The bill was filed by Dame Ann Playters, the widow of the testator, and Robert Moore and Elizabeth Wright Moore his wife, the daughter of the testator, against the trustees Abbott and Chapman, and all other persons interested in the testator's estate under the will, praying the establishment of the will, and the directions of the Court as to the execution of the trusts. It appeared, by the answer of the trustees, that the rents of the freehold and copyhold estates of the testator amounted together to about 800l. a year, and that the fines to be paid immediately on the admission of the trustees to the copyhold estates amounted to 1400l., besides the expenses. Mr. Bickersteth, for the Plaintiffs. Two questions are raised by this will: first, as to the fund out of which the fines due on the admission of the trustees to the copyhold part of the property are to be paid; and, secondly, whether any and what contribution is to be made by the tenant for life towards the payment of such fines and expenses. It has been decided that, where a testator directs a renewal of leaseholds out of the rents and profits of his estates, such a direction is equivalent to a power to raise the gross sum necessary for the payment of the fines upon renewal by sale or mortgage; the ground of this decision being that, as the sum to be raised must be paid immediately, whenever the occasion for renewal arises, it cannot be intended that it should be raised out of the annual rents and profits: Allan v. Backhouse. (a) In this case the testator directs that the sums which may from time to time be necessary to pay the fines upon admission to his copyhold estates be raised out of the rents and profits, or (a) 2 V. & B. 65. by 1833. PLAYTERS v. ABBOTT. 1833. PLAYTERS v. Аввотт. by mortgage, sale, or other disposition of the whole estates devised by his will. If the words out of the rents and profits, without more, give a power to the trustees to raise by mortgage or sale, the addition of the words to which they are equivalent cannot alter the force of the prior expressions. But, if the raising out of rents and profits is to be considered as contradistinguished from the raising by mortgage or sale, so that "rents and profits" must necessarily be taken to mean annual rents and profits, then, reddendo singula singulis, these annual rents and profits will be properly applicable to the payment of the further charges which the testator goes on to specify, namely, repairs, land-tax, quit-rent, and other annual outgoings, while the gross sums immediately required for the payment of fines upon admissions will be properly raisable by mortgage or sale of the testator's estates. Where a fund can be raised by mortgage, a court of equity will not permit the interests of the reversioner to be defeated by a sale. Assuming, therefore, that the fund, out of which the fines are from time to time to be paid, is to be raised by mortgage, the next question is, whether this charge is to be borne by the tenant for life, or by the persons entitled in remainder; and if by both, in what manner the charge is to be apportioned; a subject which has been frequently discussed in this Court, but which is still in an unsettled and unsatisfactory state. The rule adopted in the old cases was, that the tenant for life should pay one third, and that the remaining two thirds should be paid by the person entitled in remainder: Ballet v. Sprainger (a), Cornish v. Mew. (b) This rule was manifestly arbitrary, and unequal in its operation, inasmuch as a tenant for life of advanced years would pay more than his fair proportion, proportion, while a younger life would probably reap the whole benefit of the renewed term to the great prejudice of the remainder-man. The rule was, for this reason, disapproved of by Lord Hardwicke in Verney v. Verney (a); and Lord Thurlow, in Nightingale v. Lawson (b), introduced a sounder principle; namely, that the burthen should be borne by the parties in proportion to the benefit which they enjoyed. In Stone v. Theed (c), the old rule is considered as exploded; and the general principle, that the proportion should follow the enjoyment, is again laid down by Lord Thurlow. In Buckeridge v. Ingram (d), it is said by Lord Alvanley "the rule is clear that, wherever a lease that requires renewal is entailed, and a partial interest is given to any one, that person is not to bear the whole, but will only have to keep down the interest of the money advanced." In White v. White (e), this subject underwent much discussion in that case the tenant for life was also entitled to the reversion after an estate tail; but Lord Alvanley, notwithstanding that circumstance, adhered to the rule that the tenant in possession was only to keep down the interest of the sum raised for renewal. At the rehearing of this cause Lord Eldon (g) did not accede to this rule without modification; but he considered it applicable to cases where the remainder-man takes the estate subject to a mortgage or charge upon the corpus of the estate: and the present case may be considered, as well upon the authority of Allan v. Backhouse (h) as upon the language of the particular instrument, to be a case of that description. In Milles v. Milles (i), the fines were decreed to be raised out of the rents and profits, but there : (a) 1 Ves. sen. 428. (c) 2 Bro. C. C. 244. (e) 4 Ves. 24. (g) 5 Ves. 554. and 9 Ves. 560. (i) 6 Ves. 761. 1833. PLAYTERS v. Аввотт. 1833. PLAYTERS v. ABBOTT. there the circumstances were extremely special, the renewals being made annually; and the tenant for life had the means of recouping himself, as he was declared entitled to the fines payable upon the granting of underleases. In Randall v. Russell (a), it was held that the persons entitled in remainder under the trusts of a will should contribute to the fine paid by the tenant for life on the renewal of a college lease, in such proportions as should be settled by the Master. In Allan v. Backhouse, which was confirmed on appeal (b) by Lord Eldon, Sir Thomas Plumer directed a reference to the Master to inquire what proportion of the capital, as well as the interest, should be paid by the tenant for life with reference to the benefit derived by him. In Milsintown v. Lord Portmore (c), it was held that a discretionary power of renewal given to trustees was a power which they could exercise only for the benefit of the cestui que trusts, and that they could not throw the burthen of the fines paid for renewal upon the corpus of the estate, to the prejudice of the remainder-man. Such is the state of the authorities on this subject; and the current of these authorities seems undoubtedly in favour of the principle that the tenant for life ought not to pay more than the interest of the sum to be raised for payment of the fines. If, however, the Court should be of opinion that the tenant for life is to bear a proportion of the capital sum to be raised for the payment of the fines upon admission, the question arises, how that proportion is to be settled between the tenant for life and the remainder-man? The principle is admitted, that the proportion in which the tenant for life should contribute is according to his enjoyment; and the fair amount of his contribution upon that principle is capable of being reduced (a) 3 Mer. 190. (c) 3 Mad. 491., and 5 Mad. 472. reduced to a certainty by insuring the lives of the trustees who are admitted from time to time, so that, upon the death of the trustees, a fund might always be ready to answer the payment of the fines, the person in actual possession paying the annual premiums upon the policy. It is clear, in this case, that the charge cannot be raised out of the annual rents and profits, for the lord will not wait for his fine; and there are provisions in the will, such as the direction to pay to the widow a clear annuity of 250l. out of the rents and profits, and after her death to pay the clear rents and profits to the daughter for her life, which are wholly inconsistent with an intention on the part of the testator that the fines should be satisfied otherwise than by a charge on the corpus of the estate. Mr. Tinney, contrà. The trust is here not merely to pay and satisfy the fines upon admission to the copyholds, but to keep the premises in repair, and to pay the land-tax, quit-rents, and other annual outgoings; and, though the testator gives the trustees a discretion to satisfy these charges, either out of the rents and profits, or by mortgage or sale, the inference is, as he has classed the fines upon admission to the copyholds with charges in their nature payable out of the annual rents and profits, that he meant the whole to be borne by the tenant in possession. In Stone v. Theed, where the testator directed his trustees to pay the fines of renewals, and gave his freehold, leasehold, and personal property, charged with annuities, in trust to pay the rents and profits to his sister for her life, Lord Thurlow held that the intent of keeping up the estate must be understood to be paramount to the intent of making a provision for the first taker, and he accordingly decided that the produce 1833. PLAYTERS v. Аввотт. |