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1833.

PLAYTERS

u. ABBOTT.

produce of the whole must be first applied to the purpose of the renewals. In White v. White, the testator expressly limited the charge upon his estate for renewals to the sum of 500l., and as the remainder-man called for the renewal, it was held that he was not entitled to contribution from the tenant for life. In Montford v. Cadogan (a), the trustees, who had neglected to renew, were held to be liable as for a breach of trust, but the assets of the tenants for life were declared to be in the first place applicable to the payment of the fines in proportion to the period of their enjoyment. Milsintown v. Lord Portmore is a direct authority against throwing the charge upon the corpus of the estate, and is, indeed, a stronger case against the tenant for life than the present, inasmuch as a larger discretion was given to the trustees; but it was held that such discretion did not give the trustees an arbitrary power to preserve or destroy the estate, and that it could not be exercised to the prejudice of the remainder-man. As to the direction to pay the annuity to the widow, and after her decease to pay the clear rents and profits to the daughter for her life, this direction is subject to the previous trust for satisfying the fines upon admission.

Mr. Bickersteth in reply.

Nov. 6.

The MASTER of the Rolls. Where a testator indicates an intention that fines on the admission to copyholds, and on the renewal of leases, should from time to time be paid, in order to maintain a permanent interest in the property for the benefit of those to whom he has successively limited

his (a) 17 Ves. 485. 2 Mer. 3. and 19 Ves, 635.

1833.

PLAYTERS

V. ABBOTT.

his fee-simple estates, and has not described the fund out of which such payment should be made, the general principles of equity require, and the course of authority bas settled, that the tenant for life and those in remainder shall bear the burthen of those payments in the proportion of the benefits which they actually derive from such admissions or renewals. Where a testator, having the same purpose, expressly provides a fund for such payments, the question no longer depends upon general principles of equity, but, as to the manner of raising the fines and the contribution of the tenant for life, is to be determined by the intention of the testator in both respects, as it is to be collected from the whole will.

In this case the devise is of freehold as well as copyhold property; and the direction of the testator is, that the fines shall be raised and levied by and out of the rents and profits, or by sale or mortgage, or other disposition of the freehold and copyhold property, or any part of it. The rents of the freehold and copyhold property amount together to about 8001. a year, and the fines on the copyholds, immediately to be paid in order that the trustees might be presently in possession of the rents and profits to be derived from them, amounted to 14001. besides the expenses. No rents and profits could accrue before these fines were demandable; and it is, therefore, reasonably to be inferred, that the testator intended to give authority to the trustees to raise and levy the sum by sale or mortgage. It is also to be observed that the testator, out of the annual rents and profits, gives an annuity to his widow in lieu of dower, which, becoming due from his death, could not possibly wait for satisfaction until the fines were provided for out of the annual rents and profits. It is true that the testator in the same passage refers to repairs and land-tax, and other outgoings, which are in

1833.

PLAYTERS

their nature annual payments to be made out of annual rents and profits; but it is to be considered that the testator's true meaning was that the trustees should use the power of sale or mortgage where the purpose could not be answered by annual rents and profits, and should, out of annual rents and profits, discharge annual payments.

ABBOTT.

The next question to be considered is, whether the testator in his will has intimated an intention that the tenant for life should in any manner contribute to the expenses of the fines, beyond keeping down the annual interest of the mortgage. Suppose the trustees had exercised their clear authority to sell a part of the freehold for the purpose of raising the amount of the fines, is there in this will any indication of an intenion on the part of the testator that the trustees should retain from the tenant for life future annual rents, in order to repurchase freehold equal in value to that which was sold, or any part of it?

The testator, after giving the annuity to his widow in lieu of dower, and subject to the annual interest or deduction which might be imposed by sale or mortgage, directs the trustees to pay the clear annual rents and profits of the devised premises to his daughter and only child, for her sole, separate, and exclusive use and benefit. This direction is wholly inconsistent with any intention on the part of the testator that a part of the annual rents and profits should be reserved from the daughter's use, in order to contribute towards the principal of the mortgage.

Upon the whole, therefore, my opinion is, that it was the intention of the testator that the fines and fees should be raised by sale or mortgage, and that the daughter should bear no other burthen in respect of such fines than the interest of the mortgage.

1833.

The Earl of SHAFTESBURY v. The Duke of

MARLBOROUGH.

ROLLS. July 27.

Aug. 3. Nov. 6. 18.25.

THE late Duke of Marlborough devised certain free- Where the first 1 hold and copyhold estates to the use of trustees trust of lease

hold property and their heirs, in trust for his son, then Marquis of held for lives Blandford, for his life, with remainder to his grandson, the eldest son of the said Marquis of Blandford for his fines on re

newals out of life, with remainder to the first and other sons of his the rents and said grandson in strict settlement, with divers remainders profits, and

the next trust over.

is for the benefit of

those who in These freehold and copyhold estates were subjected strict settle

the ment take by the testator to a term of 300 years, limited to the same trustees, and the survivors of them, &c., upon copyhold protrust for the payment of his debts, and upon other the same will, trusts mentioned in the will; and a power to sell for the expenses

of renewal those purposes and to invest the surplus was given to are incidental the trustees of the term in the following words:

ods. to the lease

hold property, “Provided always, and I do hereby declare that it shall and fall upon

those who be lawful for the said Lord Charles Spencer, Lord

from time to Robert Spencer, William Lord Auckland, and James time are en

titled to the Blackstone, and the survivors and survivor of them, and

possession of the executors and administrators of such survivor, at it under the any time or times within twenty years after my decease, at their and his free and uncontrolled discretion, to make sale and absolutely dispose of any part or parts of the said manors, messuages, lands, tenements, and other bereditaments hereinbefore devised to the said George Marquis of Blandford for his life in possession as aforesaid, unto any person or persons whomsoever, either by public auction or private contract, for such price or prices and in such manner as to the trustees or trustee

will,

for

BOROUGH.

1833. for the time being, concerning this present power, shall

seem reasonable and proper. And it is my will, that SHAPTESBURY for the purpose of carrying into effect any such sale or

ke of sales as aforesaid, it shall be lawful for the said Lord MARL Charles Spencer, Lord Robert Spencer, Willian Lord

Auckland, and James Blackstone, and the survivors and survivor of them, and the executors or administrators of such survivor, by any deed or deeds, instrument or instruments in writing, to be sealed and delivered by the trustees or trustee for the time being, concerning this present power, in the presence of, and to be attested by, two or more credible witnesses, absolutely to determine, revoke, and make void all and every or any of the uses, estates, trusts, powers, and provisoes hereinbefore limited, declared, and expressed of and concerning the hereditaments so to be sold; and by the same or any other deed or deeds, instrument or instruments in writing, to be sealed and delivered and so attested as aforesaid, to limit, declare, direct, or appoint any use or uses, estate or estates, trust or trusts of or concerning the hereditaments, the uses of which shall be so revoked, which it shall be thought requisite or expedient to limit, declare, direct, or appoint, in order to effectuate any such sale or sales as aforesaid. And I do hereby direct that the trustees or trustee for the time being, concerning this present power, shall stand possessed of the money to be produced by any such sale or sales as aforesaid, upon the trusts following: (that is to say,) if my personal estate, exclusive of my leasehold estates for years, and such shares in the Oxford Canal, as I shall or may happen to die possessed of, and exclusive of such other part or parts of my personal estate as is or are specifically bequeathed, shall not be sufficient for the payment of my just debts, funeral and testamentary expenses, and the legacies which shall or may be given by this my will, or by any codicil or codicils, or by any other

tes.

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