1833. The Earl of SHAFTESBURY v. The Duke of as should be successively entitled to the rents and profits of the leasehold estates. Mr. Wray, for General St. John, the assignee of the Duke of Marlborough, said, that the effect of the construction contended for on the part of the tenants in remainder, would be to throw the whole charge of the fines and expenses payable upon renewals on the annual rents and profits of the leasehold property. Now those annual rents and profits did not amount to more than one third of the sum payable for fines immediately on the death of the late duke. It could never have been the intention of the testator, therefore, to throw the whole burthen of those fines upon the tenant for life. Mr. Pemberton, for the trustees. Mr. C. Romilly, for the Duke of Marlborough. Where the testator has expressed a general intention that his leasehold property should be renewed and held in succession by those entitled to freehold property which he has devised in strict settlement, but has not expressed the manner in which the fines and expenses of renewals are to be provided for, it is now settled upon equitable principles that such expense of renewals must be borne by the tenant for life, and those in remainder, in the proportion of the benefit which they respectively derive from such renewals. The old rule was, that the tenant for life should in such cases contribute one third, and that two thirds should be borne by those in remainder. This rule appears to have been first departed from from by Lord Thurlow in the case of Nightingale v. Lawson (a), and upon plain reason. Where the tenant for life was of an age which, considering the probable duration of life, made the value of his life equal to one third of the property, this rule might with some reason be applied; but where he happened to be of a much more advanced age, as for instance eighty years old, it could not be just and equal that he should bear the same proportion of the expense of renewal as if he were only of the age of thirty. In departing from this rule, it might at first sight seem to have been proper that the proportion of the expense of renewal which should fall upon the tenant for life should be estimated according to his actual age, and the probable duration of his life; but accident might render this new rule unequal and unjust to the tenant for life, or to the remainderman, as the tenant for life happened to survive a longer or a shorter period than that which might be expected according to the probable duration of his life. The principle adopted by Lord Thurlow is altogether equitable, that the proportion to be borne by the tenant for life should depend upon the actual benefit which he derived from the renewal; and this is now to be considered as the settled rule of the Court. The case now before the Court does not, however, depend upon the general principles of equity, because here the testator has directed the mode in which the expense of the renewals is to be provided for, namely, out of the rents and profits of the leasehold premises generally; and the question is, what was the intention of the testator by this direction, and this intention is to be collected not from the particular expressions only, but from the whole contents of the will. (a) 1 Bro. C. C. 441. The 1833. The Earl of v. The Duke of MARLZOROUGH. The case of Stone v. Theed (a) has some bearing upon the present question: there the testator devised and SHAFTESBURY bequeathed freehold, leasehold, and other personal property to trustees, upon trust, after paying certain annuities, to pay the residue of the rents and profits to one for life, with remainders over, and he directed his trustees from time to time to renew the lease and add new lives if they could obtain such lease; and in that case Lord Thurlow inferred it to be the intention of the testator that the expense of renewal should be paid out of the income of the whole property, and that the tenant for life was not bound to make any contribution towards the expense of such renewal. In Allan v. Backhouse (b) the testatrix devised leaseholds for lives, and all other her real estates, to trustees and their heirs, upon trust for A. for life, with remainders over in strict settlement to the first and other sons of the tenant for life; and she directed that her leaseholds for lives should from time to time be renewed as occasion should require by and out of the rents and profits of the leasehold property, or the rents and profits of her other estates thereby devised. The testatrix died in 1785, and in 1804 one of the lives dropped on which the leaseholds were held, and the question in the cause was how the expense of adding a new life was to be provided for. The decree made by Sir Thomas Plumer directed that the expenses of the renewal should be raised by sale or mortgage of the whole devised property, and he referred it to the Master to inquire what proportion of the mortgage, as well as the interest, with reference to the benefit derived by the tenant for life, should be borne by him. This decree appears to have been confirmed by Lord Eldon, (a) 2 Bro. C. C. 244. (b) 2 Ves. & B.65. Eldon, but there is no report of the arguments which were used on the appeal, nor of the reasons upon which the affirmance of Sir Thomas Plumer's judgment proceeded. It must be observed that this decision is not strictly in unison with Lord Thurlow's judgment in Stone v. Theed; and it is not easy to understand how it was possible for the Master to state the proportion of the expenses of renewal to be borne by the tenant for life, since, according to settled principle, and the language of the decree, it was to depend upon the actual benefit which he should derive from the renewal, and which could not be ascertained until his enjoyment determined by his death. It does appear, however, by the Registrar's book, that the Master did, during the life of the tenant for life, report that a certain sum ought to be paid by him, and such report was submitted to without question. The rule of contribution between tenant for life and remainder-man, according to their actual enjoyment, has, however, this difficulty, that in the cases of leaseholds for life, the time of renewal being necessarily uncertain, there are no means of ascertaining the proportion to be borne by the tenant for life until his death. In the case of leaseholds for years, when the period of renewal is certain, the trustees may retain an annual sum out of the rents and profits from the tenant for life, so as to insure a due contribution on his part towards the expense of renewal, as in the case of Montford v. Cadogan (a); but this course cannot be adopted where the renewals depend upon the uncertainty of life. Where, in the case of leases for lives, the renewal is to take effect immediately upon the death of the testator, the trustees must, in the first place, have recourse to a (a) 19 Ves. 635. mort 1833. The Earl of SHAFTESBURY บ. The Duke of MARL BOROUGH. mortgage, since no rents can have accrued; and Lord Eldon observes in White v. White, that in such a case there seems no other mode of obtaining from the tenant for life his proportion of the expenses of renewal according to his enjoyment, than by compelling him to give security to that effect. If such security be not given, the remainder-man could only resort to the uncertain assets of the tenant for life; and neither of these modes is without objection. In the present case, the testator having provided a fund for the expenses of the renewal, by an expression that may be considered to be ambiguous, the true intention of the testator with respect to that fund is to be collected from the whole will. His disposition of the leasehold estates is to the same trustees to whom he had before limited his freehold and copyhold property, and the first trust declared is, that the trustees, by and out of the rents and profits of such leaseholds, shall from time to time renew the several leases as occasion may require, and subject thereto he limits his leasehold property to accompany his freehold and copyhold in the same strict settlement. The trust as to the renewals, therefore, over-rides all beneficial interest in the leases, and such interest cannot take effect until this trust be performed; and in this respect it is distinguishable from all other cases that have occurred. The trust, therefore, like the expense of an embankment referred to by Lord Thurlow in the case of Stone v. Theed, appears by the intention of the testator to be considered as an incident to the property, which is from time to time to fall upon those who happen to be in possession of it under the will. An argument has been urged here from the circumstance that the respective renewals became necessary immediately |