of 1007., payable to his said daughter A. W. under her marriage settlement; and from and after the decease of his said wife, upon further trust to permit and suffer the said A. W. to receive and take all the net rents and profits to her sole and separate use for life, independent of her husband; and from and after her decease, upon further trust, to permit and suffer the said W. B. W. to receive and take all the net rents and profits to his own use for his life; with remainder to their children in tail. A power of sale was given to the trustees, which required the purchase-money to be invested in the funds in their names: and after the decease of the wife, a power of appointment of new trustees was given to A. W. and W. B. W., or the survivor of them: Held, that the trustees took the legal estate immediately on the death of the testator. DEBT for the use and occupation of a farm situate at Hurst, in the county of Berks. Pleas, 1st, nunquam indebitati; 2ndly, payment; 3rdly, a set-off; 4thly, that the defendants were chargeable only as executors of Charles Greenwood, and alleging a set-off for money due to them as executors. The replications took issue on three several pleas. At the trial before Patteson, J., at the last Berkshire Assizes, it appeared that the plaintiffs sued as devisees in trust under the will of the Rev. Francis Barker, who died in 1830. The will contained the following devise: "I give and devise unto my wife, Elizabeth Barker, my daughter, Anna Maria Wroth, wife of the Rev. William Bruton Wroth, of Eddlesborough, in the county of Bucks, clerk, and the said W. B. Wroth, and their heirs, all and every my messuages, cottages, closes, farms, lands, grounds, hereditaments, and premises whatsoever, situate in Hurst, *in the county of Berks, and elsewhere in the United Kingdom of Great Britain and Ireland, with their and every of their rights, members, and appurtenances, to hold to them my said wife, Elizabeth Barker, my said daughter, Anna Maria Wroth, and the said William Bruton Wroth, and the survivors or survivor of them, and the heirs of the survivor; on trust to permit and suffer my said wife, Elizabeth Barker, to receive and take all the net rents and profits of my said devised real estate, during the term of her natural life, to and for her own use and benefit, subject, nevertheless, and without prejudice to a certain rent-charge or annual payment of 100l. to my said daughter, Anna Maria Wroth, out of my said real estate, or some part thereof, under and by virtue of the settlement made on her marriage; and from and after the decease of my said wife, upon further trust to permit and suffer my said daughter, Anna Maria Wroth, to receive and take all the net rents and profits of my said real estate for and during the term of her natural life, to and for her own sole, separate, personal, and peculiar use and benefit, independent of her present BARKER 7. GREENWOOD. [ *422 ] BARKER ". GREENWOOD. [ *423 ] or any future husband; and from and after the decease of my said wife and my said daughter, upon further trust to permit and suffer the said William Bruton Wroth to receive and take all the net rents and profits, &c. for and during the term of his natural life, to and for his own use and benefit; and from and after the decease of the survivor of them my said wife, my said daughter, and the said William Bruton Wroth, I do give and devise, &c., unto and equally amongst all and every the child or children of the body of my said daughter, Anna Maria Wroth, by the said William Bruton Wroth begotten or to be begotten, as shall be living at the time of the decease of the survivor of them, my said wife, my said daughter, and the said William Bruton Wroth, and the lawful issue of any of the said children of my said daughter as shall be then dead, in equal proportions, share and share alike, such issue *nevertheless standing in the place of and taking only the part or share which his, her or their deceased parent or parents would have had or been entitled to if they were living. There was then a power of sale given to the trustees, which required the purchase-money to be invested in the funds, in their names; and also the following proviso for the appointment of new trustees: "Provided also, and I do hereby declare my will and meaning to be, that from and after the decease of my said wife, it shall and may be lawful to and for my said daughter, Anna Maria Wroth, and the said W. B. Wroth, or the survivor of them, by any deed or writing to be by them, him, or her, respectively duly signed, sealed, and delivered in the presence of, and to be attested by, two or more credible witnesses, to nominate and appoint one or two fit and proper person or persons to be a trustee or trustees for the purposes of this my will." It was contended for the defendants, that upon the proper construction of the will, the legal estate was executed in Mrs. Barker during her life, and that she ought therefore to have sued alone. The learned Judge reserved the point, and a verdict was given for the plaintiffs, damages 256l. 6s. 8d., with leave to the defendants to move to enter a nonsuit. Tyrwhitt having obtained a rule nisi accordingly, citing Broughton v. Langley (1), Doe d. Leicester v. Biggs (2), Doe d. Greatrex v. Homfray (3), and Bridges v. Wotten (4), Ludlow, Serjt., and Lumley showed cause. Maule, Tyrwhitt, and Bros, in support of the rule. PARKE, B.: It appears to me, that when the terms of this will are carefully considered, there is no difficulty in coming to a decision on the case. The question is, whether the legal estate in the lands devised. vested in the first instance in the three plaintiffs, as trustees, or whether, during the life of the widow, it vested in her by operation of the Statute of Uses. The learned Judge who tried the cause was of opinion that it vested in the trustees, and therefore that they were the proper plaintiffs on the record. The case has now been very ably and elaborately argued, and we quite agree with him in the conclusion to which he came. There is no doubt that the general rule of law is, that wherever there is a limitation to trustees, although with words of inheritance, the trustees are to take only so much of the legal estate as the purposes of the trust require. The question here is, therefore, whether it is requisite, in order to carry into effect the trusts of the will, that the trustees should take the legal estate during the life of the widow. It is now clearly settled, that where an estate is limited to trustees, and the words used are, "in trust to pay to" a specified person the rents and profits of the land, there the trustees take the legal estate; because they must receive, before they can make the required payments: but where the words are, "in trust to permit and suffer A. B. to take the rents and profits," there the use is divested out of them, and executed in the party, the purposes of the trust not requiring that the legal estate should remain in them. That is clearly the settled law, and has so long been so, that it is not now open to inquire whether it was rightly established or not. It is also equally clear and settled, that if the testator distinctly expresses his meaning to be, that the trustees are to interfere in the execution of the trusts, and certain duties are cast upon them-if he order, for example, that they shall receive the rents, &c.-there they take the legal estate, whatever words may be used: and the case of Gregory *v. Henderson (1) shows that very slight circumstances of this nature are sufficient for this purpose. There there was a devise to trustees, to permit and suffer the testator's widow to receive and take all the rents and profits, and it was declared that her receipts for the rents, (1) 14 R. R. 665 (4 Taunt. 772). BARKER v. GREENWOOD. [426] [ 429 ] [ *430 ] BARKER v. GREENWOOD. [ *431 ] with the approbation of the trustees, should be good and valid; and the Court held that the legal estate remained in them, on the ground that there was some duty for them to perform. In this case, the trust is not to permit and suffer the widow to receive the rents and profits, but to permit her to receive the net rents and profits; and the question is, whether any and what meaning is to be given to the word "net"? It has been ingeniously argued by Mr. Tyrwhitt, that it was used by the testator with reference to a charge on the estate which had been created in favour of his daughter for her life, by her marriage settlement; and that the meaning of the clause was, that Mrs. Barker should receive all the rents and profits, paying out of them the money secured by this charge. The context of the will, however, if it be carefully looked at, will hardly admit of this construction. The clause itself says that the widow is to take the net rents, subject nevertheless to the rent-charge of 1001. a-year to the daughter, showing thereby that the term "net" was used without reference to the charge subsequently mentioned. Again, the next clause says that the daughter is to receive the net rents for her sole and separate use for life: and although that clause does not necessarily militate with the construction contended for by the defendant's counsel, still that is not its most natural construction. But then the further trust is, from and after the decease of Mrs. Barker and Mrs. Wroth, to permit and suffer the husband of the latter to receive and take the net rents and profits; and inasmuch as the rent charge would then be extinguished and at an end, it *is clear that the testator could not there have used the word "net" with reference to that charge. That application of the word, therefore, being excluded, I do not know what meaning it can have, unless we understand it as contradistinguished from gross; that the trustees are to receive the gross rents, and after paying out of them the land-tax, and any other charges on the estate, to hand over the net rents to the tenant for life; and for this purpose the legal estate must remain in them during her life; and it is clear that, for the purposes of the will, they will continue to have it after her death. Besides, the construction which we are now putting upon the will, will best secure the objects which the testator had in view, since it will prevent the possibility of the contingent remainders being destroyed; although I do not wish to rest the case upon this ground, no case having been shown in which the Courts have construed persons to be trustees for the purpose of preserving contingent remainders, in BARKER V. the absence of any words by which the testator has expressed that it was with that intention he appointed them. Some stress has GREENWOOD. been laid upon the power given to Mr. and Mrs. Wroth to appoint new trustees" from and after the death of Mrs. Barker," as tending to show that the trustees were not to interfere at all until that period we rather think, however, that the testator merely contemplated the probability of her death before that of the other trustees, whereby a deficiency would be caused in their numbers, and therefore gave the survivors the power to supply the vacancy thus occasioned. On the whole, therefore, it appears to me that, in order to carry the objects of this will into effect, the trustees took the legal estate immediately on the death of the testator, and therefore that this action has been rightly brought in their names. ALDERSON, B.: I am of the same opinion, and will only add, that this decision conforms with the principle recognised and acted on in White v. [ *432 ] Parker (1), where a similar effect was given to the word "clear" as we give to the word "net" in the present case; although, undoubtedly, that was a stronger case than the present, since there the trustees had distinct duties to perform. GURNEY, B., concurred. Rule discharged. DUCKWORTH v. HARRISON (2). (4 Meeson & Welsby, 432-445; S. C. 1 H. & H. 349; 8 L. J. (N. S.) Ex. 41; 2 Jur. 1090; 7 Dowl. P. C. 71.) Where an action of debt, in which the defendant had pleaded the general issue and a set-off, was, by consent, referred to arbitration, "the costs of the reference and award to abide the event," and the arbitrators found that the plaintiff was not entitled to recover in the action, and had not any cause of action against the defendant, but said nothing as to the set-off: Held, that the award was final, and that the defendant was entitled to maintain an action for the costs of the reference and award. ASSUMPSIT. The declaration stated, that before the making of the agreement and promise thereinafter mentioned, a certain action had been brought and was then pending in the Court of Common Pleas at Lancaster, wherein the now defendant was plaintiff, and (1) 41 R. R. 636 (1 Bing. N. C. 573). (2) Explained by Lord ABINGER, C. B. in Bourke v. Lloyd (1842) 10 M. 1838. Exch. of [432] |