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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 8001. a year, and that the fines to be paid immediately on the admission of the trustees to the copyhold estates amounted to 14001., 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
by (a) 2 V. & B.65.
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. Ver. (6) 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, Pr. Ch. 62.
6) i Ch. Ca. 271.
proportion, while a younger life would probably reap
there the circumstances were extremely special, the
reduced (a) 3 Mer. 190.
(c) s Mad. 491., and 5 Mad. (1) Jaa 631.
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