COURT OF APPEAL.

Equity Courts.

COURT OF APPEAL IN
CHANCERY.

Reported by C. H. KEENE, Esq. of Lincoln's-inn,
Barrister-at-Law.

March 6 and 16.
STONE v. GODFREY.

cence-Waiver.

Equitable seizin-Tenancy by the curtesy-AcquiesIn 1826 the plaintiff, as next friend of his daughter, then an infant, instituted a suit, to which he was not a party, in which she claimed to be equitably entitled in fee to two fourth parts of certain freeholds vested in trustees, he having been previously informed that there was a question whether he was not entitled to it as tenant by the curtesy. A decree for partition, whereby two-fourths of the estate was allotted to his daughter in severalty, was obtained in 1830; and it was also thereby declared that the daughter, on the death of her mother, became entitled to "two-fourths of the estates in fee, and to the rents and profits thereof." In 1833 the father still acting as next friend for his daughter in the suit, obtained an order of the court approving of a deed of partition containing a contegance by the trustees of two-fourths of the estate in question to the daughter in fee, and declaring that the father, his executors, &c. should have the use of the same for ten years if the daughter should so long kee and remain an infant and unmarried, and from and after the happening of either of those events to the daughter in fee; and providing that the rents received by the father should be applied at the diseretion of the father towards the maintenance of the daughter. This deed was acted upon until the daughter attained the age of twenty-one in 1813; after which period, until her marriage without her father's conSent in 1817, he accounted to her for the rents. The daughter and her husband subsequently brought an etment against the father, who thereupon, in 1852, tal a bill, alleging that he was entitled to the estate as tenant by the curtesy, and that his title was not concluded by the suit commenced in 1826, to which he was at a party, inasmuch as it had been filed by him as next friend in ignorance of his own right to purtesy. Held, affirming the decision of the court below, dissolving the common injunction obtained by the plaintiff, that he was not entitled as tenant by the curtesy, inasmuch as the proceedings he had taken, and his conduct from the Rony of the bill in 1826, were equivalent to a waiver, as ist his daughter and her husband, of his right to curtesy; and his representations to his daughter were of sch a character as that the marriage must be condered to have been contracted by her upon the faith of their correctness. This was an appeal from the decision of Stuart, V.C. a the 14th Dec. last, dissolving the common injuncwhich was granted to stay the prosecution of an on of ejectment by the defendants, Mr. and Mrs. Godfrey, and dismissing the bill without costs. The s of the case are fully stated in 22 L. T. Rep. 208, Paie the case is reported as decided in the court below. Le, Q.C., and Fooks, for the appeal.

Glisse, Q.C. and F. A. Morris, for the respondent. Lord Justice KNIGHT BRUCE. This suit comenced in the year 1852, had and has for its sole ect the establishment of an alleged title of Mr. bez Stone, the only plaintiff, to an equitable liferest in some lands in Surrey, of which, seemingly, the annual value is between 20%, and 401. This he aims as tenant by the curtesy, having survived his e, the mother, by him, of the defendant Mrs. rey, whom I collect to be his only child. The Aber of the two defendants is her husband, who came so in the year 1847, when she was between enty-four and twenty-six years of age, her birth aving been in the year 1822; and the defendants par to be, in right of the lady as tenant in fee aple or tenant in tail, entitled legally as well as tably to the lands, either free from any other title claim, or subject only to the demand of Mr. Stone, aue, as I have said, in the present suit-a demand, wever, which is absolutely at variance and inconsisent with the decree of the court made at the Rolls in

he year 1830, in a cause in which Mrs. Godfrey, then course a child under nine years of age, was the laintiff, and John Kemp and others were defendants. Mr. Stone is or was tenant by the curtesy, or enled to be so, not only was the Rolls' decree erteous, as excluding in Mrs. Godfrey's favour that ged right-that alleged title-but the suit itself which the decree was made (a suit for a partition, mong other purposes) was defectively and wrongly structed; for Mr. Stone was not a plaintiff, was so not a defendant in it, though his alleged title, if existed, and, if of any force or validity it did xist, and was of equal force and validity, not only fore and when the decree was made, but before and hen the bill on which it was pronounced was filed. ow it appears from what I have said that the decree receded by more than twenty years the commenceent of the present suit. When was Mr. Stone, howver, first aware of the decree? The answer must be

VOL. XXIII.-No. 594.

that he was so as soon as it was made. He in fact spoken to each of these defendants of the said
asked and obtained it as the next friend of his estate as being the property of defendant Eliza-
daughter, which character he filled in the cause, and beth Godfrey, and said that he would not
throughout the cause during her minority; so that wrong defendant Elizabeth Godfrey of one farthing."
if it be assumed, as, upon the hypothesis of our The question, or the next question, then is, upon the
knowing the whole truth, I do assume, that he, Mr. effect of the whole evidence as it stands; or, in other
Stone, at any time between the minority and the words, whether so much of it as is favourable to the
marriage of his daughter, had filed a bill against her defendants on the point of the faith, the belief under
for the purpose of obtaining substantially the same which they married, and the plaintifi's liability to
relief as he is now asking, and upon the same have that faith, that belief, treated as the legitimate
ground, he would have been entitled to suc- consequence of his acts and conduct, is overbalanced
ceed in his suit. I must, to say the least, re- by the residue. And I am of opinion that it is not-
present myself as not by any means satisfied that the division of it which I have called the third ap-
now he is not barred by the lapse of time between the pearing to me, on consideration and a just estimate
year 1830 and the year 1852; and this whether laying of its several parts, rather to support and strengthen
or not laying stress on that order of the 3rd July, and than to weaken the inference which, as I have said, I
the conveyance of the same year-two documents, should have drawn from the other two alone. Mr.
however, of which neither can be disregarded. By Stone alleges, and probably with truth, that Mrs.
the conveyance, under which the legal fee in the land Godfrey's marriage was without his sanction, against
is now vested in Mrs. Godfrey, the term of years in his wish, and clandestinely. But she had been ten
possession was limited to him as a trustee for her. years marriageable; he had not acted on the venerable
The term ended with her minority; nor was the con- precept, "Marry thy daughter, and so shalt thou
veyance executed by him. Still it had, in 1833, the have performed a weighty matter;" and I suppose
sanction and approval of a Master in Chancery; and that, in an artisan's family, not less than in others, a
equally must be taken to have had, in the same year, maiden of twenty-five may not unreasonably consider
Mr. Stone's sanction, acceptance, and approval also. that she has been single long enough. Now in the
Nor can he be deemed to have been, when his daugh- house of the widower, Mr. Stone, was living, not
ter attained her majority, in receipt of the rents of only the father and daughter, but also a bachelor,
the land adversely to the decree of 1830, or to that Mr. Godfrey, who seems to have made himself intel-
conveyance. It seems to me, indeed, that, having ligible to Miss Stone, and whom, viewing with appro-
accepted a trusteeship in possession under it, he be-bation, she may well have said to herself, "It is time
came and is disabled from saying for his own benefit, that I should be married; I am of a steady age; I
or in his own defence, that he has been in the re- know that I have a fortune, because my father has
ceipt of the rents adversely to her at any time since told me so; but he manages, and seems pleased with
the decree of 1830, or adversely to her husband at managing; will he approve of giving it up? May.
any time since her marriage. My impression, I re- he not consider a son-in-law likely to interfere and
peat, is that, as against the present plaintiff, it must
be troublesome. Under all the circumstances I think I
be considered that such possession as at any time had better marry Mr. Godfrey and tell my father
since 1830 he has had of the lands in dispute has been afterwards." This was natural enough, and it was
a possession upon the account and on behalf of his equally natural that when the father, after her mar-
daughter till her marriage, and of her husband since. riage, denied her right to the property and claimed
But there is more. The evidence in the cause that it, she should say to him: "You made me believe it
we are now deciding divides itself into three parts. was mine; I should not have married without the
First, documents admitted, and therefore undisputed; means of beginning the world; I have taken an irre-
secondly, proof of facts not denied nor disputed; thirdly, vocable step in reliance on the truth of your assertion,
proof against and in support of the truth of alleged and that must be irrevocable too." Finally, this suit
facts, asserted upon one side and denied on the other. appears to me to be ill-founded. My learned brother
Now, had the third division been absent, so as to also thinks, as I do, that it would not have been right
reduce the evidence before us to the two others, I not to dismiss the bill. The bill was dismissed, and
should have considered it a proper inference from
we both consider that the appellant must pay the
them, and a just conclusion to hold, that before the costs of the appeal. There is, however, a slight dif-
present defendant's marriage one or both of them had ference of opinion between us as to the nature other-
been, by the acts and conduct of the present plaintiff, wise of the order proper now to be made; and in that
induced to suppose and believe, and did accordingly state of things the view of each is that our order
upon that foundation suppose and believe, the lands in should be merely one dismissing the appeal with costs.
question to have become the estate of the defendant, His view must, of course, prevail. My learned
his daughter, in possession, by right upon her majority, brother does so hold, and, therefore, so it will be.
if not at an earlier period, and to have continued to be-
long to her rightfully in possession down to the time
of her marriage, and at that period; that the defen-
dants married on the faith and in the understanding
of the true state of her rights being so; and that
therefore it was impossible for the plaintiff after the
marriage to institute successfully such a suit as the
present against them. Upon the hypothesis, conse-
quently, that I have just been stating, I should have
thought it right to dismiss the bill, and this on prin-
ciples and on authorities, of which, if not all, some of
considerable weight are mentioned in the judgment
pronounced by the M. R. in the recent case of Money
v. Jordan, 15 Beav. 372, in which he held, as I
hold, this ground of defence sufficiently put in
issue by the passages of the defendant's answer
that I shall now read: "And this defendant, Eliza-
beth Godfrey, says, and this other defendant says
he believes, that the said plaintiff always during
such time as defendant Elizabeth Godfrey lived
with him, and in fact up to the time of her
marriage in the year 1847, always in each balf-year
verbally accounted with the defendant Elizabeth
Godfrey for the rents and profits received by him in
respect of the said real estate; and that the said plain-
tiff was in the habit of taking or charging five shil-
lings per week for the board and lodging of defendant
Elizabeth Godfrey, and handing over to her from time
to time what he the said plaintiff stated to be the
difference between that sum and the amount of the
rents and profits which he had received for or in
respect of the said estate; and that the yearly balance
so handed over by the said plaintiff as aforesaid
generally amounted to between 8l, and 10., out of
which defendant Elizabeth Godfrey used to provide
herself with clothes. Defendant Elizabeth Godfrey
says, and this other defendant says he believes, that
no written accounts were ever given by the said
plaintiff to this defendant Elizabeth Godfrey, but
said plaintiff informed defendant Elizabeth Godfrey,
or gave her to understand, that the moneys from time
to time paid to her by him were the balance of the
rents and profits of the said lands and hereditaments,
and that up to the time of the marriage of these de-
fendants the said plaintiff always told defendant
Elizabeth Godfrey and admitted that said lands and
hereditaments were the property of defendant Eliza-
beth Godfrey, and never made any claim of right to
them on his part. Say that said plaintiff has also
subsequently to the marriage of these defendants,

Lord Justice TURNER.-The plaintiff in this case, in effect, asks of the court to raise a trust for his benefit on the legal estate vested in the defendant, and he asks this relief upon the footing of an equitable. title which accrued to him in the year 1824. The ground on which he founds his title to the relief is that, in the year 1826, he was erroneously advised that his equitable title could not be maintained; and I assume that the advice so given to him was erroneous, and that this court has power, as I feel no doubt it has, to relieve against mistakes in law, as well as against mistakes in fact. When, however, parties come to this court to be relieved against the consequences of mistakes in law, it is, I think, the duty of the court to be satisfied that the conduct of the parties has been determined by those mistakes, otherwise great injustice may be done. Parties may be erroneously advised as to the law; but they may be told on what circumstances the question of law depends, and in what mode it may be tried, and they may determine (whether the advice which they have received be well or ill founded) whether they will give up the question in favour of the party with whom it arises. Cases of this nature therefore require most careful examination, and particularly when they arise between parent and child. These considerations have led me to look very carefully into the facts of the case; and, upon examining them, I am satisfied that this plaintiff, having been made aware of the question on which his title depended, determined to waive it in favour of the defendant, his child. In the first place, the opinion upon which he acted in 1826 is in these terms:-"I am of opinion that Mr. Stone has no right or interest under the will of 1779. might have been tenant by the curtesy of his late wile's share, if she had been seised thereof; but she never was in possession or receipt of rent, either ab-. solutely or constructively, for her title to the premises was always and is still denied and treated as a nullity by them in possession. If, however, Mr. Stone thinks fit to claim the curtesy, either on the. ground of the possession of the tenants or of the trustee being the possession of his late wife, it is clear such claim will be adverse to that of his daughter, and that they cannot sue together." So that. that opinion, although it advises him he has not the estate by the curtesy, tells him the question on which that depends; that it depends on the question whether. the possession of the tenants or of the trustee is to

He

kin or otherwise to the personal estate of such daugh-
ter or daughters respectively, under the statutes made
for the distribution of intestates' effects, if such daugh-
ter or daughters respectively had then died intestate."
The question for us to consider is, whether the husband,
or those who exclusive of the husband would be entitled
under the Statutes of Distribution, is or are the person
or persons indicated in the will. If there had not
been the words "or otherwise," it would be clear that
the husband was excluded, because he could not be
included under the words "next of kin ;" but the sug-
gestion is, that the words "or otherwise," found in this
will, not ordinarily found in such limitations, may
have been expressly intended to include him, and at all
events must be so construed. I was struck with that
observation at first; but the sentence goes on, "entitled
as next of kin or otherwise, under the statutes made
for the distribution of intestates' effects." Now I
take it that, in order to come within the express words
here, the husband must show that he is a person en-
titled under some or one of the statutes made for the
distribution of intestates' effects. In my opinion, the
husband is not so entitled at all. He is entitled by a
right paramount. It may be that he is entitled to
administer under the statute of Edward III.; but the
right to distribution is a different thing. The Statutes
of Distribution, 22 & 23 Car. 2, c. 10, is in terms so
worded, that it might have included the hus-
band, not SO as to give him a right, but
to take away a right from him. That diffi-
culty having afterwards been contemplated, a
declaratory clause was introduced into the Statute of
Frauds to say that the Statute of Distributions,
22 & 23 Car. 2, c. 10, should not have that effect.
That clause was introduced to place the husband just
in the condition in which he was before passing the
statute; that is, with a right to appropriate the pro-
perty to himself by the common law, independently
of any statutes at all. He has that right now; but
in this case, in order to entitle himself under the will,
he must claim as a person coming under the descrip-
tion of "next of kin, or otherwise " entitled, and also
as a person "entitled under the statutes." I think he
is entitled to nothing under the statutes. Consider-
able light is thrown on the case by the gifts occurring
afterwards, in trust for the children of Henry. It is
not absolutely certain that the testator meant to make
the provision for the failure of issue of the other par-
ties that he did in the case of this person; but the
great probability is that he did; and, as the words
or otherwise" are omitted in the subsequent gift,
the party there must claim as next of kin, according
to the subsequent proviso. The words "or otherwise"
are not absolutely useless in the place in which
they are found; for, though it was not in the con-
templation of the parties, persons may claim under
the Statutes of Distributions who are not next of kin ;
and they are the persons who would come under those Reported by GEORGE WHITELEY, Esq., of the Middle Temple
words, or otherwise." My opinion is, that the next
of kin take, and not the husband.

under this clause must possess the qualification which it
requires, and show himself entitled as "next of kin or
otherwise" under the Statutes of Distribution; and the
question here is, whether the husband is so entitled or
not. That the Statute of Distributions does mention
persons other than the next of kin is perfectly clear;
for, by the 6th section of that statute, in case there be
no children nor any legal representatives of them (after
allotting one moiety of the estate to the wife of an
intestate), the residue of the estate is to be distributed
equally to every of the next of kindred who are in
equal degree, "and those who legally represent
them,"-so that a clear interpretation may be put upon
the will which falls in with the very expression of the
statute; but if the words "or otherwise" had not
been susceptible of this explanation, it would still be
a question whether the husband could claim under
the will without showing that he was entitled under
the statute. But by the statute of 22 & 23 Car. 2,
c. 10, the husband was expressly excluded, and the
doubt which arose out of that statute was whether it
had not taken away the common law right of the
husband; and to obviate this doubt the Statute of
Frauds (sect. 25) provided that neither the Statute of
Distributions nor anything therein contained should
be construed to extend to the estates of femes coverts
that should die intestate, "but that their husbands
might demand and have administration of their
rights, credits, and other personal estates, and re-
cover and enjoy the same as they might have done
before the making of the said Act." With regard to
the dicta of the judges in some of the earlier cases,
which have been relied on as treating the husband as
one of the next of kin under the statute, it will be
sufficient to refer to the observations of Lord Eldon in
Garrick v. Lord Camden. He says: "Whatever may
have dropt from judges, describing the husband as
next of kin or next legal friend of his wife, the
tenor and bent of modern decisions go to this; that,
if a husband bequeaths to his next of kin, that prima
facie does not include his wife; and it is quite clear
that if a married woman under a power of settlement
bequeaths to her next of kin, it would be impossible
to hold that under the construction of such a will,
without more, the husband would take as sole next of
kin." And I concur in that observation. I have en-
deavoured to guard myself as much as possible from
being influenced by the former decision of this court;
but I quite concur in that decision. I think the
appeal should be dismissed with costs.

Lord Justice KNIGHT BRUCE.-Mr. Wigram and Mr. Goldsmid are perhaps responsible for my judgment; for, when the case was opened, my opinion was against them; but my opinion now is, that this ase may and ought to be decided against the claim f the husband, on three grounds, to each of which by learned brother has adverted. First, that under he Statutes of Distribution persons may claim by firtue of kindred who are not next of kin; secondly, bat it may fairly, and probably with correctness, be ontended, that the husband's right is not under any Statute of Distribution, inasmuch as the Statute of Frauds, in so many words, gives to him or restores to im by way of declaratory enactment the right which he would have had if the statute 22 & 23 Car. 2, 10, has not passed; and, thirdly, that the testaator has been his own expositor, by the reference to his gift contained in the gift to the descendants of Henry. The costs of all parties, including the husand, must be paid out of the estate.

The petition was now reheard by way of appeal rom that decision.

Elmsley and Hetherington, for the petitioner, referred o the 22 & 23 Car. 2, c. 10; the 29 Car. 2, c. 3, s. 25; ind cited Squib v. Wyn, 1 P. Wms. 378; Cart v. Rees, cited 1 P. Wms. 381; Withy v. Mangles, 10 Cl. Fin. 215; Brandon v. Brandon, 3 Swanst. 312; Elliott v. Collier, 3 Atk. 526.

Lord Justice KNIGHT BRUCE.-I concur; the letter
of the will is against the husband, and the spirit is
not with him.
Appeal dismissed with costs.

ROLLS COURT.

Barrister-at-law.

May 1854.

Will--Direction to invest personalty in land-Sale of
stock for that purpose-Compensation to tenant for
life in respect of loss of dividend-Legacy-duty.
A testator directed that the residue of his personal
estate should be iuvested in land, and be settled to the
same uses as were by his will declared of his real
estate, and in the mean time that the income arising
from such residuary estate should be paid to the party
who for the time being would have been entitled to the
rents of the real estate to be purchased, if the said
purchase had been made.

LORD LONDESBOROUGH v. SOMERVILLE.

1850:

ROLLS COURT.

and to settle the same to, upon, and for such and the same uses, trusts, and purposes, as were in his said will before declared and expressed concerning his manors, &c. therein before devised, or as near as might be; and upon trust, until such purchases could be obtained, to invest the said residuary personal estate in government or real securities: and the testator declared that the income arising from such investment should go and be paid to the person or persons who would be entitled for the time being to the rents and profits of his said real estate.

The testator died in Aug. 1819.

Lord Londesborough was the first tenant for life, under the testator's will, of the real estate, and was therefore entitled to the income of the residuary personal estate.

In Nov. 1849 the trustees contracted for the purchase of an estate for the sum of 438,000l., to be completed on the 8th Jan. 1850, the purchaser was to be entitled to the rents from that period. To provide for the payment of the purchase-money, and also for the general benefit of the estate; and, considering the contingency of a depreciation in the price of stocks, the trustees, on the 26th Nov., sold the sum of 500,000l. Three per Cent. Consols., to be transferred and paid for on the 12th Dec.; and the said sale was completed on that day, which is the day before the closing of the transfer-books, preparatory to the payment of the dividend on the 5th Jau. 1850, and on which a sale for money can be made.

The sale produced the sum of 475,8007., the value of the said stock being increased by the dividend which was then accruing due; and consequently Lord Londesborough was deprived of the half-year's dividend, which would have been payable on the stock on the 5th Jan. 1850, which would have amounted to the sum of 75001.; and he claimed to be paid a sum out of the proceeds of the sale of the said stock, equivalent to the amount of such dividend. This claim being disputed by or on behalf of the parties entitled to the said income in remainder, all parties concurred in a case for the opinion of the court upon the questionWhether, under the circumstances, the amount of the half-year's dividend which would have been payable upon the said stock on the 5th Jan. 1850, in case the same had not been sold, or any proportionate part thereof, or any compensation in respect of the loss of such dividend, ought to be charged against the moneys produced by the sale of the stock, and placed to the account of income of the testator's estate?

Another question was also stated upon the caseWhether, according to the true construction of the testator's will, the legacy-duty chargeable upon so much of the testator's residuary personal estate as fór the time being had remained uninvested in the purchase of real estate, ought or not to be borne out of the general personal estate of the testator?

Palmer, Q.C. and Renshaw, for the plaintiff, cited Lady Plymouth v. Archer, 1 Bro. C. C. 159; Burgess v. Lamb, 16 Ves. 174; Davies v. Westcott, 2 Sim. 425; 16 Sim. 447; Oldham v. Hubbard, 2 Y. C. C. 219. Ex parte Smyth, 1 Swanst. 337; Cartar v. Taggart, Lloyd, QC., J. V. Prior, and Roupell, Q.C., for the several defendants.

The MASTER of the ROLLS.-Upon this first point I think the tenant for life is entitled to something in respect of these dividends. This appears to me to rest upon the broad and general principles of equity in doing justice between a tenant for life and persons entitled in remainder; and, as was observed by Lord Eldon in the case of Burgess v. Lamb, may in some cases involve questions of great importance and of very considerable difficulty. The contract for the purchase

The trustees made a contract for the purchase of an
estate, which was to be completed on the 6th Jan. of the estate I understand to be this: Lord Londes-
1850, the purchaser to be entitled to the rents from borough was to be put in possession of the estate im-
that period; and accordingly, to provide for the pay- mediately upon the completion of the purchase,
ment of the purchase-money on the day fixed, sold but that the rents which would accrue due
out stock on the 12th Dec. 1849, the day prior to the on the 6th April (which would have accrued due for
closing of the transfer-books of the Bank, prepara-half a year) were to be divided equally between Lord
tory to the payment of the dividend on the 5th Jan. Londesborough and the vendor of the estate, that is
to say, the vendor was to take the rents up to the
6th Jan., and Lord Londesborough was to take the
rents from the 6th Jan. It is obvious, therefore, that
if the stock could have been sold on the 6th Jan. (the
day on which the dividend is payable), it would have
been perfectly just and equitable that Lord Londes-
borough should have taken the dividends on the stock
up to that period, and should have taken the rents
from that period, which was the time that the divi-
dend would have ceased. But in fact there was an

Held, that the party who was then entitled to the income
of the said residue, and to the rents of the said
estate so purchased, was entitled to compensation in
respect of the dividend of which he was so deprived
by the sale of the stock; and that the measure of such
compensation was the difference between the amount
produced by the sale of the stock and the amount
which it would have produced if it had been sold on
the 6th Jan., exclusive of dividend.

Wigram and Goldsmid, contrà, cited Baily v.
Wright, 18 Ves. 49, affirmed on appeal, 1 Swanst. 39;
Easley v. Young, 2 Myl. & K. 780; Garrick v. Lord
Canden, 14 Ves. 372: Cholmondeley v. Lord Ash-The testator directed that the legacy-duty payable on the
arton, 6 Beav. 86; Kilner v. Leech, 10 Beav. 302;
Watt, 3 Ves. 244.

Watt v.

Hobhouse, for other parties.
Elmsley, in reply.

Lord Justice TURNER.-In this case I am of opinion that the only safe course is to abide by the words of the will; for the only means we have of discovering the testator's intention is by the words he has used to express it. In the events which have happened, the trusts of the fund are for the person or persons who, at the time of the decease of the daughter, would be entitled as next of kin, or otherwise, to the personal estate of such daughter, under the statutes made for the distribution of intestates' effects, if such daughter had then died intestate. Any person, then, claiming

annuities and pecuniary legacies bequeathed by his will should be paid out of his general personal estate: Held, that the income of the residuary personal estate remaining uninvested in land could not be considered as an annuity; and therefore that the legacy-duty payable thereon must be paid out of such income.

William Denison by his will, dated in 1848, directed that the legacy-duty on all the annuities and pecuniary legacies given by his will should be paid out of his general personal estate; and he bequeathed the residue of his personal estate unto trustees, upon trust to convert the same into money, and within ten years after his decease, or sooner, if his trustees could find a proper purchase or purchases, to lay out and invest the said residue in the purchase of real estate,

interval, viz., from the 12th Dec. to the 6th Jan., in which the money was producing no interest at all. [Palmer.-The contract was made on the 26th Nov. though the stock was not to be delivered till the 12th Dec.] That is exactly the same thing. A person may contract on one day to deliver at a future period. It is in fact a speculation, when a person sells stock to be paid for on a future day, and the price of the stock will be the price of that day. I therefore treat the sale as if it were a sale on the

12th Dec. Now I apprehend that, if the trustees had thought fit, they might have sold the stock to be delivered on the 8th or 10th Jan., when the Bank books open. In that case the dividends would have been accruing during the whole of that period, and the value of the stock would have increased during

V. C. STUART'S COURT.

of his debts), to his said trustees, to be invested in land to the same uses as were declared respecting his manor of Snowshill.

Testator died on the 18th May 1786, and his will was duly proved by the executors. Martha Penton, the tenant for life, died on 14th Sept. 1809, leaving two sons only, Thomas Ponton the elder and John Ponton.

Thomas Ponton thereupon became tenant for life. Thomas Bagshott had already died without issue, on 23rd Nov. 1804; and the Rev. Peter Hawker had already died, on 21st Nov. 1808, leaving George Hawker, his first son. John Ponton, the tenant for life, died without issue on the 22nd July 1826, whereupon Thomas Ponton, the second son of Martha, became tenant in tail in possession. He died without issue on the 18th April 1853. In the mean time, viz. in Aug. 1843, George Hawker, the first son of the Rev. Peter Hawker, had died, leaving the present plaintiff, George Hawker, his eldest son and heir male. Upon the death of Thomas Ponton as aforesaid in April 1853, and failure of issue, the plaintiff thus became tenant in tail in possession.

In the year 1842, when his father George Hawker was living, and was tenant in tail in remainder, the plaintiff, being then a prisoner for debt in the gaol at Gloucester, petitioned the Insolvent Debtors Court for his discharge, under the Acts then in force; and a vesting order of the court, dated 2nd July 1842, was obtained. By that order, which followed the language of the 37th section of the 1 & 2 Vict. c. 110, all the real and personal estate and effects of the plaintiff, except his wearing apparel, &c., and necessaries, working tools, &c. not exceeding in value 201.. and all the future estate, right, title, interest, and trust of the plaintiff in or to any real and personal estates and effects which the plaintiff might purchase, or which might revert, descend, be devised or bequeathed, or come to him before he should become entitled to his

final discharge, in pursuance of the Act of Parliament in that behalf, according to the adjudication made in that behalf, were vested in the petitioner, Samuel Sturgis, the provisional assignee of the estates and effects of insolvent debtors in England, his successors and assigns, to have and to hold, receive and take, all and every the said estate and effects of the plaintiff, real and personal, in possession, reversion, remainder, or expectancy, of every nature and kind whatsoever, except as aforesaid, and all and every the said estate and effects which should be so purchased by the plaintiff, or which should so revert, descend, be devised, bequeathed, or come to him as aforesaid, in possession, reversion, remainder, or expectancy, of every nature and kind whatsoever, with their and every of their rights, members and appurtenances, unto the petitioner, his successors and assigns, according to the respective natures, properties, and tenures thereof: in trust, nevertheless, to and for the use, benefit, and advantage of the creditors of the said plaintiff, who should be entitled, &c. The schedule of the plaintiff, filed by him under his insolvency, contained, amongst other things, the following entries: "Property in reversion, &c., places, pensions, rights and powers, real and personal estate and effects, in which have any interest in remainder, reversion, or expectancy. My interest (if any) of, in, and under the will of John Small, late of Clapham, Esq., deceased, bearing date the 25th April 1786, and proved in Doctors Commons 26th May 1786.-27th Nov. 1834. By indenture of this date, Anthony Scott, Esq., of Gower-street, Bedford-square, London, John Stonard, D.D., and J. H. Markland, Esq., of Paper-buildings, London, the present trustees, Thomas Ponton, Esq., the tenant for life, my father, George Hawker, and myself and brother, deceased, joined in declaring the residuary personal estate now remaining, subject to the trusts of Mr. Small's will, to be 15,000l. Bank Stock, 6420l. 31. per Cent. Consols, 71537. 34. per Cent. Reduced, 23,730. New 31. 108. per Cent.: total, 52,3231. stock-to which I have the bare hope of succession of an heir apparent in tail, and which expectant fund has been attempted to be charged by me by certain post-obit bonds, and other security given to certain creditors as set out in my schedule.'

V. C. STUART'S COURT.

1854, whereby, amongst other things, the dividends
of certain sums of stock and cash standing in court
to the credit of the cause had been ordered to be paid
to the plaintiff.

The petitioner prayed that, notwithstanding the
above orders, the sums of stock and cash might be
transferred, and the dividends of the stock paid to him
as assignee, or otherwise that the stock and cash
might not be transferred without notice to him, and
the dividends of the stock might not be paid to the
plaintiff until the further order of the court.
The question was, whether the plaintiff, in the year
1842, when the vesting order was obtained, had any
and what interest in the fund, subject to the uses and
trusts of the will of John Small, which could and
did pass to the petitioner by the vesting order.
Wigram and 'Osborne, for the petitioner, contended
that, in the year 1842, the plaintiff was issue in tail,
and that he had an expectancy which passed under
the vesting order. (They cited Wright v. Wright, 1
Ves. sen. 408; Higden v. Williamson, 3 P. Wms. 132;
Lyde v. Mynn, 1 M. & K. 683; Meek v. Kettlewell, 1
Phill. 348.)

The VICE-CHANCELLOR observed that it had been
decided that a man might convey away not only his
expectancy as heir, but even his expectancy as
legatee: (Harwood v. Tooke, 2 Sim. 192.)
Malins and Roxburgh, for the plaintiff, opposed the
petition.

Bacon, for the defendants.

The VICE-CHANCELLOR.-My opinion is, that the petitioner is not entitled to any such order as he asks from the court; but, the parties to the cause consenting to transfer 5001. stock upon the terms mentioned, I shall order that to be done. I will now state my reasons why I think the petitioner is not entitled to any such order as he asks. The petitioner claims as the assignee in insolvency of Mr. Hawker. The insolvency took place in the year 1842, and in July 1842 a vesting order was made, by which, in the terms of the Act of Parliament, all the estate of the insolvent was vested in the present petitioner, and his claim to this fund is under that vesting order. What the Legislature has said by the 37th section of the 1 & 2 Vict. c. 110 is, that the estate which shall be vested in the assignee in insolvency shall be "all the real and personal estate and effects," &c., " and all the future estate, right, title, interest, and trust of such prisoner in or to any real and personal estate and effects within this realm or abroad, which such prisoner may purchase, or which may revert, descend, be devised or bequeathed, or come to him before he shall become entitled to his final discharge." The insolvent obtained his final discharge by an order made in Nov. 1812; and the petitioner says that, within the words of the Act, the insolvent had before Nov. 1842 acquired an estate or interest in this particular fund, or in the property which it produced, which makes it come within the operation of the 37th section. The situation of the insolvent at that time was, that his father was then tenant in tail in remainder, subject to a life estate which did not expire until the year 1853. Therefore the insolvent's father had clearly an estate and interest, and so clear an estate and interest as tenant in tail in remainder, that, having that estate, his son could have nothing. It is said that his son had an expectancy, a possibilitysuch a possibility as the heir apparent of any man who has a descendible estate vested in him may be supposed to have. He had that, but nothing more. I must, however, look further and see if the Act of Parliament, upon the true construction of the words, has such an operation as to vest in the provisional assignee in insolvency the interest of an heir apparent, and I find very distinctly that the Act of Parliament gives no such right to the provisional assignee; for the right of the heir apparent is not an estate or interest; and if it be a possibility or expectancy, it is said that it must be such as would" descend or come to him before he shall be entitled to his final discharge." Now, what this insolvent had was the possibility that by the death of his father without suffering a common recovery, or, what is the same thing, without making a disposition under the Act for the Abolition of Fines and The order of discharge was obtained, dated 14th Recoveries, this estate might descend or come to him Nov. 1842, upon the terms prescribed by the Act, of before his final discharge; but as it did not, the he plaintiff's swearing to the truth of the schedule, Legislature has expressly said that any estate or nd executing a warrant of attorney to confess judg- interest which did not descend or come to him before ment. It did not appear that this judgment had been his final discharge is not within the operation of the ntered up by the assignee before the 13th April 1853, Act of Parliament. Mr. Osborne refers me to the when the plaintiff's title accrued in possession. well-known case of Wright v. Wright, and the stateBy an indenture of 3rd Aug. 1853, after the plain-ment of the law by Lord IIardwicke in that case. Lord it's title had accrued in possession, the plaintiff Hardwicke says with perfect truth, and with that signed to the defendants, J. W. Hallewell and degree of accuracy which is to be expected from so W. W. Kearsey, their executors, administrators, and high an authority, that an heir apparent, though he signs, all the personal estate to which he was entitled has but a possibility, may, by fine, which would nder the will of John Small, and all his estate, right, operate as an estoppel, bar himself from his right, itle, claim, and demand whatsoever at law and in when the property descends to him, to take it. So he quity, in, to, or out of the same, upon trust, first, for might. But how can I argue from that proposition he payment of his debts, next to pay the sum of of law so as to say that a vesting order in insolvency 6004 to himself, the plaintiff, and then to stand pos- shall have an operation by way of estoppel? It would essed of the residue upon the trusts thereinafter be perfectly absurd and contradictory to the language of the Act, which has carefully defined what shall be held to pass to the assignee in insolvency. Under the 37th section I am of opinion that, this right which the son had not having descended or come to him before the final order for his discharge, the fund was never

eclared.

The cause was instituted by the plaintiff in Dec. 853, for the purpose of administering the trusts of he indenture of Aug. 1853, and orders of the court ad been made, dated 18th Jan. and 10th Feb.

V. C. STUART'S COURT.

so vested in him as to pass to the assignee in
insolvency. It is said, however, that in the year 1853
the right was acquired by him; that in Aug. 1843,
after the date of the order of his discharge, the
insolvent's father having died, the insolvent be-
came tenant-in-tail in remainder; and that under
the 87th section of the Insolvent Act there are pro-
visions which direct that the insolvent shall give an
authority to the assignee by warrant of attorney to
enter up judgment. Now that authority was
given before the discharge. If judgment had been
entered up under that authority in sufficient time,
a question might have arisen, and there might
have been a strong ground for argument, which
would have sanctioned the claim of the assigne
under the operation of that judgment; but it appears
that in fact, though there was authority to enter up
a judgment, the judgment was not entered up at any
time before the right of the insolvent accrued in pos-
session, and was dealt with by him independently of
and before any right asserted by the assignee. That
it was the duty of the provisional assignee to enter up
the judgment either then or at some time within the
period of ten years, in the course of which he does
not appear to have done so, is a question which is not
before me.
It is said that it has been entered up
now. But it must be shown, according to my con-
struction of the 87th section, that it was entered up
before the month of Aug. 1853; because what hap-
pened then was this-that, the tenant for life having
died in April 1853, the insolvent became tenant in
tail in possession; and then, having acquired a right
in possession, if the assignee had come in time with
his judgment, it would of course have had its due
operation; but, not having come in time, the insol-
vent dealt with the property himself, and assigned
the property to trustees, and it is now vested in
trustees for the benefit of creditors-a very laudable

and proper mode of disposing of it. The judgment
not having been entered up before the property was
so dealt with, my opinion is, that, under the 87th
section, it is impossible to hold the existence of the
authority to enter up the judgment, the same as if
judgment had been actually entered up. And I am
more confirmed in that view of the construction of
the Act of Parliament and the effect of a warrant of
attorney by seeing that an order is required to enable
judgment to be entered up; so that it appears an
application for that purpose is not a matter of course.
That I should attribute the same effect to that autho-
rity as if an order had been actually obtained, aud
the judgment entered up, would seem to me going
far beyond what the Act of Parliament has autho-
rised, and the justice of the case requires; for if the
assignee sleeps on his rights for ten years, and does
not enter up judgment during that time, I think it is
a highly wise provision of the Act of Parliament
which enables me to hold, and that it will be a sound
construction to put upon it to hold, that the mere
existence of a warrant of attorney under the 87th
section has not the same effect as if a judgment had
been actually entered up. That puts an end to the
petitioner's case altogether. The order for the pay-
ment of the 500l. stock will be by consent; and all
parties must pay their own costs.

May 2 and 3.

COOKE . WAGSTER. Construction-Will-Ready money. Testator, by will, devised specifically all his ready money and securities for money, money in the Funds, and money in the Bank or banks, if any, which might be due and owing to him at the time of his decease. Before the date of his will, the testator had directed a sum of 9001. to be paid to an agent, for the purpose of investment. The sum was accordingly paid; but the agent never gave any receipt for the same, and died in the testator's lifetime, without investing the same. A claim having been allowed against the agent's estate in respect of the sum so received by him: Held, that the sum passed by the words above cited to the legatee mentioned in the will.

The question in this case turned upon the construction of the words "ready money, securities for money, money in the Funds, and money in the Bank," which occurred in the will of Richard Longworth Percival, The will was dated the 29th April 1848, and was in the following terms: "First, I order and direct my just debts, funeral and testamentary expenses, and expenses of proving this my will, to be paid by my executrix and executor hereinafter named, out of my personal estate, as soon as conveniently may be after my decease. And I give and bequeath unto my dear wife Ann Percival, all my ready money, and securities for money, money in the Funds, and money in the Bank or banks (if any), which may be due and owing to me at the time of my decease; and also all my household goods and furniture, beds and bedding, plate, linen, china, glass, pictures, clocks, watches, books and papers, and all household stores of every description, which I now am or may be possessed or entitled unto at the time of my decease, to and for her use and benefit absolutely." The testator then devised his real estates, and appointed his wife the said Ann Percival and J. Banks executrix and

executor of his will.

The testator died on the 23rd July 1848. In the