1833. The Earl of v. The Duke of BOROUGH. testamentary writing or writings whatsoever, then in trust that they the said Lord Charles Spencer, Lord Robert Spencer, William Lord Auckland, and James SHAFTESBURY Blackstone, or the survivors or survivor of them, or the executors or administrators of such survivor, do and shall lay out and apply the money so to be raised as aforesaid, or so much thereof as to my said trustees or trustee for the time being shall seem requisite in aid of my said personal estate, towards satisfaction and discharge of such debts, funeral and testamentary expenses, and legacies as aforesaid, and do and shall lay out the surplus (if any) of the money so to be raised as aforesaid; and if my said personal estate (exclusively as aforesaid) shall be adequate for the purposes hereinbefore mentioned, then the whole of such money in the purchase of other manors, lands, or hereditaments, to be situate in England, and to be of a clear indefeasible estate of inheritance in fee simple in possession, or of any lands or tenements of a copyhold or leasehold tenure convenient to be held therewith; and do and shall, with all convenient speed, settle and assure, or cause to be settled and assured the hereditaments so to be purchased as aforesaid, to such of the uses, upon and for such of the intents and purposes, and with, under, and subject to such of the powers, provisoes, and declarations hereinbefore limited, declared, and expressed of and concerning the hereditaments which shall be sold in pursuance of this present power, as shall be then capable of taking effect, or as near thereto as the nature of the hereditaments to be purchased will admit of; yet so nevertheless, that if any of the lands so to be purchased shall be held by lease or leases for years, the same shall not vest absolutely in any person or persons entitled by virtue of the limitations hereinbefore contained to any estate tail therein, if such person or persons shall die under the age of twenty-one VOL. II. years 1 1833. The Earl of years without leaving issue male of his, her, or their body or respective bodies, but yet such person or SHAFTESBURY persons shall, during his, her, or their life or respective บ. lives, be entitled to the rents, issues, and profits of such lands so held by lease or leases for years as aforesaid. The Duke of MARL BOROUGH. And my will is, that if any of the lands so to be purchased shall be held by lease or leases for lives or for years, proper provisions shall be inserted in the settlement to be made thereof as aforesaid, for renewing and keeping on foot such lease or leases from time to time as occasion shall require. And I do hereby direct that the fines, fees, and other expenses attending any such renewals or renewal as aforesaid, shall from time to time be defrayed out of the rents, issues, and profits of the lands to be comprised in such renewed lease or leases respectively." The testator, being entitled to many leasehold estates of considerable annual value, held partly for lives and partly for terms of years, proceeded by his will to devise and bequeath the same leaseholds in the following words:" And I give and bequeath all my messuages, lands, tenements, and hereditaments which are held by me under any leases for lives or for any term or terms of years either absolutely or determinable upon the death of any person or persons, with the appurtenances, and which are not hereinbefore devised, and all my estate and interest therein, subject to the rents, covenants, and agreements reserved and contained in the several leases under which the said premises are holden, to the said Lord Charles Spencer, Lord Robert Spencer, William Lord Auckland, and James Blackstone, trustees, their heirs, executors, administrators, and assigns, in trust from time to time to renew and keep on foot the leases of the same leasehold premises, and out of the rents, issues, and profits of the same premises to pay the 1833. บ. The Duke of BOROUGH. the fines, fees, and other expenses attending such renewal. And I do hereby declare my will to be, that my The Earl of said trustees or trustee for the time being shall stand SHAFTESBURY and be possessed of all the said leasehold premises, subject to the trust hereinbefore declared thereof, upon such trusts, to and for such intents and purposes, and with, under, and subject to such powers, provisoes, and declarations as will nearest and best correspond with such of the uses, trusts, intents, and purposes, powers, provisoes, and declarations as are hereinbefore by this my will expressed and contained of and concerning the freehold and copyhold estates herein before devised to my said son George Marquis of Blandford for his life in possession as aforesaid, so far as the different natures of the property and the rules of law and equity will admit. Provided nevertheless, that the said leasehold premises for years shall not vest absolutely in any person or persons entitled by virtue hereof to an estate tail in possession in the said freehold and copyhold premises, if such person or persons shall die under the age of twenty-one years and without leaving issue male of his her or their body or respective bodies; but nevertheless such person or persons respectively shall, during his or her life or respective lives, be entitled to the rents, issues, and profits of the same leasehold premises." The testator himself was one of the lives inserted in two of the most valuable leases, and after the death of the testator, the trustees renewed those leases by adding a new life in the place of the testator, and paid, at certain intervals, for the fines of such renewals two sums amounting together to about 14,000l. One other lease only, which was of inconsiderable value, was held for lives, and in this the testator's life was not inserted. About seventeen other leases were held for terms of years. The annual income of all the leaseholds amounted 1833. to little more than 40007. In the prior proceedings of the cause, a receiver had been appointed of the rents of The Earl of SHAFTESBURY the leasehold estates, and out of those rents the trustees had paid the fines of all renewals without prejudice to the question on what fund the expenses of fines and renewals should fall. V. The Duke of BOROUGH. The questions now before the Court upon the Master's report with respect to such renewals were, first, out of what fund the fines and expenses of the renewals ought to be paid; and, secondly, whether any and what apportionment of the fines and expenses of renewals was to be made between the tenant for life, and the persons entitled in remainder. Upon the general question as to the apportionment of the payment of fines upon renewals between the tenant for life and the remainder-man, the same course of argument was pursued, and the same authorities were cited in this case as in the preceding case of Playters v. Abbott. Mr. Tinney and Mr. J. Romilly, for the Marquis of Blandford and Lord Sunderland, his eldest son, commented upon the particular provisions of the Duke of Marlborough's will (an instrument comprised in seventyeight brief sheets), and they relied upon the language of those provisions, and upon the order of the limitations, as manifesting the testator's intention to relieve the corpus of his estates from the fines payable on the renewal of his leasehold estates as well for lives as for years, and to throw the burthen of the renewals on those who should be successively entitled to the rents and profits. The testator had given his leasehold estates, as well for lives as for years, to trustees, upon trust in the first place 1833. The Earl of There was a SHAFTESBURY place to renew and keep on foot the leases, and out of the rents and profits of such leasehold estates to pay the fines and other expenses incidental to renewal. previous limitation in strict settlement of the testator's freehold and copyhold estates; and out of these freehold and copyhold estates a term of 300 years was created for the payment of the testator's debts, and other trusts mentioned in the will; and a power was given to the trustees of this term, who were the same trustees to whom the leaseholds were limited, to sell such portion of the freehold and copyhold estates as they might think fit, and, after satisfaction of the trusts, to invest the surplus in the purchase of other freehold and copyhold messuages, or of renewable leaseholds, to be settled to the same uses as the devised estates; and if the trustees should think fit to purchase renewable leaseholds, they were directed to keep the leases on foot out of the rents and profits of the leasehold premises so to be purchased with the produce of sale. If the trustees had exercised their power by purchasing renewable leaseholds, could it be contended, upon these limitations, that it was the intention of the testator that the expense of the renewals should be thrown upon the corpus of the estate, and no greater burthen imposed upon the tenant for life than that of paying the interest of the fund raised for renewals? The primary intention of the testator was, that the leases of his renewable leasehold property should be kept on foot out of the rents and profits of that property; and when he proceeded to settle his leasehold estates, he settled them upon the same trusts which applied to his freehold and copyhold estates, but subject to the previous trust as to the renewals, which over-rode all beneficial interest in the leasehold property. It was plain, therefore, that he meant to provide for the renewals without any diminution of the corpus of his estates, and to throw the burthen of them upon such persons v. The Duke of BOROUGH. |