that will be entitled) will enable it to do so: but in this case it must be remembered, that if the Court does not interpose at all, it is negatively deciding the question against one of the parties: for if the Court abstains from doing anything, and this lady chooses to act upon the supposition that she has no right to cut the timber, the consequence will be, that if it shall hereafter turn out, upon the question arising amongst other persons, that she had the right to cut the timber, she will have lost the whole value of the timber which she might have cut; and on the other hand, if in consequence of the refusal of the Court to interpose, this lady thinks proper to cut the timber, the consequence will be, that if she dies with assets insufficient to answer the value of the timber she has cut, and it shall hereafter be determined, that she had no right to cut any timber at all, she will have got the timber against those who are entitled to it; so that if the Court does not interpose to a certain extent, the consequence, as it appears to me, necessarily must be this, that though the Court appears to refuse to act against one or the other, it does in effect interpose. The result therefore is, that though the Court cannot at the present time absolutely decide upon the interests of the parties, it must interpose to the extent of taking care, that whenever the interposition of the Court is called for, and can be given, the property shall be in such a state, that the rights of those who may be taken to be, or to have been entitled, may not have been prejudiced. The cases which have been decided with respect to personal estate seem to afford the principle, that the Court may interpose to a certain extent. In Harding v. Glyn † the testator gave his personal estate to his wife, and he then proceeded in words, which were held to create a trust in favour of his relations; after the death of the testator's wife (how the property had been preserved in the meantime does not appear) a bill was filed by her representative to carry her will into execution; in that case, as in others, the Court said, that the word "elations" meant persons who would be entitled according to the Statute of Distributions, but it also said, that the word "relations" in that case did not necessarily mean next-of-kin, but meant every † 1 Atk. 469: see 4 R. R. at p. 334. WRIGHT v. ATKYNS. [ *161 ] person who might be a relation. Now the word "relations" is undoubtedly a term that sufficiently describes a class of persons, whether the word "family" does or does not; and part of the personal *estate having been given by the testator's wife to a person who was a relation of the testator, but who was not one of his next-of-kin, either at his death, or at the death of his wife, it was held, that that part was well given, and that the remainder was distributable amongst those persons who were the next-of-kin of the testator, not at his death, but at the death of his wife; during the life therefore of the testator's wife, it must have been an utter uncertainty, who would ultimately become entitled; the Court therefore must have said, either that the testator's wife, who might be wrongfully acting upon the property every moment of her life, should nevertheless be entrusted with it during the whole of her life, or that it would somehow or other interpose in order to preserve the property for those, who might take it at her death, with reference to whom not one might be in being till the last hour of her life. [His Lordship concluded by saying:] My opinion therefore is, that the defendants should be at liberty to cut the timber, in a husbandlike manner, giving security for the value, or bringing the value into Court; and I cannot help thinking, that it is a question upon which I should hesitate a long time, before I should go the length of saying, that the person who has the fee given in this sort of way, is not entitled to cut down timber in a husbandlike manner, as a tenant in fee in the ordinary management of the property might do. That is the strong inclination of my mind: but at the same time in a case of this kind I will not go farther than to say, that where a decision, which is to bind others, can only be made hereafter, it is the duty of the Court in the meantime to keep the property in such a state, that when it is made out who are the objects of favourable decision, they may have the benefit of it. The following are the Minutes of the Order made by the LORD CHANCELLOR : Let the defendants [Mrs. Atkyns and her trustees] be at liberty to cut down the timber standing and growing upon the t. ATKYNS. premises in question in this cause, in a husbandlike manner, as WRIGHT tenant in fee, giving the plaintiffs an account of what is felled. And let the said defendants pay the money to arise by sale of the said timber, (the amount to be verified by affidavit) into the Bank, with the privity of the Accountant-General of this Court, to be there placed to the credit of this cause; and let the said defendants * be at liberty to apply to this Court for more enlarged powers of cutting the said timber; and let any agent to be appointed by the plaintiffs have liberty from time to time to attend, and see that the cutting of the timber is proper according to the meaning of this order. And let the plaintiffs be at liberty to apply to this Court as they may be advised. And let the said defendants be at liberty to apply to this Court to have the said money paid out to them, upon giving security for the same; and let the said defendants be at liberty to appeal from this order to the House of Lords, notwithstanding they act under the same. And this Court does not think fit to make any other order as to the injunction prayed in this cause. * * BURGES V. MAWBEY.† 1823. May 5. An infant tenant in tail is bound to keep down the interest of debts Rolls Court. charged upon the entailed estates. A tenant for life is bound to keep down the interest of debts, but being an heir-at-law not otherwise provided for, is, as against the remainderman, entitled to maintenance. SIR JOSEPH MAWBEY being seised of certain freehold and copyhold estates, subject to various charges thereon, and to the payment of several annuities, by his will, dated the 11th of October, 1792, gave and devised the same, to the use of Thomas Wood and Maurice Swabey their executors administrators and assigns for the term of 500 years, upon trust to raise money for the payment of certain portions to his children, and also if necessary for the payment of his debts and legacies, and after the determination of the said term of 500 years, the *said Havelock v. Havelock (1881) 17 Ch. D. 807, 50 L. J. Ch. 778. PLUMER, [167] [ *168] BURGES v. MAWBEY. [169] testator devised the premises, to the use of his son Joseph Mawbey for life, remainder to trustees and their heirs during his life to preserve contingent remainders, remainder to the use of the first and other sons of the said Joseph Mawbey the son successively in tail male, remainder to the use of any other son or sons of the said testator by any future wife successively in tail male, remainder to the use of the first and other daughters of the said Joseph Mawbey the son according to seniority in tail mail, remainder (after divers interposed estates tail to other persons) to the use of the heirs of the said testator's own body, with divers remainders to other persons in tail, with the ultimate remainder to the said testator's own right heirs for ever. The testator by a codicil to his will appointed his son, the said Joseph Mawbey, his sole executor, and on the 16th of June, 1798, he died, leaving the said Joseph Mawbey the son, who then became Sir Joseph Mawbey, his heir-at-law. Upon the. death of the testator Sir Joseph Mawbey the son proved his will, and entered into possession of the devised estates, and shortly afterwards some of the creditors of the testator filed a bill to carry into execution the trusts of his will, and to have the usual accounts taken of his personal estate, and of the rents and profits of the estates comprised in the term of 500 years, and in the event of the personal estate proving insufficient for the payment of the testator's debts, then to have the deficiency raised by mortgage or sale of the premises comprised in the aforesaid term. [In the course of these proceedings the testator's debts were certified to exceed his personal estate by about 45,000l.] The cause was heard on further directions on the 4th of December, 1804, and was then ordered to stand over until an application should be made for an Act of Parliament, for authorising a sale of the fee simple of the testator's estates comprised in the term of 500 years, or so much thereof as should be necessary for raising so much money, as the testator's personal estate should be deficient for the payment of his debts and legacies. An Act of Parliament was accordingly obtained in the year 1805, by which the estates comprised in the said term were vested in the said Thomas Wood and Maurice Swabey and CH . 2. MAWBEY. their heirs, upon trust to sell; and it was enacted, that the BURGES purchase monies should be paid into the Bank, to be applied under the direction of the Court of Chancery, in satisfaction of the claims and demands upon the estate of the testator On the 27th of August, 1817, Sir Joseph Mawbey the son died, without ever having had any male issue, leaving two daughters only, Emily Mawbey and Anna Maria Mawbey, and having by a codicil to his will appointed his wife Lady Mawbey to be his sole executrix. Upon the death of Sir Joseph Mawbey the son, Emily, his eldest daughter, (who was then an infant) became tenant in tail of the devised estates; she died on the 25th of March, 1819, without having been married, and before she attained the age of twenty-one years. Upon her death, her sister Anna Maria Mawbey became tenant in tail of the said estates; she intermarried with John Ivatt Brisco on the 25th of September, 1819, and attained her age of twenty-one years on the 25th of March, 1822. [The questions which arose on this petition are sufficiently stated in the judgment.] Mr. Sugden and Mr. Bickersteth for the petitioners [Mr. and Mrs. Brisco]. Mr. Agar and Mr. Moore for Lady Mawbey. The MASTER OF THE ROLLS [after recapitulating the facts of the case, said :] This cause has been reheard by the consent of the parties, for the sake of obtaining the opinion of the Court, as to the principle upon which the accounts should be taken. The petitioners contend, that Sir Joseph Mawbey the son, as tenant for life, and his eldest daughter, as tenant in tail, were respectively bound to keep down the interest of the debts. The questions therefore affect, first, the tenant for life, secondly, the tenant in tail. First, with respect to Sir Joseph Mawbey the son, tenant for life; it is not contended, that if he had paid the principal of the debts, he would not have been a creditor on the estate pro tanto; but it is said, that in paying the interest, he only did what he [170] [173] |