appears to relate to every species of deed; "or by any deed executed by him"-that may mean which had been or hereafter may be executed by him; "it shall be declared "that is, that the deed shall declare. I do not think it absolutely necessary to determine whether the clause is prospective or not, in the view I take of this case; but it is clear that the section is ambiguonsly worded, and that the clause by itself might be applied to existing deeds as well as to deeds which were thereafter to be executed. It was also argued that, as the 2nd section is retrospective, it is reasonable enough that the 6th section should be retrospective also; because, though it affects only the case of women who were married subsequently to the passing of the Act, yet it affects deeds conveying property to husbands who have married these women subsequently to the passing of the Act, and, therefore, has a retrospective effect on those deeds. The effect of this section, however, cannot be fully understood without reading the 14th section, which is the section on the construction of which this case principally turns. The 14th section is to this effect: "that this Act shall net extend to the dower of any widow who shall have been or shall be married on or before the 1st Jan. 1834, and shall not give to any will, deed, contract, engagement, or charge executed, entered into, or created before the said 1st Jan. 1834, the effect of defeating or prejudicing any right to dower." This section is by no means expressed with clearness, and the argument against the widow is, that the whole intention of this 14th section cannot be to give a right to dower not previously existing, and that the effect of the section must be taken to be, in a broad common sense view, to leave existing rights as they were; and, on the other hand, it is contended that the construction proposed to be put on the 6th section, viz., attributing to it an exclusive prospective operation, would lead to great absurdities and contradictions. Now, the consideration I have given to the statute leads me, on the whole, to the conclusion that, in the present case, the widow is entitled to dower out of this land. The 2nd section, standing alone, clearly gives it, and I do not find anything to cut it down. As I have said before, if the deed of conveyance had omitted the declaration I have read, "to the intent that the present or any future wife should be entitled to dower," it is obvious that the statute would have had a retrospective effect, and would have given the wife the right to her dower. In my opinion, this declaration gives no additional force to the deed. If the deed had contained that declaration alone, without a sufficient limitation to uses to bar dower, it is obvious that the dower would have attached, totally independent of the late statute, and that the 14th section would have prevented the 6th section from applying to deprive the widow of dower, which she would have been entitled to but for the Act. The statute, therefore, appears to me to be very much of this effect: the second section gives dower to the wife in every case where the husband of the wife, marrying subsequently to the 1st Jan. 1854, had an estate equal to an estate of inheritance; but then the 6th section says, that the wife's dower is to be taken away, wherever there is a declaration the intention of which is to take it away; then, this section leaving it doubtful whether that is to be prospective or retrospective also, the 14th section says, that this Act shall not in any respect have any effect to take away dower where dower already existed. Now, I have read these sections very much as if they were three Acts of Parliament, instead of three clauses of one Act: the first section gives the dower; the second would take it away; but the third says that it is not intended to have any operation at all in taking away dower, if, independently of that section, the widow is entitled to her dower. Independently of that section, she appears to me to be entitled to her dower, and I am of opinion that the 14th section prevents the 6th section from having any operation or effect on this deed. *Undoubtedly, in considering this question, we cannot The trustees of his will permitted the tenant for life to enter upon and manage the property at discretion, never requiring any accounts of the management. The widow from time to time paid the interest on the incumbrances, and also on the legacies as they respectively fell due; and, with the consent of the trustees, considerably improved the said tenements by converting them into comfortable habitations for the poorer class of cottagers. The trustees subsequently sold to her the entire property by private contract, and allowed her to deduct from the purchase-money the moneys she had paid for the interest and improvements. The certificate was signed by the judge before the four clear days allowed by the 49th Ord., 16th Oct. 1852 (this turned out to have been done accidentally). The parties therefore agreed that, when the cause should come on upon further directions, the chief clerk's certificate should be treated as if it never had been signed, and that any objections thereto might be then raised. but be struck with the singularity of the motive which it is necessary to impute to the Legislature in thus framing this Act. I was myself a member of the Legislature at the time this Act passed, and I took some part in the discussion of the real property statutes which were then passed; but it is impossible for me to recollect what motive actuated the minds of those persons who thought this was a desirable Act to pass as it stands; but, it would seem that the Legislature thought that the expression of an intention to bar dower, by making limitations to uses to bar dower, ought not to prevail, but that, if words were introduced simply having the effect of a declaration that the widow should not have dower, that mode of ex- This suit was instituted for the administration of pressing the intention ought to have that effect: and the testator's estate; and upon taking the account it is somewhat difficult to understand, where the in- the chief clerk disallowed these deductions, and tention is clear, why the Legislature should have pre-certified that the trustees were bound to make them ferred one mode of expressing that intention to good to the testator's estate. another, having directed, in all cases of deeds which should have already expressed that intention, that as far as related to women who were married subsequently to the 1st Jan. 1834, that expression of intention should not prevail. It certainly appears somewhat capricious; but I can only construe the Act as I find it. It appears pretty clearly that the real property commission, with whom this statute originated, had an intention of putting an end to the right to dower altogether, but that they found it was difficult or impossible really to do that, and submitted to this compromise. That may probably explain some of the difficulties which I have felt, and which have delayed me some time in arriving at the conclusion I have done, and which, I cannot deny, does attribute some species of inconsistency to the intentions of the Legislature, with respect to the mode in which they have framed the provisions of this Act. However the result of my opinion is what I have already stated; and with regard to this question, which, I presume, was never contemplated by the Act, my opinion of the effect of it is, that the widow is not barred of her dower, and shall therefore make declaration to that effect. July 10.-Follett asked for the costs of the suit. The widow comes as a legatee-she has no right to go against the legal estate for her dower under this Act. Palmer and Stevens.-Costs were formerly given where the right to dower was disputed: (Banford v. Banford, 5 Hare, 203.) No costs were given under the old practice, unless a vexatious defence was raised. It is still a legal right, for the husband had a legal estate. July 11.-The MASTER of the ROLLS.-I have looked into the question as regards costs, and I am of opinion that this is a case in which the costs ought to be allowed to the plaintiff. This is not, in fact, one of the cases in which, upon an undisputed right, the plaintiff comes merely for the purpose of having partition, or the amount set out by metes and bounds; but it is, in truth, a disputed right to dower, resisted upon grounds which fail; grounds, I admit, upon which, in my opinion, anybody would have advised the defendant to contest the right, for it is a question of considerable nicety. I adopt the observation which Lord Cottenham frequently made in these cases, that the mere fact of a case being one of difficulty, unless the difficulty is created by a testator, and his estate can be made to pay for it, is not a sufficient ground for saying that the person who is in the right shall not be allowed to have what he claims, together with the costs to which he has been subjected in obtaining it. I must say that the conduct of the defendant appears to me to have been as correct and as proper as it was possible to be; but, viewing the case in the most favourable manner for the defendant, still I am of opinion that the plaintiff is entitled to her costs. V. C. KINDERSLEY'S COURT. Reported by P. M. LEONARD and H. R. YOUNG, Esqrs., Barristers-at-Law. Wednesday, June 6. DICKINSON . PEACOCK. Trustees-Tenant for life-Interest on incumbrance Improvements. A tenant for life entered into possession with the consent of the trustees and paid interest on incumbrances affecting the property, and expended money on improvements; she afterwards purchased the property from the trustees, who, without requiring an account of the rents and property of the estate, allowed her to deduct from her purchase-money the amount expended in payment of the interest and improvements: Held, that those sums ought not to have been allowed. This cause came on upon further directions, and also for the opinion of the court on the chief clerk's certificate. This last part of the case was, by an arrangement between the parties, treated as an adjourned summons. The facts are as follows:-Mr. Dickinson (the testator in the cause) died leaving a widow, to whom he devised a life-interest in certain premises, subject to certain incumbrances, and charged with the payment of some legacies. On these premises were some small tenements described as weavers' shops. The chief clerk had been directed to inquire and certify how the sum admitted to have been the purchase-money agreed on had been applied, and under what circumstances any part of it had been allowed to the purchaser., The chief clerk's certificate was to the effect, that, the tenant for life had been allowed to retain the moneys expended by her in keeping down the interest on the incumbrances and in improvements, and that such allowance ought not to have been made by the trustees as vendors. Baily, Q.C. and Busk, in support of the objections. Glasse, Q.C. and W. E. Lewis, in support of the certificate, cited the following cases :-Hibbert v. Cooke, 1 Sim, and St. 552; Caldecott v. Brown, 2 Hare, 144; Horlock v. Smith, 17 Beav. 572. The VICE-CHANCELLOR.-The question raised upon this certificate is, whether the sums which the trustees allowed the tenant for life to retain as part of the purchase-money ought to have been so allowed or not? The reference was to inquire how the purchase-money had been applied, and whether any portion of it had been allowed to be retained by the purchaser; and if so, under what circumstances? The chief clerk has certified to the effect, that the tenant for life had been allowed to retain certain sums expended by her in keeping down the interest on the incumbrances and in improvements, and that such allowance ought not to have been made by the trustees. The defendants objeet to this disallowance, and contend that in giving this opinion the chief clerk was going beyond his reference; but as he had been directed to inquire under what circumstances any portion of the purchase-money had been allowed to be retained, I cannot say that he has gone beyond his duty, and his certificate has substantially raised a question proper to be dealt with on further directions; on that point therefore the certificate is not open to objection. But, according to the strict practice of this court, a certain number of days ought to elapse after the certificate has received the judge's approval, in order to enable either party to complain of it, and to bring it on before the judge in person; and then, if either party is dissatisfied with his judgment thereon, they can apply to the Court of Appeal; but, as all the parties have agreed to waive this technical difficulty, the decree must be prefaced accordingly. Two other questions remain to be disposed of on further directions-First, are the moneys paid by the tenant for life as interest from the death of the testator to the date of the purchase to be allowed? As to this question, the first point is not whether a tenant for life is or is not bound to keep down incumbrances on the property, whether or not the income is sufficient for that purpose; but, whether the onus does not lie on the trustees of showing that such income was insufficient for such purpose? And I am of opinion that it does. In this case the trustees do not appear to have taken the trouble of ascertaining whether or not it was sufficient. They allowed Mrs. Dickinson the interest, but they did not call on her to account for the income which they were bound to do when making such allowance. Suppose even that the income was not sufficient for that purpose, still a tenant for life can only enter into possession on the If the terms of keeping down the interest. trustees themselves had remained in possession the case would have been different, for they might have charged on the corpus the sums paid by them in keeping down the incumbrances; but it is not so with a tenant for life let into possession by them under the above circumstances. I am therefore of opinion that the sums paid for interest must be disallowed. The second question is as to the moneys expended by the tenant for life on permanent improvements. As to these, the evidence is so unsatisfactory, that even a mortgagee in possession would not be allowed them; much less can a tenant for life entering into possession with such consent as aforesaid, and expending moneys on such improvements as are here alleged to have been made. If any question V.Q. KINDERSLEY'S COURT. ought to be raised it is this, how far the saleable value of the property was increased by such expenditure? but the evidence as to that is also so unsatisfactory, that I am of opinion she is not entitled to have them out of the corpus. The chief clerk therefore was right in disallowing these also. V.C. KINDERSLEY'S COURT. 1842, and found that the defendants were only enwas calculated at 54 per cent. from the 16th Jan. titled to interest at 4/. 10s. from the 16th July 1843, and the master also disallowed a sum of 1507. allowed by the defendant Lewis to W. Cottle, the tenant of the unsold part of the mortgaged premises, out of his rent during the period of agricultural depression throughout the county, and also a sum of 341. 16s. 6d. Mortgage-Agreement to accept reduced rate of interest valuing the said estate before making the said depaid by the defendant Lewis to a surveyor for or punctual payment-Possession by mortgagees-duction or allowance. Receiver, allowances by. Tuesday, July 16. An agreement was entered into to the following effect:defendants to 51. per cent. interest, and the allowance Baily, Q. C. and Hetherington in, opposition, were not called upon. C. Barber for other parties. Friday, July 20. PIERCE V. THE ATTORNEY-GENERAL. estate not included therein. [JULY 28, 1855. V. C. KINDERSLEY'S COURT. confined that power strictly to leaseholds. The words was to be observed that the word "devise" did not occur in the clause; nor were there any words of in the will were certainly very general; but then it conversion in it at all applicable to freehold property. The point ought really to be determined upon the whole instrument-on both the will and codicil; and if upon them there was no apparent intention to pass freeholds, but rather, from the care taken to provide in the will for personal estate, an this case from D'Almaine v. Moseley, 21 L. T. Rep. that alone would pass. implication that that alone was intended to pass, He then distinguished 297. Further, the codicil, although it confirmed after the testator acquired the real estate, was exethe will previously made, and was executed of revoking the appointment of Mr. Graves as executor, and beyond that could only be taken to express cuted for the sole additional and special purpose the will of the testator in all other matters to leave his will precisely as it was before the codicil was made. The 7 Will. 4, and 1 Vict. c. 26, did not apply to this case, except so far as it enabled a teshis will, and of which he might be seised at his tator to devise real estate acquired after the date of death; the clause in the Act making the will speak. as from the moment immediately preceding the death of the testator, still only reduced the present quesfreehold property did not pass squired, codicil; and he contended that even in that view this tion to one dependent upon the will alone without the word "leasehold "should be struck out of the clause Rudall, for the other defendants, insisted that the He referred to 7 Will. 4, and 1 Vict. c. 26, ss. 23 and in the will, when there would be a direction to sell all 24; Fullerton v. Martin, 1 Dr. 238; Jones v. Price, the testator's estate and effects, including freeholds. 11 Sim. 557; Lunn v. Osborn, 7 Sim, 56. gegn has Elderton was not called upon to reply This was a redemption suit. The bill stated that, by an indenture dated the 19th Jan. 1840, and made between William Long Wrey and Frances Saunders condition applies to each succeeding half-year in which The VICE-CHANCELLOR.-I am of opinion that the Wrey, his wife, of the one part; Sir Thomas Dyke the interest was duly paid, and that what the parAcland, Edward Divett, and Samuel Frederick ties intended was, that if in any given balf-year the Milford, three of the trustees of the West of England interest was punctually paid, Fire and Life Assurance Company, of the other part; 4. 10s. per cent., but that, if payment was not puncfor the considerations therein mentioned, the said tually made, then that 57. per cent. should be taken should be accepted at William Long Wrey granted, bargained, sold and for that half-year. The exception therefore cannot be confirmed, and the said Frances Saunders Wrey, in allowed. With respect to the second exception, the order to extinguish her right of dower, granted, bar-master could not avoid doing what he has done. As to gained, sold and confirmed the mansion-house, mes- disallowing the surveyor's expenses, and the allowsuages, tenements, farms, lands and hereditaments ances to tenants, that exception must also be over-construction of this will is very easy, and the lanin the schedule thereto annexed, unto and to the use ruled. of the said Sir Thomas D. Aeland, Edward Divett, and S. F. Milford, their heirs and assigns, subject to a proviso for redemption on payment by the said W. L. Wrey, his heirs, executors, administrators or assigns, on the 16th July next ensuing, to the trustees or trustee for the time being of the said company, of the sum of 20,000, with interest for the same after the rate of 5. per cent. per annum, without any deduction or abatement whatsoever. And after a covenant by the said W., L. Wrey for the payment of the said sum and interest, the indenture contained the following proviso: Provided always, and it is hereby agreed and declared between and by the parties to these presents, that if, on the 16th day of July 1840, and the 16th day of Jan. 1841, and on the 16th day of July and the , 16th day of January in every year afterwards, or within one calendar month after each of the said days respectively, half-a-year's interest after the rate of Al. 10s, for every 100%. by the year for the sum of 20,0001, or for so much thereof as shall for the time being remain due, without any deduction or abatement whatsoever out of the same, shall be paid to the trustees or trustee for the time being, then for every half-year for which interest after the rate of 47. 10s. for every 1007. by the year shall be so paid as aforesaid, the said trustees or trustee for the time being shall and will accept and take such interest in lieu and satisfaction of interest of 51. for every 100l. by the year, anything hereinbefore contained to the contrary notwithstanding." The VICE-CHANCELLOR said-I really think the guage clear. No doubt the words used in the gift and bequest of all the leasehold and other estates and effects to the trustees of the will, upon trust for sale, authorities, and the principles of them, it is plain to my are in themselves sufficient to include real estate, as well as leasehold or other personalty. Upon the mind that the words used by the testator in this will A testator, by his will dated in 1840, bequeathed all kis the Wills Act, real estate acquired subsequent to the would pass real estate; and, as the will was made since leasehold and other estate and effects whatsoever to will, and of which the testator might be seised at his trustees, upon trust for sale, and gave his trustees death, would pass. And the fact that the limitations full powers of leasing and managing his personal and provisions in the will following the trust for sale estate; he then became entitled to a freehold house, are applicable to personalty only, does not affect this and afterwards, in 1843, made a codicil confirming view of the operation of the preceding general bequest. his will. He died; and on a bill filed for the ad-But the question does not depend simply on these ministration of his estate, and praying a sale of the · freehold house, as subject to the trusts for sale contained in the will: The defendant Lewis was, by an indenture of even date with the last stated indenture, appointed receiver, agent and attorney of the mortgagor to receive the rents, issues and profits of the premises comprised in the last-mentioned indenture, and by the indenture now in statement it was declared that all the rents, issues and profits which should be received by the said defendant should be held upon trust to pay the taxes, repairs and outgoings therein mentioned, and to retain all reasonable expenses, and to deduct for the use of the said defendant any sum not exceeding 5l. for every 1007. received as he should reasonably deserve for his trouble for receiving the said rents. And in the next place to pay the interest on the said sum of 20,000l. or for so much thereof as should remain unpaid on the day and at the time mentioned in the indenture of mortgage; and to pay the surplus, if any, to the said W. L. Wrey, his heirs or assigns. Default was made in payment of the interest, and the defendant Lewis, on the 11th June 1842, entered into possession of the premises and continued in such possession and received the rents and profits from that time up to the sale of such parts thereof as were sold, and of the remaining portion up to the present time. the 11th June 1812 to the 16th July 1843, the rents From received by Lewis, after making deductions for taxes, were not sufficient to pay the interest to the defendants; but from the 16th July 1843 to the present time the rents were more than sufficient for that purpose. On the 6th July 1850 the cause came on to be heard and a decree made, whereby it was referred to the master to take the usual accounts. Te master made his report on the 13th Nov. 1854, and thereby disallowed the account of the principal and interest due to the defendants, in which the interest Held, that such freehold house did not pass by his will; considerations. after the testator's death, sell the leaseholds and so It must be determined from the scope of all the directions contained in the will; and those are, that the trustees shall, as soon as possible much of the personal estate as shall be of a saleable nature, and hold the proceeds upon the trusts of the year 1840, after giving several legacies, and providing from the will; if, that is to say, I were to strike out The testator in this suit, by his will, dated in the suggestion made, and strike out the word “leasehold” will. Now, it is clear that if I were to accede to the for the payment of his funeral and testamentary expenses and debts, gave and bequeathed all his lease-ately put in, I might then hold that there was a hold and other estates and effects whatsoever to the distinct direction to sell the real estate. But I cannot do from this will a word which the testator has deliberplaintiffs, their executors, administrators and assigns, that; and if I cannot, there is then no direction whatupon trust for sale, and investment of the proceeds ever in the will for the sale of freehold property. Đi arising therefrom, and to hold the same for the benefit course, I do not mean to say that the court would not, equal moieties. The will was drawn with great it will only do so when upon the face of the will to of his two natural sons, who were defendants, in if necessary, reject a particular word in a will; but accuracy and precision, and contained powers of retain it appears inconsistent with the general inleasing, and for the receipt of the rents of his lease-tention of the testator, and a thing impossible to be hold property, and other provisions applicable to the done agreeably with the furtherance of his express management of personal estate. will the testator had no real estate; but subsequently cases is, never thereto, in Nov. 1840, he acquired the title to a free- unless the reading them as they stand is inconsistent At the date of his wishes. The plain rule of construction in all such hold house in Holywell-street, Strand. By his will with or opposed to the evident object of the testator. to alter the words of a will, by a codicil, dated in 1848, he revoked that appoint- improbable, in supposing that the testator meant to he had appointed a Mr. Graves as his executor; and Now, there is nothing here either inconsistent or ment, but in all other respects thereby confirmed his have only the leasehold and other personal estate sold will. He died in 1849 leaving several legatees, and as he has directed; and I cannot therefore strike out his two sons aforesaid, him surviving. In the course of this suit, which was instituted for the adminis- must take it that he has by his will directed the sale tration of the testator's estate, a reference had of his leasehold and other saleable personalty; and this word "leasehold " been made to chambers, to ascertain whether there then he has given and disposed of the proceeds arising as suggested. Well, then, I was any heir-at-law, and who he might be; but it from those sales; but he has given nothing whatever declaration that the freehold house was subject to the legatees under his will, beyond an interest in the prowas found that there was none. trust for sale in the will, and for a sale thereof ceeds arising from those sales. That is the effect of The bill prayed a either to the trustees, or beneficially to any of the accordingly; and the question, therefore, now was, whether it passed under the bequest of all the lease held to include this freehold house, there is still no hold and other estates in the will, either by aid of the beneficial interest in that real estate thereby conferred the words of this bequest; and even if they were not to be taken to have died intestate as to such free- property would, even if the legal interest in it passed codicil, or otherwise? or, whether the testator ought upon any one. The beneficial interest in the freebok! hold, and that, in the absence of any heir-at-law, it had devolved upon the Crown? to the trustees under the words used by the testator, descend to and vest in his heir-at-law. (I consider that, as there is no heir-at-law, the Crown represents although these words might pass realty, and, since the his interest.) It must not be forgotten that the testator had no real estate at the date of his will; and, to his will, have become, and then have died, reised; Wills' Act, real estate of which he might, subsequent still, when I find him dealing only with leasehold and personal estate at the date of his will, I cannot.. I Elderton appeared for the plaintiffs. V. C. STUART'S COURT. think, say that he intended by the words he has used to devise real estate-to devise, I mean, any legal interest in this freehold property; but that he did mean to bequeath only such an interest as he has actually passed in the personalty. There is, as I have said, no beneficial interest given in anything but the proceeds of certain sales; I must therefore hold that the real estate of which this testator died seised is undisposed of; and that, in the absence of his heir-at-law, it will devolve upon the Crown. I may observe that the case of D'Almaine v. Moseley does not touch the present one; and that, even holding the will to speak from the moment before the death of the testator, and to include this freehold property, the beneficial interest in it would still remain undisposed of. But, in the view which I have taken of the question, not even the legal interest passes, under the words of this will. V. C. STUART'S COURT. July 4 and 5. BRIGGS V. THE EARL Of Oxford. BEAVAN . THE EARL OF Oxford. Equitable tenant for life-Mortgage-Waste-Right to retain by trustees of the settlement as against mortgagee in respect of waste. A., being equitable tenant for life in remainder of certain estates, mortgaged and incumbered his interest. Afterwards, when equitable tenant for life in possession, he wrongfully cut timber on the estates and applied the proceeds to his own use. the settlement were empowered to cut timber (but not The trustees of without the consent of A., while he was in possession), and apply the proceeds to the trusts of the settlement. In a suit brought by the trustees against A., to restrain the waste, an injunction was obtained and an order afterwards made declaring that the sum found due from A., in respect of the timber, was a charge on his life-estate. In another suit brought by the mortgagées of the life-estate of A., to which the trustees were defendants, the chief clerk disallowed their claim to retain, in respect of the sum so found due from A.: Held on motion to vary the chief clerk's certificate, that the persons interested in remainder were entitled to a lien on the rents and profits received by the trustees during the life-estate of A., as against his mortgagees and incumbrancers. This was a motion to vary the chief clerk's certificate in the second-named suit. By indenture of the 20th March 1832, made between the Right Hon. Edward, then Earl of Oxford, of the first part; the Hon. Alfred, then Lord Harley, his only son and heir-apparent, of the second part; John Moore, since deceased, of the third part; and Thomas Briggs, one of the plaintiffs, in the irst-named suit, of the fourth part; after reciting that divers freehold estates therein described had become vested in the said John Moore, and partly in the said Thomas Briggs, upon trust for raising 100,000%; and that no money had yet been raised by virtue of the said trusts; it was witnessed that they, the said then Earl and the said then Alfred Lord Harley, directed and declared that the said sum of 100,000, or so much as should be required to discharge the debts and incumbrances therein mentioned, and also to satisfy the sum of 30,000%, raiseable for portions for daughters as therein mentioned, should be raised as well by sale as by mortgage of the said hereditaments; and provision was thereby made for payment of certain sums to the said Alfred, then Lord Harley, as therein mentioned, and for the payment of an annuity of 6007. a year, to the said Alfred then Lord Harley, during the joint lives of himself and the said then Earl of Oxford; and the said then Lord Harley, thereby directed and appointed that the Earl, and Alfred then said John Moore and the said Thomas Briggs and their respective heirs and assigns, should, subject to the several trusts and powers for raising money as aforesaid, convey and assure all the said freehold hereditaments unto certain trustees therein named, or such other persons as they, the said then Earl, and Alfred then Lord Harley, should name, and their heirs; to the use of the said trustees, their heirs and assigns, upon trust, in the first place, to raise any sum not exceeding 50,000l., and apply the same in discharging any debts of the said late Earl then already created, and, subject to such trusts, to stand seised of the said hereditaments, upon trust to pay the rents and profits (after keeping down the interest upon the several mortgages, the said annuity of 6007. to the said Alfred, then Lord Harley, and all costs, charges, and expenses incident to the execution of the trusts) to the said then Earl and his assigns, during the joint lives himself and the said Alfred then Lord Harley; and in case the said Alfred, then Lord Harley, should survive the said Earl (which event happened), then, after the death of the said Earl, to the use of the said Alfred then Lord Harley, and his assigns for life, without impeachment of waste (but subject to the power thereinafter limited to the trustees to fell timber and underwood growing on the said bereditaments); and after the death of the said VI O STUART'S' COURT. their heirs, by way of mortgage, to secure 50,000Z. and interest, and it was declared that any person who might thereafter be appointed receiver should, subject to the payment of interest on the sum of 70,000%, keep down the interest of the sum of 50,000. leaving the plaintiffs, by survivorship, the sole trusThe said John Bissell and Henry Winchester died, tees of the indenture of 12th Nov. 1835. time, during the life of Edward Earl of Oxford, received various sums out of the trust estates, by cutThe trustees of the said indenture, from time to ting down and selling timber, and they applied the same in satisfaction of the mortgages, which were thereby reduced to the sum of 93,0007. Alfred, then Lord Harley, in case he should survive his said father, upon trust, out of the rents and profits, to pay the defendant Eliza, the Countess of Oxford, then Lady Harley, an annuity of 6007. for her life; all arrears, if any, of the said annuity to be a charge on the estates thereby settled and to be raiseable by the trustees in the same manner as the sum of 50,000l.; and after the decease of the surviHarley, but subject as aforesaid, upon trust for the vor of them, the then said Earl and Alfred then Lord first and other sons of the body of the said Alfred then Lord Harley in tail male; and for default of such issue, in trust for the said Edward then Earl of Oxford, his heirs and assigns for ever. the said indenture agreed and declared that it should And it was by be lawful for the trustees or the survivor of them, his 1835, devised all his freehold estates, subject to the Edward Earl of Oxford, by will dated 19th March executors or administrators, at any time or times there- charges and prior estates to which they might be after, so long as there should be any mortgage or mort- subject, to the said T. Briggs and T. C. Briggs, for a gages, incumbrance or incumbrances, subsisting upon the said hereditaments, but not after the said then his debts and legacies, in deficiency of his personal term of 500 years, upon certain trusts for payment of Earl's decease, without the consent in writing of the estate, and subject thereto, to Jane Elizabeth Lady said Alfred then Lord Harley, if living, to fell and Langdale, then Lady Jane Elizabeth Harley, for life, cut timber and underwood, and sell and dispose without impeachment of waste; remainder to trustees, thereof, and apply the money in liquidation and discharge of the subsisting mortgages or incumbrances, first and other sons of the said Lady Langdale succesto support contingent remainders; remainder to the or of some or one of them. And it was thereby fur-sively in tail male, with divers remainders over; rether agreed and declared that the copyhold and lease- mainder to Lady Frances Vernon Harcourt for life, rendered and assigned to the said trustees, their heirs, ders over. By a codicil to his said will dated the 12th hold hereditaments therein mentioned should be sur- without impeachment of waste, with divers remainexecutors, administrators and assigns upon the like May 1845, he devised all his freehold estate, subject as trusts. And the said Edward then Earl of Oxford, aforesaid, and also to all the limitations in his said thereby nominated and appointed the said Thomas Vernon Harcourt, to the Hon. Jane Frances Bickerand Alfred then Lord Harley, and John Moore, will prior to the limitation to the said Lady Frances Briggs, generally to superintend the management of steth for her life, without impeachment of waste, the said estates, and to receive the rents, &c., and all with divers remainders over. wood on the said estates, and all other the issues moneys arising from the sale of timber and under&c., and to prosecute actions and suits, and to do any and profits of the same estates, and to give receipts, such rents, he, the said Thomas Briggs, to stand posact whatsoever relative to the receipt or recovery of trust, in the first place to retain and satisfy his costs sessed of the moneys to be received by him, upon and expenses, including an allowance of one shilling in the pound, for his care in the management of the the annuity of 600l. to the said Alfred then Lord said estates; and upon trust in the next place to pay Harley, and after his death to Lady Harley; and to pay the surplus or residue of the said rents and profits to the then said Earl or his assigns for life; and after and after the death of the survivor, then to such perhis death to the said Alfred then Lord Harley for life; sons as should by virtue of the settlement be entitled to receive the same. by way of mortgage, dated the 6th and 7th Feb. lease, of the 11th and 12th Nov. 1885, the appointment 1832. 13th and 14th Nov. 1835, said hereditaments were Dec. 1848, whereupon Alfred, then Lord Harley, beThe said Edward Earl of Oxford died on the 28th came equitable tenant for life of the trust estates. including a mortgage to William Henry Beavan, ford being then subject to various incumbrances, In Aug. 1849, the life-estate of Alfred Earl of Oxin favour of Eliza Countess of Oxford, under a postdated 19th Dec. 1842, an annuity of 2000l. per annum nuptial settlement dated 3rd July 1838, and several judgment-debts, the suit of Bearan v. The Earl of himself and the other creditors against Alfred Earl of Oxford was brought by W. H. Beavan on behalf of Oxford, the Countess of Oxford, the said plaintiffs T. Briggs and T. C. Briggs, and the other incumbrancers, praying, amongst other things, for a receiver. Earl of Oxford, on the 15th Dec. 1849, upon the By an order made in the cause of Beavan v. The plaintiffs T. Briggs and T. C. Briggs undertaking, possession of such of the said manors and hereditaor until further order of the court, to continue in ments as were then in their possession (except the during the life of the defendant Alfred Earl of Oxford, abouts at Eywood, and the mansion-house called mansion-house and 50 acres of park land or thereBrampton-hall, and the land contiguous), and to take possession of such parts, if any, of the same premises, of, and to account for the rents and profits of the same except as aforesaid, as they were not then in possession plaintiff's T. Briggs and T. C. Briggs should be at as the court should direct: it was ordered that the longing to the trustees of the Equitable Assurance liberty, out of the rents and profits, to pay the outgoings Society, and in respect of the other incumbrances and keep down the interest of the incumbrances beaccording to their priorities. And it was ordered that without giving security and without salary, of the rents the plaintiff T. Briggs should be appointed receiver, and profits of said niansion-house called Bramptonhall and the contiguous lands. And it was ordered bis accounts before the master, and pay the balance that the said T. Briggs should from time to time pass reputed due from him as such receiver into the bank to the credit of the cause. and were in receipt of the rents and profits of the T. C. Briggs entered into possession of the said estates, After the above order the plaintiffs T. Briggs and estates, except as above mentioned. Oxford sold and cut considerable quantities of timber and T. Briggs against Alfred Earl of Oxford, and the an injunction before Parker, V. C., on 23rd Dec. 1851, V. C. STUART'S COURT. when the V. C. granted the injunction: (See the report, 5 De G. & Sm. 156.) The judgment of the V. C. was confirmed by the Lords Justices on appeal on 24th Feb. 1852: (1 De G. M. & G. 363.) The master by his separate report, dated 16th Aug. 1852, found that the said Alfred Lord Oxford had from time to time cut timber, and that there was a balance of 25501. 38. 6d. remaining in his hands, in respect of the proceeds of the sale of such timber. In the year 1853 Alfred Lord Oxford died, leaving his widow the defendant Eliza Countess of Oxford, him surviving, whereupon the defendant Lady Langdale became equitable tenant for life of the trust estates. The chief clerk by his certificate in the cause of Beavan v. Lord Oxford, dated the 12th June last, stated, amongst other things, that there was due from the trustees a balance of 76151. 7s. 5d.; and that he had struck out the item in the debtor side of the trustees' account, amounting to 25501. 3s. 6d., being the sum mentioned in the said order of 17th March 1855. The present motion was in both causes, and it prayed that the certificate in Beavan v. Lord Oxford might be varied in the following manner: namely, that in lieu of 76151. 7s. 5d., certified to be due from the said Thomas Briggs and Thomas Carter Briggs, defendants in the latter suit, it might be certified that the sum of 50651. 3s. 11d. was due from them, and that they were entitled to a charge or incumbrance upon the rents and profits belonging to the estate of Alfred Lord Oxford, since the death of Edward Lord Oxford, received by them, for the sum of 25501. 3s. 6d., the net proceeds of timber cut by Alfred Lord Oxford, and received by him contrary to the provisions of the indenture of the 20th March 1832, in the pleadings stated; and that it might be certified that such charge or incumbrance was prior to the charges or incumbrances of the plaintiff and defendants in Beavan v. Lord Oxford. LAW TIMES REPORTS. V. C. STUART'S COURT. creditor, argued that Lord Oxford had no right upon the legal estate, his argument would be valid. But Walker, in reply, on the cases cited. cut. By an order of the 9th June 1854, in the cause of Beavan v. Lord Oxford, it was ordered that an account should be taken of rents and profits belonging to the estate of Alfred Lord Oxford, since his death received by the said T. Briggs and T. C. Briggs; in taking which account the said T. Briggs and T. C. Briggs claimed to retain, out of the moneys in their hands received on account of the said rents and profits, the sum of 2550l. 3s. 6d. found by the master's report to be the balance remaining in the hands of the said Alfred Earl of Oxford, in respect of the sale of timber; but the chief clerk rejected the claim. On the hearing of the cause of Briggs v. Lord Oxford, on further directions on 17th March 1855, it was declared that the estate of the late defendant Alfred Earl of Oxford was liable to make good to the plaintiffs' trust estate the sum of 25501. 3s. 6d., the balance by the master's report of the 16th Aug. 1852 found due from the said late defendant in respect of the proceeds arising from the sale of timber as in the said report mentioned, and it was thereby declared that the sum of 25501. 3s. 6d. was a charge on the rents and profits of the said trust estates, payable to the said late Earl of Oxford, under the said indentures of the 20th March 1832 and the 12th Nov. 1835; and that the plaintiff ought to retain such rents and profits, or a sufficient part thereof, in or towards satis-brancers and creditors of Alfred Lord Oxford depends faction of the same sum; and they were ordered to The VICE-CHANCELLOR,-The case of the ineumretain the same accordingly. done with regard to cutting timber was a personal upon two circumstances on which their arguments wrong committed by a stranger to the estate. Another have been principally based. One is, that what was ground of argument was, that no lien or charge can subsist against a tenant for life who cuts down timber, upon the rents of the life-estate, so as to have those rents applied, at the instance of the remaindermen, to make good to the inheritance the value of the timber dent of the rights of the incumbrancers as purchasers and alienees of the life-estate. These two circumstances are entirely indepenfirst important consideration is, what was the right of Lord Oxford? and the second, what were the rights of the persons in remainder? Now, it is a The mistake to say that Lord Oxford was a stranger to the estate. He was tenant for life, and continued to be tenant for life, except that he had pledged his lifeestate as a security to certain creditors. He had conreyed away his interest by an instrument which reserved to him a proviso for redemption. He was therefore in the position of an ordinary mortgagor, not of a stranger to the estate. He no doubt committed an illegal and unauthorised act, an act which was injurious to the inheritance, and which took away from those interested in the inheritance a material part of the estate. It seems to me to be a Cairns and Martineau appeared for Lady Lang-question except between Lord Oxford and the redale, the present tenant for life, and the Hon. maindermen, and he were principle well established, that if there had been no Jane Frances Bickersteth, in support of the mo- receipt of the rents and profits, the persons interested tion. They contended that, as Lord Oxford had in remainder and in the inheritance would have had committed a wrongful act against the inheritance, a tenant for life in the trustees of the settlement had a right to retain that is due ascertained, the rents of the estate imthe sum found due by the master, against the mort-pounded, and the injury made good to the remaindera right to come to the court to have the amount gagees, Lady Oxford and the judgment-creditors. men so as to recoup the inheritance. I have asked As to the mortgagees, they could obtain nothing but a right to come to the trustees for an account of the rents and profits, and could only take what Lord I therefore assume that Lord Oxford could not, while for some authority to say that this is not a principle Oxford himself could give. As to the judgment- the wrong was unredressed, have insisted on conon which this court is bound; but I could find none. creditors, they also could take only such estate as tinuing in possession of these rents. But it is said the debtor had: (Whitworth v. Gaugain, Cr. & Ph., that this wrong was committed after he had conveyed 325; Hughes v. Williams, 3 Mac. & Gor., 683; away his life-estate to purchasers. It is a mistake to Waring v. Coventry, 2 Myl. & K. 406.) Finally, as to Lady Oxford, her interest was under a voluntary absolute alienees of the life-estate. They took only a settlement. treat the rights of these incumbrancers as if they were remaindermen to proceed against the tenant for life, and these incumbrancers-not against any one of them modified interest, which makes it necessary for the only, but against Lord Oxford himself and all claiming under him. and profits by way of lien. arising from contract. It is a lien arising from the Remaindermen can only reach the rents rights that accrue under the instrument that creates But this is not a lien the settled estates. I consider it a settled principle of this court that a tenant for life is not to conduct any transaction in such a way as to deprive the remaindermen of this right. say that the effect of this instrument upon the lifeestate made it impossible for those interested in reBut here I am asked to mainder to assert this right against the rents and profits. It is necessary here to consider a little accurately what the condition of the alienees of a tenant for life is with respect to the rents and profits conveyance, all the rents and profits of the estate were vested in the incumbrancers. That is not the of the estate. It is said that, from the date of the Malins and Cole for the plaintiff in Beavan v. Lord Oxford.-At the time when the mortgage to Beavan was made (1842), the legal estate was not in the trustees, but in the Equitable Assurance Company as mortgagees of the inheritance; and Alfred Lord Oxford was then, as Lord Harley, tenant for life in remainder, his father being living. Suppose this had been a mortgage of a chose in action, and notice had been given to the trustees, they would have become trustees for the mortgagee. Then, can the mortgagee be prejudiced by any act of the mortgagor? If the trustees had cut timber and lent the money to Lord Oxford, could they have retained as against the mortgagee? Again, this is an equitable interest in land, and conveyances of such interest, without notice, take rank according to date: (Jones v. Jones, 8 Sim. 642.) This was a mere personal debt of Lord Oxford. Walker and Birkbeck, for the trustees of Lord Oxford's settlement (3rd July 1838) and for a judgment [JULY 28, 1855. V. c. WOOD'S COURT. view the court takes; for if this proposition were as absolute as has been contended for, every payment of a bad payment. That is not the view of the court. rent to a tenant for life after a mortgage, instead of It is therefore a mistake to say that there was such to those persons to whom he had conveyed, would be an absolute alienation to the mortgagee as has been contended for in the present case. If there had been an absolute sale and complete departure with the whole of the estate, a different argument might have occurred, because, at any rate after notice, a payment of rent to the tenant for life would have been a wrongful payment. the rents and profits of the incumbrancers. Before In this case it is said that the suit of Beavan v. Lord Orford, from the date of the tees' hands liable to be paid into court in that suit asorder of 1849, made the rents and profits in the trussuit to bring before the that proposition is accepted, I must consider what life and all other incumbrancers besides the plaintiff and the trustees who represent the, remainthe suit of Beavan v. Lord Oxford was. It was a dermen. obliged to come into this court to have their rights court the tenant for established. The parties to the suit could not have received the rents as a class, but only successively, All these are equitable incumbrancers, except through the aid of this court. It is not a these rents as his. correct view with respect to the rights of the incumLord Oxford is an incumbrancer, and gets a rebrancers to say that any one of them can claim ceiver, still the receiver is the officer of the court. If the plaintiff in Beares v. Then, if it be a right view to treat a remainderman the remainderman is lost by the incumbrance of the while the rent is undisposed of the inherent equity of as entitled to a lien, how can it be right to say that tenant for life, because the equity existed prior to the Alfred Lord Oxford as a simple debtor to the estate. presenting a single life-estate. I am asked to treat date of the act complained of? I can only treat. Alfred Lord Oxford and all the incumbrancers as relife-estate. If then anybody proves against the perIt is not denied that the wrong must be redressed as sonal estate, it must be the trustees of the inheritance. against Lord Oxford, but it is said not against his They are all creditors: and there is an equity inherent in the condition of them all. I should not be justified in saying that the mere date of an incumbrance fixes the called attention to the language of Sir Edward Sugden time beyond which they cannot follow the estate. 1 in the case of Coote v. O'Reilly. Sir Edward Sugden the settlement, independently of contract. That is, arising from the circumstance that his estate for says: "I take it to be clear that the obligation life is carved out of the whole inheritance, and must of the tenant for life is an equity arising out of preserve the rights of all the owners of the inheri tance, This view is founded on a principle, to my mind, wholly settled. The question has been very strictly argued on behalf of the incumbrancers. If the incum brancers had been able to receive the rents and proshould not do justice if I did not recognise the equity of the incumbrancers against the tenant for life. I fits, I could not have taken them from them: and I Orford, until that decree be set aside, which none of the incumbrancers have attempted to do. Whether am. moreover, bound by the decree in Briggs v. Lord language of the decree; and looking at that language, the certificate is right in form or not, depends on the the lien of the remaindermen incumbrancers, and must order that the sum of but the motion being in both causes, I must establish I think it is right in form. I think it must stand; Lord Oxford, be carried over to the credit of the cause of Briggs v. Lord Oxford; and trustees to pay the 25501. 3s. 6d., mentioned in the decree in Briggs v. as against the balance of the rents found due to the credit of the Briggs v. Lord Oxford, to be costs in that cause; and cause of beavan v. Lord Oxford. The costs of those be costs in that cause; the incumbrancers and crepersons appearing in this motion, who are parties to ditors not being parties to the suit to bear their own costs, to be added to their incumbrances. the costs of the parties to Beavan v. Lord Ozford, to V. C. WOOD'S COURT. Wills Act. Execution of power of appointment—General deviseA testator devised all his real estate to such uses as A. by deed or will should appoint; in default, to A for life; after the death of A. he directed that the Hunslet estate should be sold, and the produse fall into his general residuary personal estate, and as to the SaintCatherine estate, and all his other real estate, he devised them in strict settlement to B. and her issue. testator gave his residue as A. should appoint by deed or will, and in default upon trusts for B. and her children. After the testator's death A. appointed all the personal estate to herself for life, and afterwards to the trustent The V. c. WOOD'S COURT. of the will. On the marriage of B., A. revoked her own life-estate, and appointed the personal estate to the trustees of the will, to hold 20,000l. upon such trusts as she (A.) should appoint, and as to the remainder upon trust for B. and her children. After B. married, A. made her will, in 1851, giving all her real estate to trustees, upon the trusts of the Saint Catherine estate: Held, first, that the appointment of the personalty did not include the Hunslet estate; and, secondly, that the will of A. was within the operation of the Wills Act, 7 Will. 4 & 1 Vict. c. 26, and that a general devise operated as an execution of the power over the Saint Catherine estate. This was a suit instituted by trustees for the purpose of obtaining the decision of the court upon the construction of two wills and a settlement. The facts were these:-Mr. George Banks, the testator in the cause, by his will, dated 1841, devised all his real estate whatsoever and wheresoever to such uses as his sister Eliza Banks should by deed or will appoint, and, subject thereto, to the use of her for her life; and devised his Hunslet-lane property to the plaintiffs after her decease, he Walker and Oldham, in fee upon trust, to sell and hold the proceeds upon the trusts declared of his residuary personal estate. house at St. Catherine's and all other his real estate, And as to his mansionto the use of the plaintiffs upon trust for the defendant Georgiana Banks, till her marriage, and after her marriage to pay her 1000l. per annum, to her separate use, and the rest of the rents to her husband during her life; and on her decease, 1000l. per annum to her husband for life; and if there were issue to pay all the rents to the husband, after deducttions for maintenance of the issue; with remainder to the first and other sons of Georgiana Banks, successively in tail male; remainder to the daughters successively in tail male; remainder over. And as to all his personal e queathed, he gave the same to such person and in estate and effects not before besuch manner as his sister Eliza should by deed or will appoints and subject thereto to the plaintiffs, to invest the residue thereof and pay the income to Georgiana Banks for her life, for her separate use, without power of anticipation, with remainder as she should appoint among her younger children. The tesfator died in 1843. married the defendant Rev. Robt. John Sharpe, her In 1848 Georgiana Banks present husband, who afterwards took the name of Banks There were five children of the marriage, all defestidants in the suit. A marriage-settlement was thereupon executed, the full effect of which is stated in the judgment. In 1850, Eliza Banks, the sister of the testator, made her will, by which in general terms she devised all her real estate to the trustees of her brother's will, to the uses and upon the trasts therein declared of the mansion-house at St., Catherine's. The testatrix died in 1851, scised of considerable real estate not derived from her brother. The plaintiffs, in 1854, entered into a contract to sell the Hunslet-lane estate, assuming to act in execution of the power of sale in the testator's will; one point raised in the court was, whether the general devise in the testatrix's will did not operate as an execution of the power of appointment which she had over all the testator's real estate? in which case the Hunslet-lane estates would be strictly settled on the same trusts as the St. Catherine's mansion-house was by the testator's will. Another point contested was, whether, if the Hunslet-lane estates were still subject to the trust for sale in the testator's will, and so did not pass by the testatrix's general devise, the purchase money would not have to be considered as part of the general personal estate of the testator, and as such liable to the general power of appointment of the the marriage-settlement?" LAW TIMES REPORTS. V. c. WOOD'S COURT. She re thereinafter contained, and [Vol. 25-267 QUEEN'S BENCH one of the great objects of a general residuary clause, viz. to prevent intestacy at all events. I cannot get which he had altogether forgotten. That is, in fact, my mind to a higher degree of doubt than this, that probably the testatrix had not this property present in her mind at all. But that is not enough to prevent it from passing under her will since the late Act. It is just for that very purpose, viz. to catch up any fortroduced at all; and the statute says that such a devise shall be just as effectual to avoid an intestacy gotten item of property, that a residuary clause is inin respect to estates over which a testator has a power, as in respect to estates which he holds in his own right. The residuary appointment in her will only directed to be converted into personalty. If she had affects, as I have already stated, pure personalty, and gone a little further, and drawn any distinction between the circumstances of the property vested in not the Hunslet-lane property, which was only been difficult, as no sale or conversion is to be made been a question, although even then it would have the trustees under the brother's will, there might have direct her trustees, if they shall so think fit, to treat all her residuary estate, and that under her brother's until after her decease. But now, all she says is to will, as a common fund. All this is quite intelligible the power. No opposite intention appears upon the upon the supposition that she was intending to execute face of the will. Common Law Courts. Reported by ADAM BITTLESTON, JOHN THOMPSON, and T. W. Evidence-Title to several fishery, and to soil of sea- Upon the trial of an action brought by A. against B. for : B. was: Held, first, that the award was inadmissible as evidence of versionary interest in a several fishery in an arm of tenant. said Eliza Banks, which power she had exercised by clause she has disposed of the Hunslet-lane estate same right by Fairman against one Gipps, who was Rolt and Cairns, Daniel and Hurst, and Pearson, for brother's will; and no other interest beyond her life- defendant Mackenzie had become the tenant. The the several parties: (Hare v. Marsden, 3 Myl. & Cr.) The VICE-CHANCELLOR.—The first question in this case is, whether the Hunslet-lane estates were disposed of by the marriage-settlement of 1848; for if So, no further question could be raised in the suit. I am of opinion that they were not disposed of by it. The settlement does not recite that all the property of the testator was intended to be settled in the manner there mentioned. It recites the will of the testator, and his decease, and that Miss Banks by deed-poll (purporting to be in pursuance of the power in her brother's will) had directed that the trustees of the will should stand possessed of the residuary personal estate of testator in trust for herself during her life, and and after her decease on the trusts declared by the a life-interest in the Hunslet-lane property, which was not by the testator's will directed to be sold until after her decease. But she had no life-interest in the other part of the personalty, and would have had no interest in it at all unless she had executed that deed-poll, giving herself a life-estate. Subject to that life-estate, she, by the same deed-poll, appointed the residuary personal estate of the testator, to the same persons as were trustees of his will, upon trusts according with those of her brother's will. The settlement then goes on to recite the intended marriage and the agreement to make such provision for Georgiana Banks and her children as over which she had the power of appointment by her estate. the statute, unless I find on the face of the will itself Maidstone, during the last spring assizes for Kent, the proceedings in a former action brought in 1851, At the trial, which took place before Maule, J. at was referred, were tendered and received in evidence. and the award of an arbitrator, to whom that action That was an action brought for a similar injury to the the owner of adjoining property, of which the present Feb. 1851; and it alleged that Lady Wenman was. seised in fee of the several fishery, the plaintiff being declaration in that action was delivered on the 14th her tenant under a lease granted in 1845; but no issue was taken upon Lady Wenman's title in that action; the pleas were delivered in June 1852, and the question of injury to the right was referred to an arbitrator, who made an award in the plaintiff's favour on the 30th Aug. 1852. Gipps had leased to Mackenzie his property adjoining that in question. A verdict having been found for the plaintiff, a rule for a new trial was obtained in In the month of Oct. 1851, Hilary term, on the ground that the evidence abovementioned had been improperly received. contending that the proceedings in the former action were admissible against the present defendant, as the June 19.-Channell, Serjt. and Garth showed cause, fendant claimed under Gipps, who was the defendant same title was in question, and as the present deof Lady Wenman in that action. Her title to the fishery was distinctly alleged in the declaration in the former action, and the defendant having omitted in the former action, and who had admitted the title to deny that allegation, was estopped by his own admission; and that estoppel operated against his tenant. The proceedings would also be admissible as evidence of reputation. |