THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A SELECTION LEADING CASES IN EQUITY. ^mttlt UoUs, YOL. I. PART FIRST. BY FKEDERICK THOMAS WHITE, ANT) owe:n^ dayies tudor. (OF THE MIDDLE TEMPLE, ESQRS., BARRISTERS-AT-LAW.) TOGETHER WITH NOTES AND AMERICAN CASES BY FRANKLIN S. DICKSON, LL. B. FROM THE SIXTH (1886) EDITION. PHILADELPHIA : THE BLACKSTONE PUBLISHING COMPANY 1888. Entered according to the Acts of Congress, in the year 1888, by the Black- stone Publishing Company, in the oflBce of the Librarian of Congress, at Washington, D. C. T («) • \ NOTE. We suggest to our patrons that, to facilitate the labor of the Judges and Reporters, they cite the TOP PAGING of books of our SERIES, and add [TEXT BOOK S^RIBS.]— Editor. (iii) ^^bV6Si- (iv) PREFACE. TO THE FIRST EDITION OF VOL. I. The plan of this work was suggested by the very able volumes of the late Mr. John William Smith, which con- tain a selection of Leading Cases principally taken from the Common Law Reports; and it was thought that it might be useful to the j)rofession to have, within a small compass, a selection of Leading Cases decided in Courts of Equity. Each of the cases chosen will, it is believed, be found either to be frequently referred to in practice, or to enunci- ate clearly, for the lirst time, some important principle of equity. A chronological arrangement of the cases has not been observed, because it has been in the present, and may be in a subsequent volume, found useful to print together cases on the same subject, decided at different periods. The notes, or abstracts prefixed to the cases, have occa- sionally, when inaccurate or defective, been altered; and, in some instances, the arguments and judgment in the same case are taken from different reports. Thus, in the well- known case of Fox v. 31ackret7i, the arguments are taken from Brown's Chancery Cases, and tlie judgment from Cox's Reports; and in the celebrated case of Garth v. Col- ion (a complete report of which is not to be found else- where), the arguments are taken from two different places in Vesey Senior's Reports, the judgment from Dicken's Reports, and the decree from Atkyn's Reports. (V) Vi PREFACE. In the notes an attempt has been made to develop the principles laid down or acted upon in the cases, and to col- lect the recent authorities; but as the nature of the work would not permit that the notes should be complete essays upon the different subjects treated of, they have been prin- cipally confined to the points decided in the cases, to which, in fact, they are only intended to be subsidiary. It will be seen that, in the notes, some cases of import- ance are stated at considerable length, and that when it was convenient or practicable, the very words of the Judges have been preserved. Of imperfections and deficiencies in the notes, the Editors are by no means unconscious, but they venture to hope that the cases (the selection of which, from a great mass of the Equity Reports, was a matter of no small difficulty) will prove useful both to students and to those in actual practice. Jvly, 1849. ADVERTISEMENT TO THE SIXTH EDITION. In preparing this Edition, much new matter has been added to the Notes. A very large addition has also been made to the cases cited, which have been brought down to the latest period. The effect of recent important legislation, such as the Vendor and Purchaser Act, 1874; the Conveyancing Acts, 1881 and 1882; the Married Woman's Property Act, 1882; the Settled Land Act, the Bankruptcy Act, 1883, have, amongst others, been carefully considered, and when neces- sary noticed and commented on. In the second volume, the case of Leclimere v. Lady Lechmere (Ca. t. Talbot, 26), has been substituted for Wil- cocls V. Wilcocl'S (2 Vern. 558). Mr. Trustram, of Lincoln's Inn, has j-endered valuable assistance towards the revision of the latter part of Vol, 2 when it was passing through the press. Feb., 1886. :n^otice. In making additions to White and Tudoes Leading Cases in Equity, Mr. Dickson has, by the use of brackets [ ], distinguished all his additions, otherwise, this is a ver- batim reprint of the Sixth (1886) Edition, being 12 years later than the last Amekican Edition, and 17 years later than the Fourth English Edition from which the last American Edition was reprinted. BLACKSTONE PUB. CO. Philadelphia, Pa., Oct. 1, 1S88. (vii) (viii) LIST OF CASES EEPORTED. [The paging refers to the [•] pages. ] PAGE AcKROYD V. Smitiison (Resulting trust, on failure of the purposes for which conversion has been directed) . 1027 Aleyn v. Belchier (Fraud upon a power) 437 Ancaster (Duke of) v. Mayer (Primary liability of per- sonal estate to payment of debts — Exoneration) . 723 Chesterfield (Earl of) v. Janssen (Post-obit securities — Catching bargains with heirs, expectants, and re- versioners — Confirmation) 624 Cuddee v. Rutter (Specific performance of agreements re- lating to personal property) 907 Dering v. Earl of Winchelsea (Contribution between co- sureties) 114 Dyer v. Dyer (Purchase in the name of a child — Advance- ment — In the name of stranger — Resulting trust) . 236 Elibank (Lady) -y. MoNTOLiEU (Wife's equity to a settle- ment) 486 Elliot v. Merryman (Liability of a purchaser to see to the application of the purchase-money) 72 Ellison v. Ellison (Voluntary trusts) 291 Fletcher v. Ashburner (Conversion) 968 Fox V. Mackreth (Purchase by a trustee for sale) .... 141 Garth v. Cotton (Equitable waste) 806 Glenorchy (Lord) v. Bosville (Executed and Executory trusts) 1 HuLME V. Tenant (Wife's separate estate) 536 Keech v. Sandford (Renewal of a lease by a trustee in his own name — Constructive trust) 53 Lake v. Craddock ) / t • . -, ^ { 217 -, ^ (Joint purchasers) Lake v. Gibson S ' i 215 (ix) X LIST OF CASES REPORTED. [The paging refers to the [»] pages. ] PAGE Legg v. Gold wire (Executed and executory trusts — Recti- fication of settlement by articles) 17 Lester v. Foxcroft (Part performance of parol contract respecting land) ." 881 Mackreth v. Symmons (Vendor's lien for unpaid purchase- money) 355 Marsh v. Lee (Tacking incumbrances) 696 Murray v. Lord Elibank (Wife's equity to a settlement) 493,501 NoYS V. Mordauxt (Election) 395 Pitt v. Mackreth (Purchase by a trustee for sale) . . . 141 PusEY V. PusEY (Specific delivery up of chattels) .... 961 Russel v. Russel (Equitable mortgage by deposit of title deeds) 7T3 Somerset (Duke of) v. Oookson (Specific delivery up of chattels) 962 Strathmore (Countess of) v. Bowes (Fraud on marital rights) 471 Streatfield v. Streatfield (Election) 397 Tollet v. Tollet (Defective execution of a power aided) 269 Ward ^;. Turner (Donatio mortis causa) 1058 INDEX THE NAMES OF CASES CITED. CThe paging refers to the ['] pages.] Abbot v. Burton, 845 V. Gibbs, 7.'5 Abbott, Ex parte, aoO V. Geraghty, 52 t'. Stratton, 792 Abeiuman Iron Works v. Wickens. 392, 393 Aberdeen Eailvvay Company r. Blackie, 181 Town Council v. Aberdeen University, 58 Abinger (Lord) v. Clayton, 933 Abnev v. Miller, 54 Abrahal v. Bubb, 808, 815, 840, 841, 86:5. 867 Abraham r. Newcombe, 528 Acheson r. Fair, 62 Ackrovd v. Smithson, 972, 1022. 1027, 104i, 1043, 1047, 1048 Acraman v. Corbett, 343, 346 Acton V. White, 610 r. Woodgate. 303, 305 Adair v. Shaw, 589, 590 Adam's Policy Trusts, In re, 556 Adames' Ti'usts, Ixxv Adanies v. Hallett, 349 Adams and the Kensington Vestry, In re 1003, 1004 T. Claxton, 721, 782 V. Clifton, 214 V. Gamble, 564 r. Loudon and Blackwall Kail- way Co., 914, 985 V. Mevrick, 728, 737 V. Sword er, 199 Adamson v. Armitage, 548 Adderlev i'- Clavering, 63. r. Dixon, 914, 918 Addis r. Campbell, (i79, 680j 694 Adlington v. Cann. 902. 904, 905 Adney r. Field. 282. Adsetts r. Hives, 796 Advocate-General r. lianisoy's trustees, 994 ■ 1-. Smith. 995 Affleck c. Affleck, 272, 274 Affleck V. James, 994 Agar V. Macklew, 944 Agassiz V. Squire, 455 Agra Bank (Lim.) v. Barry, 795, 797 Aguilar r. Aguilar, 533, 572, 574, 602 Aherne v. Hogan, 191 Ainslie, In re; Swinburne v. Ainslie, 874, Ixxviii Ainsworth. Ex parte, rt Goren. 792, 799 Airey v. Hall, 309 Albert Life Assurance Company, In re, 383 Albion Steel and Wire Co. c. Martin, 181 Alcock r. Alcock, 583 Aldborough (I^ord) v. Tyre, 685, 686 Alder v. Fouracre, 59, 1 96 Alderson v. IMaddison, 896 Aldred's Estate. In re, 983 Aldrich r. Cooper, 128, 387. 622. 772 Aldridge, Ex parte, 554 V. Wallscourt, i Lord), 742, 744 Alen V. Hogan, 757 Alexander, Ex parte, 198, 800 Be, 139 V. Brame, 334 r. Cross, Ixxix V. M'Culloch. 502, 534 V. Young. 610 Alevu r. Belehier, 437, 443, 452, 455, 463, 465 Allan r. Gott, 741, 748 Alldav r. Fletcher, 529 Allen' r. Allen, 764, 771 r. Anderson, 413, 419 r. Backhouse, 63 V. De Lisle, 130, 134 v. Graves, 925 V. Knight. 390. 706, 715 V. Papworth. 540, 568 Allen V. Walker, 564, 565, 600, 603 Allerton c. Knowell, 532 Allevue v. Allevne. 262 (xi) xu TABLE or CASES. [The paging refers Allison V. Monk wearmon til, i)A'i i AUnutt. In re. 1^6 Alt V. Alt. 895 Altraan v. Royal Aquarium Society-, 951 Alton t: Harrison, 346 Ambler r. Bolton, 225 Ambrose Lake Tin and Cop^jer Mining Co., In re; Ex parte Taylor, 183, 195 Amis V. Witt, 1084 Amler v. Amler, 989 Amphlett v. Parke, 1044, 1052, 1055 Anandale v. Anandale, 1015 Ancaster (Duke of) v. Mayer, 723. 744, 753 Anderson v. Abbott, 409, 416, 433 V. Kemshead, 792, 803 Anderton v. Cooke, 726, 729, 744 Andrew v. Andrew, .376 V. Trinity Hall. 417 V. Wiigley, 106, 111, 112 Andrews, In re, Ixxvii Andrews v. Hailes, 58 Anglo- Australian, &c. Co. v. British Provident Soc, 944 Anglo-Italian Bank v. Da vies, 712 Anonymous, 24, 197, 237, 242, 249, 288, 340, 417, 433, 504, 52.5, 564, 710, 713. 721, 722, 847, 867, 897, 902, 940, 951, 1017. Anstruther v. Adair, 526 Antrobus v. Smith, 313, 314, 327, 328 Anwyll V. Owens, 864 Apharrv v. Bodingham, 345 Aplin's" Trust, Be, 428 Appleton V. Rowley, 597 Ap Rice's (George) case, 858 Arcedeckne, In re; Atkins v. Arce- deckne, 120, 125, 126 r. Howard (Lord) 122 Archbold r. Howth (Lord), 889 V. Scully, 57 Archer's case. 8, 827, 828 Archer v. Hudson, 207 V. Lavender, 596 V. Rorke, 545, 546 V. Suatt, 721 Ardesoife v. Bennett, 406, 431, 433 Ardgla.sse (Lord) v. Muschamp, 630, 634, 655, 674 Arkwright, Ex parte, 783 Arraitage v. Baldwin, 131 V. Coates, 611 V. Wadsworth, 965 Armstrong v. Armstrong, 211, 246, 931, 932 Armstrong v. Cahill, 124 V. Lynn, 427 Arnold v. Arnold, 296 V. Chapman. 1049 to the [•] pages.] Arnold v. Hardwick, 444, 453 v. Kempstead, 420. V. Woodhanis, 607 Arthur *•. Arthur, 547, 579, 580 V. Clarkson, 310, 333 V. Lamb, 871 V. Midland Railway Company, 254 Arundell r. Phipps, 964 Ashburner v. jMacguire, 749 Ashburnham v. Ashburnham, 432 Ashburton v. Ashburton, 1018 Ashby f. Ashby, 748 V. Palmer, 984, 992, 1005, 1010 Ashton V. Ashton, 32 V. Corrigan, 929 V. Dal ton, 784. 789, 790 V. Dawson, 1083 V. M'Dougall, 477, 483, 484, 599 Ashurst V. Mason, 121, 124 Ash worth v. Outram, 551, 552, 555, 604, Ixxv Askew V. Rooth, 596, 598 Askham r. Barker, 444, 447 Aspinwall v. Leigh, 820 Astbury, Ex p)arte, 785, 786 Astley r. Taukerville (The Earl of), 752, 7.53 Aston v. Aston, 863, 867 r. Wood, 417 A.stry V. Astry, 465 Atcheson v. Atcheson, 531 Atchison r. Le Mann, 564 Athertou v. Knowell, 489, 532, 533 Athill V. Athill, 770 Atkins r. Arcedeckne, 120, 125, 126 v. Delme r. Farr, 644 Atkinson v. Smith, 338 Att.-Gen. v. Bacchus, 531 •{'. Brunning, 233. 996 V. Burdet 273 V. Cashel (Corp. of), 177 V. Clarendon (Earl of), 177 V. Dav, 887, 893, 899 V. Dillon, 903 V. Dixie, 177 V. Dudley (Lord), 176, 209. 211 V. Gains, 70 V. Hardy, 189 r. Harlev, 988 Att.-Gen. v. Holford, 994 V. Hubbuck, 233, 996 V. Jackson, 898 V. Johnstone, 1057 • V. Jones, 1070 V. Lomas, 233, 99;;. 997 1045. 1046 TABLE OF CASES. XIU [The paging refers Att.-Gen. r. Manp;los. 005 ('. I\Iaill)or()ii^h (Duke of), V. Mid-Ki'iit Ivaihv.ay Com- pany aiul South Coast Kail way Compauj', 930, 9:n V. Miliier, 1049 V. Newcastle (Corp. of), 334 V. Parkin, 749 V. Parutlier, 581 V. Plvniouth (Corp. of), 177 V. Potter, 108 V. Kve, 273 V. Sibthorpe, 273 r. Sinicox, 995 v. Sittingbourne, &c.. Rail- way Company, 378 }'. Stamfonl (iMayor of), 177 V. Tancred, 273 V. Tomline, 58 V. Weymouth (Lord), 988, 1042 V. Yoitng, 6 Attwood, Ex parte, 198 V. Chichester, 541, 583, 604 Atwell?-. Atwell, 989, 991, 993 Aubin V. Holt, 942 Aubrey v. Brown, 519 Aulton V. Atkins, 334 Auriol V. Smith, 948 Austen v. Halsey, 357, 362, 368, 375 V. Taylor, 18, 19, 20, 31 Austin V. Austin, 547 V. Chambers, 200 V. Martin, 105 Aveling v. Knipe, 222, 224, 251 Awdley v. AAvdley, 1017 Ayerst v. Jenkins, 254 Ayles V. Cox, 986 Aylesford's (Earl of) case, 886 V. Morris, 676, 677, 682, 688, 689, 692, 693 Aylettr. Ashton, 541, 584 Barber's Trusts, In re, 306 Back V. Andrew, 255, 260 Backhouse v. Charlton, 801 V. Wells, 7, 8, 11, 15 Bacon r. Cosby, 409, 416 Badcock, Ex parte, 176, 198 Re, 49, 895, 1015, 1017 Baddeley v. Baddeley. 317 Baden r. Pembroke (Earl of), 976 Bage, Ex parte, 198 Baggett V. Meux, 564. 605, 609 Baglehole, Ex parte, 798 Bagnall v. Carlton, 185 to the [*] pages.] Bagnell r. Edwards, 9.39 Bagot V. Bagot 755. 75r), 856, 871, 873, 876, 880 V. Oughton. 755 Bagshaw i-. Downes, 4 V. Spencer. 4, 18, 19. .32 V. Winter, 519, 522. 523 Bagsterv. Fackerell. 1046 Baile a. Coleman. :'., 5, 9, 10, 11, 13, 17 Bailey v. Collett, 259 V. Elkins, H9 . r. Hobson, 872 Baker's Trusts, In re, 577 Baker t'. Balydon, 518 r. Bent, 679 r. Bradley, 212, 608 V. Carter. 176, 197, 211 V. Hall, 1050 V. Harris, 716, 720, 721 V. Kerr, 563 V. Metropolitan Railway Co., 914 V. Monk, 208 V. Peck, 177 V. Read, 197, 212 V. Sebright, 875 Baldwin v. Baldwin. 518 V. Rochford, 685 Balfour v. Wclland, 81, 83 Balgney v. Hamilton, 249 Ball V. Burnford, 338. 340 V. Coggs, 017, CI 8, 940 V. Coutts, 528, 530 V. Harris, 88, C9, 96. 99 V. Montgomery. 480, 530. 534 Balmain v. Shore, 230 Bamfield v. Popham, 7 V. Wyndham, 726, 727, 745 Bank of England case, 227 London r. Tyrell. 192, 202 Whitehayen v. Dawson, 128 Bankes r. Le Despenser, 34, 47 Bankhead's Trusts, Be, 783 Banks r. Banks, 411 V. Scott, 1013 V. Sutton, 485, 977 Barclay, Ex parte, 786. 788 r. Russell. 1057 Barden (Jane), in the goods of, 988,997 Bard well r. Lydall, 137, 139 Barham r. Clarendon (Earl of), 757, 758 V. Thanet (Earl of). 755, 756, 758 Barker In re, 1016, 1023 r. Barker, 385 V. Deyon (Duke ot), 83 t". Lea, 518 t: Smark, 391 V, Vansommer, 680 XIV TABLE OF CASES. [The paging refers Barkworth >: Young, 346, 894 Bailee v. Bailee, 571 Barling r. Bishop, 345 Barnard's (Lord) case, 863 Barnard v. Ford, 5'29 V. Hunter, 200 Barnardiston v. Lingood, 678 Barnes v. Robinson, 510 V. Vincent, 289, 290 Barnett, Ex parte, 776 V. Weston, 703, 707, 720 Barnewell v. Iremonger, 392, 762, 768 Barnhard r. Greenshields, 897 Barny v. Beak, 630, 678, 680 Barrack v. M'Culloch, 267, 342, 546, 582. 599 Barren, Ex parte, He Parnell, 394 Barrett v. Blagrave, 950 Barrett, Ex parte, 129 V. Hartley, 687 Barrington, Ex parte, 933 i: Hereford, 1050 Barron v. Constabile, 274, 279 Barrow v. Barrow, 433, 515, 533 V. Greenough, 903 V. Griffith, 92 V. Manning, 530 V. Wadkin, 988 Barrs v. Fewkes, 1044 Barry v. Harding, 756, 757 Bariymore r.oEllis, 609 Bartholomew v. IMay, 752 V. Meredidith, 459 Bartlett v. Gillard, 579 V. Pickersgill, 247, 248, 249, 251, 1160 Barton r. Muir, 247 I'. Vanheythuysen, 348, 344. 348, 350 Barwell v. Barwell, 197, 212 Baskerville v. Baskerville, 33 Baskett v. Cafe. 190 'V. Skeel, 804 Bass r. Cliveley, 929 Bassett r. Percival, 755 Bastard v. Froby, 18, 29, 32 Batard v. Hawes, 121 Batchelor v. Lawrence, 134 Batemant;. Hotchkin, 855, 873 V. Roden (Lord), 746, 748, 749 Bates V. Dandy, 491 V. Johnson, 703, 704, 705 Bath (Earl of) v. Earl of Bradford, 1008 Bathe v. Bank of England, 554 Bathurst v. Murray, 528 Batstone v. Salter,'252, 253, 257, 259 Battersbee v. Farrington, 337 Battersby v. Homan, 792 V. Smith, 930 to the [•] pages.] Battersea Park Acts, Be; Ex parte Arnold, 984 Batteste v. ISIaunsell, 992, 1023 Batthyany r. Bouch, 931 Batty V. Lloyd, 6.30, 646, 685 Baugh V. Price, 152, 209, 693 Baumann r. James, 901 Bawtree v. Watson, 676, 679, 693 Bax V. Whitbread, 466, 467 Baxter v. Conolly, 941 Bayliss's Trusts, In re, 548 Bayly v. Robson, 722 Baynard v. Woolley, 781, 789, 796 Baynton, Ex parte, 199 V. Collins, 5.57, Ixxv Bayspool v. Collins, 339 Beaden v. King, 180. 204, 205, 211 Beak v. Beak, 1082 ' Beal V. Billing, 179, 200 Beale, In re; Ex parte Corbridge, 551 Beales v. Spencer, 550 Beatson v. Beatson, 320, 1206 Beauclerk r. Mead, 997 Beaumont Mortgage Trust, In re, 283, 993 Beaumont v. Carter, 523 Beaven v. Oxford (Lord), 335, 711 Becher's case, 628 Bechervaise v. Lewis, 128 Beck V. Andrew, 237 V. Kantorowicz, 195 Beckett v. Cordley, 368, 718 Beck ford v. Beckford, 255 Beckley v. Newland, 647, 685 Bective v. Hodgson, 1043 Beddoes v. Pugh, 444, 453 Bedell, In re, 136 Bedford (Duke of) v. Abercorn, (Mar- quis of), 44 V. Backhouse, 713 V. Bedford, 741, 1044 V. Trustees of British Museum, 956 V. Woodham, 111 Bedingfield v. Ashley, 640, 651 Bedwell r. Froome, 237, 242 Bee V. Stafford. &c.. Railway Co., 912 Beech v. Keep, 322 Beecher v. Major, 244, 256 Beere v. Hoflfmeister, 460 Begbie v. Fenwick. 788 Beilby, Ex parte, 549 Belchier v. Butler, 703, 717 V. Renforth, 703, 717 Bell, Ex parte, 352 V. Blyth, 932 V. Free, 123 V. Phyn, 233 Bellamy's case, 643 TABLE OF CASES. XV [The paging refers Bellamy r. Sal.iiio, 200, 68." Jiellasis's Trust, In re, 25 liellasis r. Conipton, 254 Bellringer v. Bhigrave, 284 Belvidere v. Kochlbrt (Lord), 752, 757 Benbow v. Townsend, 253 Bench v. Biles. 4(58 Bending v. Bending, 420, 424 Bendvshe, In re, 508, 524 Bengal (Bank of) v. Macleod, 194 Benger v. Drew, 237, 242 Benham v. Keane, 711 Bennet, Kv parte, 176, 177, 199, 209, 211 V. Bennet, 2.57 V. Davies, 538, 545 Bennett v. Biddies, 528 V. Colley, 213 V. Houldsworth, 408, 409, 432 Benson ti Benson, 615, 1008 t'. Heathorn, 181 Bentham v. Wiltshire, 99 Beotley v. Craven, 195 V. Mackay, 49, 311 Benton, In re, 606 Benyon v. Fitch, 678, 679, 693 Beresford v. Armagh (Apd. of), 579 (Lady) v. Criver, 965 V. Hobson, 519 Berkeley r. Hardy, 329 Bermingham v. Sheridan, 927 Bernal r. Donegal (Lord), 686 Bernard's (Lord) case, 863 Bernard, Ex parte, 426 Berny v. Pitt, 630, 645, 653, 659, 672, 678 Berry v. Gibbons, 106. V. Usher, 1042, 1053 Bertie v. Chesterfield (Lord), 595 Berwick (l\Iavor of) v. Murray, 121 Besant r. Wood, 942 Bessant i\ Noble, 746 Bestall V. Bunbury, 565 Bevan's case. 1015 Be van v. Ilabgood, 205 Bewick v. Whitfield. 813, 877 Bevfiis V. Bullock, 346 Beynon v. Cook, 676, 677, 682, 686, 687, 690, 693, 694 t. Gollins, 84 Biddv r. Coulter, 1080, 1081, 1083 Bickiiam c. Cruttwell, 734, 749, 752, 753 Bickley r. Guest, 462 Biddies r. Jackson. 524 Biddulph V. Biddulph. 977 Bidwell's Settlement, /iV, 411 Biel's Estate, In re, 197 Biggs V. Andrews, 984, 1047 to the [•] pages.] Biggs r. Peacock, 993 Bigland r. Huddlestone, 409, 416, 4.32 Bignold, Kx parte, 800 Bill V. Cureton, 302, 304, 3.37. 353 Billinghurst r. Walker, 7.55, 757 Binks r. Kokeby, 80 Birch V. lilagrave, 264 V. El lames, 794 Birch-Walfe v. Birch, 814, 853, 877, 879 V. Wolfe, 876 Bird's Trusts, In re, 52 Bird r. Fox, 90 V. Peagram, 596 Birds V. Askej, 249, 386 Birkett v. Ilibbert, 528 Birley v. Birley, 451 Birmingham v. Kirwan, 409, 415, 420, 421 Birney v. Tison, 630 Biron v. Mount, 307 Birt, In re; Birt v. Burt, 202, 249 Biscoe V. Kennedy, 538, 539, 589 Bisdee, Ex parte, 784, 785 Bishop, Ex parte; In re Tonnies, 3.52 V. Bishop, 877 V. Talbot. 904 V. Wall. 562, 568 Bixby V. Eley, 272 Bizzey v. Flight, 417 Blackburn v. Gregson, 359, 361, 368, 373, 381 V. Stables, 18, 20, 29 Blacket v. Lamb, 311, 428 Blackett v. Bates, 934, 935, 949, 950 Blackford v. Kirkpatrick, 888 Blaeklow v. Laws, 550 Blackwell v. Svmes, 708 Blagden, Ex parte, 492, 534 V. Bradbear, 892, 893 Blagrove v. Hancock, 44 Blaiklock %\ Grindle, 418 Blake r. Blake, 70 V. Bunbury, 405, 406, 409, 410, 412. 413 V. French, 277 I'. Peters, 860 Blakely v. Brady, 319. 320 Blanchet v. Foster, 484 Bland v. Bland, 275. V. Dawes, 546 Bland r. Wllkins. 1050 Blatchford v. Woolley, 563, 569 Blenkinsopp v. Blenkinsopp, 345 Blennerhasset v. Day, 188, 204 Blewett V. Millett. 55, 61, 62, 63 Bligh r. Brent, 230 Blockvill r. Ascott, 288 Blonmart v. Player, 413 Blore v. Sutton,'278, 287, 893, 910 XVI XABLE OF CASES. [The paging refers Blount V. Bestland. 4SS V. Burrow. 1078, 1080, 1083, 10S7 f. Hipkins, 743 Bloye's Tiust. Jii re, 176, 177, 187. 203 Blunt V. Lack. 433 Boardiuan r. Mostyn. 892, 900 Bodilington v. Langlbrd. 177 Bodeuliam r. Hoskyus. 113 Bodsier c. Bodger. 803 Bold I". Hutchinson, 18, 49, 51 Bolland. Exporte: In re Clint, 346 r. Bygrave. 791 Bolton V. Bolton. 328 r. Puller. 791 r. Staunard. 101 V. 'Williams. 572 Bond r. England. 7t>0 r. Hopkins, 885 r. Kent. 358. 363. 366. 384 r. Simmonds. 503. 531 Bone r. Pollard. 223, 259. 263 Bonlield r. Hassell, 326, 334. 510. Ixxiv Bonner v. Bonner. 529 Bonnev v. Kidg-ard, 75, 77, 106, 109. 110."ll2 Booker, Jn re. Ixxiv Booth r. Pollard. 933 V. Turle. 897 Boothbv r. Boothhv. 679. 686. 693 Bootle ■(•. Bluudell. 734. 740, 742. 744, 745. 747. 752, 753 Bor r. Bor, 406. 409. 415. 432 Borrett r. Gonieserra. 886 Bosanquet r. Dash wood. 632 r. Dudnian, 791 Bostock r. Blakeney, i82, 983 Bosvil I-. Brander, 488, 508 Boswell V. Coakes, 208 r. Dillon, 18. 19 r. Gurney. 772 Bougbton V. Bougbton, 418, 432. 740. 742. 748 f. James. 742 Bonlton. Ex parte, Be Sketcbley, 775, 776 Bourdillon r. Adair. 524 Bourne r. Bourne. 993. 993 Boutts f. Ellis, 1083 Bovey r. Skipwortb. 706. 707 Bowen r. Barlow. 1003 Bowen r. Evans. 213 Bowers v. Cater, 887 Bowers r. Shrewsbury lEarl of\ 981 Bowes f. Heaps. 678, 693 V. Law. 951 Bowker r. Bull. 127, 128. 720 Bowles's ( Lewis) case. 9. 810. 816. 836. 852, 854, 857, 862, 863, 667 to the :*] pages.] Bowles r. Kogers. 391 r. Stewart. 55. 62. 63, 64 Bowman r. Hyland. 958 Bown In re, 606. 607. 620 Bowring v. Shepherd. 924, 925 Bowver v. Woodman. 1005 BoxV. Barrett. 408, 410 V. Box. 527 r. Jackson. 527 Boxall V. Boxall. 520 Boxon V. Statbam, 904 Boycot r. Cotton. 459 Bovd, Exparte, 134 i?t% 139 r. Barker. 204 V. Sborrock. 788 Bores. In re: Boves v. Carriu. 902. 906 Boyle. Ex parte. 716. 721 V. Peterborough [The Bishop of i , 467 Bomton r. Bovnton. 420, 429 Bozou V. Farlow. 941. 242 V. Williams. 794 Brace r. ^lailborough \Tbe Duchess of). 360. 701, 706. 709. 712. 713. 717. 720 V. Webnert. 934 Brackenbury r. Brackenbury. 247 Braddick r.'Mattock. 276 Bradford (,Earl of) r. Komney {Eail of), 49 Bi-adford Banking Co. r. Briggs & Co.. Ixxviii Bradisb r. Gee. 1009 Bradley v. Hughes, 615 r. Eiches. 785 Bramston r. Kiuaston. 6 Bramwell v. Lacy, 951 Braudaos r. Barnett. 791 Brander r. Boles. 782 Brandling r. Ord. 703 r. Plummer. 307 Brandon v. Brandon. 126 Brazier v. Hudson. 223 Breadalbane (Marq. of) r. Chandos ^Marq. of). 49 Brealey r. Collins, 921 Brecon i^Mavor of^ v. Sevmour. 712. 716 ' Breedon r. Breed on. 82 Brenan c. Brenan. 25 Brenton v. Lulham. 55. 57 Brentwood Brick and Coal Co., In re. 383 Breton's Estate. 7m re. 313. 317. 545. 623 Brett V. East India and London Ship- ping Co., 941 TABLE OF CASES. xvu [The pa^ng refers to the [•] pages. 1 Brett r. Green well, 519 Brettle, Ki\ (JOT Brewer v. Swirles, 575 Brewster t. Aiij^ell, 4 t, 45 r. Clarke, 930 Brice t-. Bannister, 324 r. Stokes: 576 Bridge r. Bridge, 311, 321, 322, 325, 3:M, 1207 Bridgenian v. Dove, 740, 752 Bridgend Gas and Water Co. v. Dun- raven, Ixxviii Bridges r. Ix)ngman, 108 Bridgnian v. Gill, 249 Briggs f. Chamberlain, 1005 r. Jones, 795 r. Oxford (Earl ot), 857, 862 Bright V. Larcher, 741, 1('53 Brinckman r. Brinckmau, 622 Briscoe v. Briscoe, 430 Brisick r. Manners, 782 Bristol (Countess of) v. Hungerford, 1044 (Earl of) v. Hungerford, 717 Bristnwe v. Warde, 407, 4G7 Britain r. Rossiter, 896 British Empire .Shipping Co. v. Somes, 944 Mutual Investment Company V. Smart, 105 Provident Life & Guarantee As-soc., Lire; Be Ruvigne's case, 183 Seamless Paper Box Co., In re, 183 Britten r. Britten, 525, 581 Broadbent, Ex pade, 779 V. Gro\es, 376 V. Tliornton, 307 Broadwood, E.r parte, 786 Broadwood's settled estates, In re. 1009 Brodie v. Barry, 408, 419, 577, 578 V. Brady, 418 Bromfield, Ex parte, 1015, 1017, 1018, 1019 Bromhall v. Wilbraham, 727 Bromley r. Brunton, 301, 1082 r. Goodere, 1013 r. Smith, 678, 679, 693 V. Wright, 1045, 1053 Brook, Ex parte, 137 V. Badley, 988, 1042 Brooke r. Brooke, 599 Brooke r. Hickes, 530 r. Mostyn (Lord), 683 (Lord) r. ^Yarwick (Earl of), 740, 750 Brookman v. Hales, 57 V. Rothschild, 194 2 WHITE ON EQUITY. Broom r. Broom, 230 Broome r. .Monck. 9H6 Brough r. Oddy, 929 Brougham r. Squire, 50 Broughton r. Davies, 792 Broun v. Kennedy, 51 Brown's Trust Estate, In re, 284 Will, In ri; 43 Brown r. Adams, 249 r. Bamford, 609 V. Bigg. 9iy0. 1053 V. lihick, 924 V. Brown, 415, 416, 432, 965, 1010,1011 V. Carter, 336 V. Clark, 514, 519, 532 ' r. Collins, 526 V. Higgs, 1056 t: Jones, 335, 338, 340 f. Like, 610 V. Morgan, 5ri9 V. North, 571 V. Oakshot, 228 V. Parry, 420 V. Pearson, 960 V. Perrott. 386 V. Pocock, 612, 613 V. Williams, 1062 Browne v. Cavendish, 302, 304, 305 V. Cross, 213 V. Groombridge, 750, Ixxvii V. Lee, 121 Brownrigg r. Pike, 594, 996 Brownson r. Lawrence, 764, 768, 770 Bruce v. Bruce. 279 V. Garden, 125 V. Morice, 755, 758 Bruen v. Bruen, 459 Brummel r. Prothero, 744 Bninskill r. Caird, 982, 983 Bryan, In re, 531 Bryant v. Bull, 584 Brydges r. Phillips, 742. 744 V. Stevens, 867 Buchanan v. Angus, 976 r. Harrison, 1042, 1046 Buck V. Robson, 324 Buckell V. Blenkhorn, 281, 288 Buckland r. Pocknell, 381, 382 Buckle r. Mitchell, 335 Buckley's Trust, In re, 95 Buckley r. Howell, 282 V. Lanauze, 56 Buckmaster v. Harrop, 886, 8S7, 893, 899 Bucknell v. Bucknell, 942 Buckton r. Hav, 611 Bulkley r. "Wilford. 268 Bullock V. Menzies, 533 xvm TABLE OF CASES. [The paging refers Bullpin r. Clark, 517, 584 r.ulmer r. Hunter, 346 Bulteel, Lx piiiic, 782 r. Plunmier, 464, 466, 469 Bunker v. Coke, 418 Bunn V. Bunn, 350 v. Guv, 942 V. Maikham, 1085, 1088 Bunting v. Marriott, 745 Burchett v. Durdant, 14 Burden r. Blaster, 489, 490 c. Dean, 512,534 Burges v. Lamb, 865, 998 Burgess v. Wlieate, 367, 373. 392, 393, 982 • V. Moxon, 780, 788 Burke, In re, 784, 797 c. Tuite, 573 Burley v. Evelyn, 1042 Burnabv r. Griffin, 23 Burnell", E.v jmrte, 198 Burney v. Macdouald, 904 Burrell'scase, 334 Burrell. £.rj>rtWe, 800 v. Baskerfield, 994 V. Crutchley, 38, 272 BniTowes r. Gore, 307 Bursill r. Tanner, 588, Ixxvi Burt r. Truetuan, 91 Burting v. Stonard, 106. Burton v. Gray, 780 V. Hastings, 23 V. Hodsol, 984 V. Knowlton, 742 r. Newbery, 417 r. Vanheythuysen, 334 V. Wookey, 195 Burton's case, 629, 666 Bushman r. Pell, 488 Bustard v. Saunders, 35 Butcher v. Butcher, 465, 616 V. Harrison, 349 r. Jackson, 460 r. Kemp, 422, 423 Bute (Marq. ofj v. Cucynghame, 770 V. Eyder, 43 Butler's Will, In re, 1009 Butler V. Butler, 756, Ixxvi f. Cumpstou, 578, 598, 599 V. Kvnnersley, 874 V. M'iller, 676 Butricke v. Brodhurst, 429, 431 Buttanshaw ?;. Martin, 615 Butterfleld v. Heath, 338 V. Mott, 551, 557 Butterworth, lie ; Ex parte Russell, 345, 352 Button r. Downham, 629, 640, 657 Buxton, Exparte, 794 to the [*1 pages.] Buxton r. Lister, 915, 917, 920, 933 Byam v. Byam, 28, 46 V. Muuton, 1053 V. Sutton, 761 Caddick v. Skidmore, 229 Cadell r. Palmer, 40 Cadman r. C'adnian, 1025 Caerphilly Colliery Comp., In re. Par- son's case, 183 Cahill V. Cahill, 895 Calamy's (Mrs. ) case, 699 Caldwell v. Baylis, 861 Calisher r. Forbes, 713, 715 Callow V. Howie, 571 Cambridge v. Rous, 1037, 1056 Cameron, In re ; Nixon v. Cameron, 1045 Campbell r.Allgood, 866 V. Bainbridge, 616 V. French, 524, 526 V. Home, 447, 451 V. Ingilby, 416, 431, 433 V. Leach, 272, 277, 286 V. Walker, 176, 181, 209, 211,213,214 Campion v. Cotton, 346, 621 Canadian Oil Works Corporation, In re, Hay's case, 182 Candler v. Candler, 942 Cane v. Allen (Lord), 199, 201 Cann v. Cann, 664 Cannock v. Jauncey, 715 Cannon (Heir of) v. Pack, 715 Cant's Estate, Ee, 1003 Cape V. Cape, 546 Cape Breton Comp., In re, 194, 195 Ixxiv Capper v. Spottiswoode, 384 Cappur V. Harris, 920 Capron's Trust, In re, 469 Cardigan (Lord) v. Montague, 205, 206 Carey v. Carey, 177 V. Dovne, 789 Carleton v. Dorset, 473, 476, 480 Carlisle's (Bishop of) case, 809 Carlisle Banking Co. v. Thompson, 719, Ixxvii Carlon, E.v parte, 800 Carlyon r. Truscott, 87, 91, 95 Carr's Trusts, In re, 515, 520 Carr v. Eastabrook, 530 V. Ellison, 1004 t-. ErroU (Lord), 38 V. Taylor, 492, 534 Carriage Co-operative Supply Ass., In re, 183 Carson v. Sloane, 250 TABLE OF CASES. XIX [The pagiuf,' refers Carter, In re, 801 r. Anderson, 579 V. BariKirdiston, 768 V. Bletsoe, 459 V. Carter, 27«, 702, 705 V. Green, 904 V. Haswell, 105G V. Hind, 'SSS V. Palmer, 203 V. Sunders, 105 V. Taggart, 521, 522 v. Wake, 802 n Williams, 951 Cartwright ;;. Cartwriglit, 749 Carver v. Bowles, 428 V. Richards, 280, 444, 453 Casamajor v. Strode, 998 Casberd v. Att.-Gen., 780 V. Ward, 792 Casborne v. Scaife, 722 Castellan v. Hobson. 926 Castle V. Dod, 245 Castlemain (Lord) v. Craven (Lord), 861 Catling V. King, 906 Caton V. Caton. 894, 895 V. Hideout, 579, 580, 581. 582 Cator r. Pembroke (Earl of), 387 Caulfield v. Maguire, 123 Cavan (Lady) v. Pulteney, 406, 408 Cave V. Mackenzie, 249 Cecil V. Juxon, 598 Chadwick, Ex parte, 198 V. Doleman, 73 r. Maden, 249 Chalk V. Danvers, 248. Challis V. Casborn, 721 Chalmer v. Bradley, 212, 214, 972, 1006 Chalmers v. Storil, 423, 424, 429 Chaloner v. Butcher, 1009 Chamberlaine v. Chamberlaine, 903 Chamberlyne v. Dummer, 864, 868 Chambers v. Chambers, 24 V. Crabbe, 482 V. Howell, 197 V. Waters, 1-^0, 206 Champion v. Rigby, 199, 211 Chandler v. Pocoek, 977 Chandos (Duke of) r. Talbot, 459 Chaplin v. Horner, 978, 981 V. Young, 202 Chapman v. Biggs, 587 V. Call'is, 930 V. Chapman. 780, 781 V. Emerv, 3.30, 334 V. Gibsoii, 269, 270, 274, 275, 276 V. Midland Kail. Co., 864 to the [•] pages. ] Chapman r. Tanner, 3.57, 358, 366, 375 V. Wood, 608 Charlemont (Earl ofj »;. Si)encer, 562 Charles c. Andrews, 376 Charlewood r. Bedibrd (Duke of), 888 Charlton r. Durham (Earl of), 94 r. Low, 718 V. Kendall. 37, 46 Charter r. Trevelyan, 189 Chase v. Westmore, 376 Chassing v. Parsonage, 528 Cha.steauneuf f. Capevron, 9.30 Chattock V. Muller, 191, 249, 897 Chave v. Chave, 411 Chawner's Will, In re. 108 Cheale v. Kerwood, 326, 921 Cheslyn v. Dal))y, 948 Chester v. I'latt, 572 V. Powell, 769 Chesterfield, &c., Co. v. Black, 192 &c., Colliery v. Hawkins, 329 %\ Janssen, 151, 163, 172, 624, 675, 693 Chetwynd v. Fleetwood, 416, 432 Chichester v. Bickerstaflf, 979, 980 Childers v. Childers, 263. 266 Chinnock v. Saiusbury, 941, 954 Chipchase c. Simpson, 550 Chippendale. Ex parte, 783 Chissum v. Dew^es, 786. 941 Chitty V. Parker, 1046 Choat V. Yeates, 75U Cholmely v. Cholmely, 622 V. Paxton, 282 Cholmoudeley's case, 829 Christ's Hospital v. Budgin, 255 Christie v. Gosling, 26, 38, 41 V. Noble, 947 Christmas v. Christmas, 579 Christy ;•. Courtenay. 253, 255, 260, 262, 263, 267, 343, 348 Chubb V. Stretch, 589 Chudleigh's case, 827, 828 Chui-chill V. Churchill, 429 V. Dibben, 564 V. Grove, 699, 711 r. Small, 621 Churchman v. Hervey, 274 V. Ireland. 419 Churton v. Douglas, 950 Chute V. Lindesay, 197 Citizens' Bank of Louisiana v. First National Bank of New Orleans, 896 City of Loudon v. Nash, 933, 953 Clanricarde (Marquis of) v. Kenning, 212, 213 Clarges v. Albemarle, 622 Clarendon (Earl of) v. Barham, 754, 759 XX TABLE OF CASES. [The paging refers Claringbonld r. Cnrtis, 96-1, 966 Clark v. Clark, 197, 768 r. Cook, 513 r. Girchvood, 50 r. Glasgow Assur. Co., 935 V. Guise, 426 T. ISIalpas, 308 V. Smith, 285 Clarke's Trusts, In re, 606 Clarke c. Batters, 932 v. Fraukliu, 984, 997, 999, 1047 V. Grant, 897 V. Palmer, 796 V. Panopticon, 108 V. Pistor, 610 V. Reilly, 889 r. Royle, 381, 382 V. Swaile, 157, 179 V. Willott, 336 V. Wright, 330, 335 Clarkson v. Edge, 951 Clavering r. Clavering, 856 ' r. Yorke, 1083 Chixton r. Claxtou, 820 Clav & Tetlev. In re, 104 Claydon v. Finch, 607 CI ay pole, Kector of. Ex parte, 984 Clayton's case, 250, 641, 657, 666, 1161 Clayton v. Illingworth, 940 V. Wilton (Earl of), 341 Cleaton v. Gower, 953 Ciegg V. CI egg, 872 v. Edmondson, 64, 254 r. Fishwick, 59, 227 Clement ;;. Cheeseman, 1083 Clements v. Eccles, 343 V. Hall, 59, 60, 227 V. Welles, 951 Clementson v. Gandy, 413 Clerk V. Miller, 572 V. Nettleship, 338 r. Wright, 886 Gierke (Sir P. Jennings) v. Smith, 151 Clifford V. Turrell, 886, 901, 919 Clinan v. Cooke, 885, 886, 887, 892, 901 Clint, In re, 346 Clissold V. Cook, 1013 V. Cork, 1013 Clive V. Carew, 576, 607 V. Clive, 47 Clongh V. Lambert, 333. 338, 347 Clouter, Ex parte, 799, 800 Clowdsley v. IVlham, 73 Clutterbuck r. Clutterbuck, 749 Coape-t-. Arnold, 21, 30, 33 Coard v. Holderness, 748 Coates V. Coatgs, 126 V. Kenna. 51 V. Stevens, 414 to the [•] pages. ] Coates V. Williams, 348 Cochran's Estate, Ee, 134 Cochrane v. Willis, 912 Cockcroft V. Sutcliffe, 450, 454 Cockel V. Phips, 506, 516 Cockerell v. Cholmelev, 214. 278, 282 V. Essex (Earl of), 38, 41 Cockroft, In re ; Broadljent v. Groves, 376, 766, 886 Cocks, Ex parte, 798 Codrington v. Codrington, 409, 416 V. Lindsay, 407, 409, 416, 429 Coffin V. Coffin, 864, 865, 867, 868 v. Cooper, 462, 464 Cogan V. Duffield, 24, 25, 36, 51 r. Stevens, 1047 Cogent r. Gibson, 919 Cole V. Gibbons, 634, 638, 655, 660, 664. 672, 674, 676, 678, 693 V. Gibson, 152, 163, 695 V. Miles, 108 r. White, 886, 887 Colebrook's (SirG.) case, 214 Coleby v. Coleby. 762 Colegrave v. ISIanby, 57 Coleman v. Birmingham (Overseers of) 577 V. Seymour, 465 V. Winch, 721, 722 Coles V. Bristowe, 923, 928 V. Pilkiugton, 887, 888, 895 V. Trecothick, 157, 178, 208 Colleton V. Garth, 425 Collett r. Dickenson, 586 Collingwood r. Eow, 1001, 1003 Collins V. Burton, 335, 349 V. Collins, 379, 947 V. Lewis, 769 V. Prosser, 124 V. Stimson, 251 V. Stuteley, 954 V. Wakeman, 974. 1039, 1044, 1053, 1054, 1055 Collinson v. Collinson, 263 V. Patrick, 311 Collis V. Robios, 740, 745, 1053 Colman v. Sarrel, 296, 297, 301 Colmer v. Colmer, 533 Colt V. Nettervill, 963 Columbine v. Chichester, 930 V. Penhall, 346 Colville r. Middleton, 740, 749 Colwell r. Shadwell, 1008 Colyear v. IMulgrave, 326, 329 Colyer r. Finch, 77, 91, 93, 102, 388 Combe v. Hughes, 35 Comer v. Walkley, 375 Coming, Ex parte, 774, 782 TABLE OF CASES. XXI [Tho pnf,'ing refers Compton (Lord) v. Oxemien, !)Hl Coniugham v. I'lunkett, lilo, 327 Coiiington r. Gilkit, fiK! Conloii r. Moore, o79, oDO Conner v. Fitzgerald, 869 CVmolau v. Leyhuid, 089 C'onolly V. McDeriuott, 444 Cood V. Cood, !^88, 893 V. Pollard, :;85 Cook V. Collingridge, 197 r. Cook, f), 9, 1] V. Dawson, 108 V. Fearn, 52 V. Fountain, 252 V. Fowler, 790 Cooke's Trustees' Estates, Ee 890 Contract, Ee, 994 Cooke, Ex parte, 249 V. 124 V. Burtctliaell, 684 V. Chilcott, 936 V. Cooke, 944 V. Dealey, 1021, 1022, 1046 V. Fuller, 554 V. The Stationers' Company, 1049, 1050, 1055, 1056 V. Tombs, 8s6 r. Whaley, 815, 867 r. Williams, 510 r. Wilton, 703, 719 Cooksonr. Cooks()n,230, 978, 1010,1012 r. Keay, 990, 1012 Coombe, Ex parte, 781 Ex parte, /i<' Beavan, 783 Coombes r. Rlanstield, 930, 932 Coope I'. Cres.swell, 105 V. Twynam, 122, 124 Cooper, Ex parte, 2S8 V. Cooper, 407, 408, 409, 427, 429, 433, 449, 455 V. Gostling, 1006 V. Jaekson, 679 V. Jarman, 986 r. Jenkins, 126 V. Laroche, 611 V. Macdonald, 549, 564, 565, 597, 598, 605 V. Martin, 280 V. Phibbs, 58 V. Wormald, 894 Cooper's Trusts. In re, 999, 1050, 1051 Coote ('. Coote, 742, 743, 749 V. Gordon, 415 r. Jecks, 778 V. Lowndes, 764 Cooth V. Jackson, 248, 886, 899 Cope r. Cope, 757 V. De La Warr (Earn. 34 Copis V. Middletou, 126, 130, 132, 133 to the [*] pnges. ] Co])land )•. Davies, 793 Coppertiiwaite v. Tuite, 585 Coppin (•. Coppin, 362, 367, 386 V, Fernyhougli, 55, 62, 63 Cop])lestone, Ex parte; reiinaW, 136 Corballis r. Grainger, 579, 580, 581 Corbet v. Corbet, 750 Corbridge, Ex parte, 551 Cordwell r. Mackrill, 52 Curdwell's estate, Er, 520, 534 Corley v. Stallbrd (Lord), 50 Cornick v. Pearce, 994 Cornish c. Clark. 34.3, 348 Cornthwaite v. Frith, 305 Cornwall v. Hawkins, 951 Corser v. Cartwriglit, 91 , 102 Cory V. Eyre, 785 V. Thames Ironworks and Ship Building Company, 955, 959, 967 Cosby t;. Ashtown (Lord), 405, 413 Cosens' case, 8, 11 Cosens v. Bognor Eailway Co., 376, 377 Cosnahan v. Grice, 1087 Cosser v. Eadford, 305 Costake r. Till. 941 Costello V. O'Korke, 992 Coster V. Coster, 519, 522 Cotteen v. Missing, 326 Cotter V. Layer, 271 Cotterell v. Hampson, 80 V. Homer, 340, 353 V. Purchase, 897 Cotton V. King, 473 Cotton's Trustees and School Board for London, In re, 10 )4 Cottrel V. Harrington, 629 Court V. Buckland, 1045, 1053 Cousins, 1)1 re, Ixxix Cout.^ V. Acworth, 410, 414, 427 Coventry v. Coventry, 275, 277, 739, 747, 750, 753 Coverdale r. Eastwood, 895 Coward and Adam's purchase. In Ee, 521 Cowell, Ex parte, 785 V. Edwards, 121 V. Simpson, 384 Cowley V. Hartstouge. 990, 992, 993 (Earl) f. Wellesley, 855, 877, 878 Cowper I'. Cotton, 402 V. Scott 402, 459 Cowper's (Ladv) case, 545 Cowx V. Foster", 338, 347^ Cox, Ex parte, 720 V. Barnard, 334 V. Bishop. 798 V. Cox, 83, 95 xxu TABLE OF CASES. Cox V. Lyne, 547 c. Parker, 1057 Coxhead i: JMullis, 695 Coysegame, Ex parte, 509 Crabb i: Crabb, 259, 260, 263, 413 Crabtree v. Bramble, 977, 981, 992, 1010, 1012 Crat'kiiall r. Jaiison, 335, 341 Craddock's Trusts, Ee, 524 Craddock v. Owen, 1045, 1057 Cragrave v. Perrost, 465 Cramer's case, 1025 Cramer v. Moore, 329 Crampton v. Yarna Railway Co., 891, 929, 937 Crane v. Drake, 73, 111 Crawshay c. j\Iaule, 227, 940 Craythorne v. Swinburne, 120, 121, 122, 124. Credland v. Potter, 784, 797 Creed <;. Henderson, Ixxviii Cresswell, In re; Parkin v. Cresswell, 38 V. Dewell, 527 Crisp V. Pratt, 237 Croft v. Graham. 686, 691, 693 t. Slee, 1049 Crofton, In re, 1003 Croker v. Martin, 335 Crook V. Seaford (Corp. of,) 887, 888, 892, 900, 936 Crop V. Norton, 244, 251 Cro.sby v. Church, 563, 575 Cross V. Addenbrooke, 977 Crossley v. City of Glasgow Life Ass. Co., 803, 804 V. Elworthy. 343 Croughton's Trustsj^ In re, 606 Crow V. Kogers, 329 Crowe V. Ballard, 189, 214 Croxton v. May, 521, 522 Crozier v. Crozier, 32 Cruikshank r. Duffin, 107 Crump, lie, 526, 581 Cruse V. Barley and Banson, 970, 971, 1037, 1045 V. Paine, 923, 929 Cruttwell V. Lye, 941, 942, 950 Cubitt V. Smith, 935 Cud r. Rutter, 963 Cuddec r. Kutter, 907, 963 Cuir V. Hall, 991 Cull V. Sliowell, 410 Cnllin's Estate, Be, 340 Culpepper's cas^, 702 Culpepper t".*Aston. 73, 80, 90 Camming, In re, 511 V. Forrester, 409 Cunningham's Settlement, In re, 611 [The paging refers to the [*] pages. ] Cunningham v. Moody, 974, 976, 977, 1008 Cunuinghame v. Anstruther, 449, 461 Cunynghame v. Thurlow, 462 Curling v. Lycester (Lord), 803 V. May, 989 V. Townshend, 685, 693 Currant v. Jago, 255 Curre v. Bowyer, 986 V. Nind, 336, 337, 338 Curteis's Trusts, In re, 2.59 Curteis v. Wormald, 1048 Curtis, In re; Hawes v. Curtis, Ixxvi V. Fulbrook^ 97 Curtius V. Caledonian Fire & Life Ins. Co., 804 Curwyn v. Milner, 630, 634, 646, 654, 659, 672, 677, 694 Cusack V. Cusack, 22 Custance v. Bradshaw, 233, 234, 997 Cutler, In re, 520, 523, 527 Cutten V. Sanger, 451 Cutts, Ex parte, 892, 893, 933 V. Salmon, 200, 213 D'Abbadie v. Bizoin, 443, 461 Dacre v. Patrickson, 747, 763 Dady v. Hartridge, 768 Daglish, Ex parte, 787 Baking v. Whimper, 336, 337 Dakins r. Beresford, 550 Dale & Co., Ex parte, 250 Dale V. Hamilton, 219, 229 Dally V. Wonham, 679 Daly V. Beckett, 851 Dane's Estate, Li re, 64 D'Angibau, In re, 329 Daniel's Settlement Trusts, In re, 51 Daniel v. Arkwright, 449 V. Skipworth, 801 Daniell, Ex parte, 184 Darbey v. Whitaker, 941 Darby v. Darby, 229, 232, 234 Darcy v. Croft, 550 Darke ?;. Williamson, 108, 802 Darkin v. Darkin, 582 Darley v. Darley, 546 Darlington (Lord) v. Pulteney. 296 Darnley (Lord) v. London, Chat. & Dov. R. Co., 936 Darrell v. Whichot, 60 Dashwood v. Bithazey, 801 V. Jermyn, 895 V. Peyton, 406, 409. 410 Daubeny v. Cockburn, 444, 452, 453, 454 Daun V. City of London Brewery Co., 714 TABLE OF CASES. XXIU [The paging refers Daunt r. Daunt, 71fi Duvull ('. New River Co., 1057 Davenport v. Bishop, :j:il. f. Colt man, 104(5 V. Davenport, 47 Davers r. Dewes, lor)(> Davidson, In re, 1005, 1007, 1010, Ixxix V. Foley, 1050 V. A\'ood, 577 Davies r. Ashford, 744, 748, 1010. r. liusli, 75'2 , I'. Cooper, 670, 679, 686 .V. Davies, 22, 52 V. Games, 232 V. Good hew, 993 V. Hodgson, 575, 619 V. Jluguenin, 459, 462 V. liumphreys, 123 t'. 'Jenkins, 571, 584 V. Leo, 853 V. Otty, 266, 305 V. Thomas, 387 V. Topp, 768 Davis's Estate, Jn re, 982, 984 Davis v. Bowsher, 791 I'. Davis, 762 V. Harford, 286 V. Haycock, 923, 925 V. Marlborough (Duke of), 647, 678, 679 V. Page, 433 V. Symonds. 222 r. ITpliill, 455 Daw V. Terrell, 782, 784 Dawes v. Creyke, Ixxv V. Scott, 744, 745 r. Tredwell, 617, Ixxvii Dawson, Ex parte, J?e Dawson, 352 V. Bourne, 548 V. Clarke, 1056 V. Kearton, 333 V. Massey, 206 V. Prince, 601 Day r. Merry, 865 Dayrell v. C'hampneys. 816, 832, 859 Deacon t'. Cohiuhonu, 253 Deakin v. Lakin, Ixxv, Ixxvi, Ixxvii Dean v. McDowell, 196 Deane v. Izard, 898 Deare r. Soutten, 533 Dearmer, In re, James r. Dearmer, Ixxv De Beauvoir r. De Beauvoir. 990 De Biel v. Thompson, 895 De Busscho c. Alt, 177, 212 De Chatelain r. De Pontigny, 289 Deerlmrst (Lord) c. St. Albans (Duke of), 18, 21, 38 to the [•] pages. ] Deeth r. Hale, 972, 1006 Dcg r. Dog, 426 Degge's case, 1015 De Haviland t'. De Saumarez, 2f> De Hoghton v. Money, 337, 3.53 De la Garde v. Lempriere, 518, 529 De Lancey, Jie, 982 Delane v. Delane, 254 De la Touche's Settlement, In re, 52 Delves v. Delves, 208 De Mandeville v. Crompton, 481 De Mattos v. Gibson. 966 De Montmorency r.jDevereux, 214 Dening v. Ware, 302, 326, 333 Dennis v. Badd, 1019 Deutou V. Davies, 251 V. Denton, 857 V. Donner, 179, 180, 200 Derbishire r. Home, 619 Dering v. Winchelsea (Earl of), 114, 120, 122 De Rochefort v. Dawes, 770 De Kos's Trust, Ixxvii Derwentwater's (Lord) case. 845 Desart (Lord) r. Goddard, 889 Devaynes v. Noble, 93 V. Kobinson, 94 Devenish v. Baines, 903 De Visme, lie, 256. 257 Devitt V. Faussett, 585 Devoy v. Devoy, 223, 256. 262, 264 DeAvar r. Maitlaud, 419, 430, 431 Dewdney, Ex parte, 799 Dewhurst, Ex parte, 251 De Winton d. Brecon (Mayor of), 706 Dews r. Brandt. 6Ho Diamond Fuel Cqpipany, In re ; Mit- calfe's case, 183 Dicconson ?'. Talbot, 205 Dickin v. Edwards, 748 V. Hamer, 877 Dickinson v. Burrell, 335 V. Dickinson, 82 V. Shaw, 237, 240, 241. 242, 261 Dickson r. Robinson, 424 Digby, Ex parte, 754, 757 V. Legard, 967. 973, 1U29, 1030, 1033, 1040, 1041 Dike V. Ricks, 90 Dilkes V. Broadmead, 105 Dillon t'. Blake. 18, 25 V. Coppin, 297, 314, 328 V. Grace, 280 V. Parker, 406, 409, 429. 431, 432 Dillwyn r. Llewellyn, 328, 885 Dilrow V. Bone, 302 Dimes v. Grand Junction Canal, 204 XXIV TABLE OP CASES. Dimsdale r. Robertson, 944 Diiiliam v. Bradford, 948 Dinn v. Grant, 394 Dipple c. Corles, 310. 311 Disher v. Disher, 978 Disney, in n\ 520 Ditchara c. Worrall, 695 Dixie V. Wright, 10-25 Dixon V. Dawson, 1045, 1053 V. Dixon, 579, 580 V. Gavfere, 382, 1010 r. Muckleston, 780, 781, 796 r. Olmius, 547 V. Parker, 897 V. Sampson, 413 Doble, Ex parte, 340 Dobson V. Land, 188 Dodson V. Hay, 32, 976 Doe V. Ball, 349 * (1. Bromley v. Bettison, 287 V. Chichester, 413 V. Claridge, 98 d. Garnons v. Knight, 326 V. Hicks, 31 V. Hogg, 798 V. James, 336, 337, 339 d. Jones v. Hughes, 97, 98, 99, 101 V. Laming, 798 V. Lewis, 334, 335, 341 d. Lewis v. Hopkins, 334 d. Newman r. Rusham, 335 f. Oliver. 288 V. Rae, 337 d. Richards v. Lewis, 484 V. Rolfe, 338, 341 V. Rowe, 335 d. Tunstill v. Bottriell, 334, 337 V. Webber. 337 ' r. Weller, 272, 280, 285, 286 D'Oechesner v. Scott, 607, 608 Doherty v. Waterford and Limerick Railway Company, 912 Doloret v. Rothschild, 921 Dolphin V. Aylward, 334, 335, 353, 754 Dolton r. Hewin, 89 Donaldson v. Donaldson, 310, 312, 323, 982, 983 Donctister v. Doncaster, 20, 26, 32, 38, 1006 Done V. Whally, 133 Donnell v. Bennett, 916, 951 Donohoe v. Conrahy, 302, 312 Doolan v. Blake. 608 Doran v. Wiltshire, 80, 82 Dorchester (Lord) v. Effingham (Earl of), 420 Doughty V. Bull, 991 Douglas V. Congreve, 18, 017 V. Culverwell, 203, 208, 897 [The paging refers to the [*] pages.] Douglas V. Douglas, 107, 429 V. Howland, 120 Douglasse v. Waad, 334 Dover v. Buck. 177, 213 Dowbiggin v. Bourne, 131 Dowell V. Dew, 272, 277, 280, 285, 286, 287 Dowling V. Betjemann, 964 V. Hudson, 83, 84 t\ Maguire, 572 Down V. Ellis, 263 Downes v. Grazebrook, 178, 179, 187. 211 V. Jennings, 482, 483, 484 Downs V. Collins, 940 Downshire (Marquis of) v. Sandys (Lady), 857, 805, 867, 868 Dowson V. Bell, 420, 421, 424 Drake, Ex parte, 798 V. Trefusis, 982, 983 Drant v. Vause, 1003 Drever v. Mawdesley, 307 Drew V. Lockett, 128 V. Martin, 258, 267, 268, 348 Driscoll, Ee, 797, 804 Driver v. Ferrand, 742 Drohan r. Drohan, 111 Druce v. Denison, 413 Drummond v. Tracy, 90, 91 Drury v. Drury, 485 V. Scott, 596 V. Smith, 1071, 1072, 1079 Dryden v. Frost, 385 Drysdale v. Piggott, 125 Duckett V. Thompson, 36 Dues r. Smith, 526 Dul3Qeld v. Elwes, 1073, 1074, 1077, 1078, 1084, 1087 V. Smith, 401 Duffy's Trust, In re, 514 Dugdale r. Dugdale, 386, 769 Duggan ('. Duggan, 445 Du Hourmelin v. Sheldon, 987 Duke V. Sylvester, 466 Dumbell, 'Ex parte, 199 Dummer's Will. In re, 982 Dummer v. Pitcher, 256, 261, 413 Dumper v. Dumper, 263 Dunbar v. Tredennick, 209, 211, 214 Duncan v. Bluett, 31 V. Campbell, 534 V. Cashin, 603 V. Tindal, 930, 932 Duncan Fox & Co. v. North and South Wales Bank, 131 Dunch V. Kent. 80, 307 Duncomb v. Duncomb, 829 Duncombe v. Greenacre, 508, 510, 520 V. Mayer, 965 TABLE OF CASES. XXV [The pagiuf,' refers Duncuft V. Albrecht, 921 Duiidas V. lilake. H'.i V. Dutens, :}42, 8i)4 Dungannou (Lord) v. Sinitli, 40 Dunk r. Fcniicr, 741 Dunklcy v. J)iu)kl('y, 519, 520 Dunlop, 1)1 re; Dunlop v. Buiilop, 771 Dunii V. Kyan. !S64 Duuue V. Boyd, 1080, 1081, 1083 V. Dunne, 982, 983 V. Eno;li,sh, 190 Dunnill's Trusts, In re, 48 Dmoll r. Piitchard, 954 Durlianv v. Crackles, 511, 514, 515 Durour r. Motteux, 970. 971, 1029, • 1031, 1033, 1035, 1030, 1037, 1054 Durrant v. Eicketts, 583 Du Vigier v. Lee, 721,' 722 Dyas V. Cruise, 286, 287 Dye V. Dye, 545 Dyer v. Dyer, 236, 243, 255, 257, 1020, 1021 Dvke V. Kendall, 382, 420 Dyke's Estate, In re, 271, 272, 277, "985 Earl v. Ferris, 551 & Webster's Contract, In re, 104 Earlom ?'. Saunders, 978, 990 Early v. Early, 770 East V. Cook, 415 V. Twyford, 20, 32 East Greensted's ease, 703 East India Co. v. Donald, 900 V. Henchman, 191, 941 r. Nutliumbadoo Veer- aswamy INIoodelly, 886 Ebrand v. Dancer. 237, 244, 255, 259 Ebrington v. Ebrington, 432 Eecles r. Thawill, 721 Eddels r. Johnson, 768 Ede V. Knowles, 334, 780, 789, 792 Eden v. Weardale Iron and Coal Co., Ixxiii Edge V. Worthington, 780, 782 Edgeworth v. Edgeworth, 457 Edmonds v. Denniugton, 473, 476 Edmunds v. Povey, 699, 702 V. Townshend, 524 Edwards v. Abrey, 577 V. Bingham, 52 V. Browne, 676, 679, 682, 684, 685, 686 V. Burt, 677, 679, 684, 685, 686, 693, 694 V. Clay, 965 to the [*] piifjOP.] Edwards v. Dewar, Ixxvii V. Fashion, 224 V. Fidel, 244 V. Freeman, 753 V. Jones. 314, 319, 547, 1078, 1079 V. Lewis. 54, 61 V. Martyn, 5^9 V. Meyrick, 199, 201 V. Morgan, 431 V. Pike, 2 IS. 904, 905 V. Tuck, 990, 9!)3 V. Warwick (The Countess of), 977, 978, 981, 991, loos, 1009 V. AVest, 1000, 1001, 1002 V. Williams, 201 Edye v. Addi-son, 531 Ecdes V. Eedes, 508, 533 Egerton v. Brownlow (Earl of), 20 Eidsforth v. Armstead, 100 Ekyn's Trusts, In re, 256, 261 Eland v. Baker, 463 V. Eland, 84. 85, 89, 91 Elder, Kc parte, 560 Elias V. Griffith, 850 V. Snowdon Slate Quarries Co., 856 Elibank (Lady) v. Montolieu, 486, 493, 504. 508, 516, 517, 529 Elliot V. Brown, 226 V. Eliott, 237, 239, 261, 204 V. IMerryman, 72, 77, 84 Elliott, Assignees of. In re estate of, 798 Ann, In the goods of, 554 V. Cordell, 514, 515 V. Dearsley, 741. 766 V. Edwards, 362, 369, 387 V. Fisher, 984, 1006 r. Remington, 525 Ellis's Trust, In re. 605 Ellis V. Baitrum, 1044 V. Emmanuel, 122, 137, 138, 139 V. Johnson, Ixxvii V. Lewis, 420, 424 r. Nimmo. 271, 297, 328 Ellison r. Ellison, 275, 291, 300, 545, 912, 1087 Elsey V. Cox, 343 Elton V. Elton, 45 Elvy V. Norwood, 716, 721, 722 Elwes r. Elwes, 50 Elwin r. Elwin, 990 Elworthy r. Bird, 943 V. Wickstead. 527 Emanuel v. Parlitt, Ixxv Eml)lyu r. Freeman, 971, 1030, 1033, 1047 XXVI TABLE OF CASES. Emma Silver Mining Co. r. Grant, 186 V. Lewis, 186 Emmerson's case, 923 Emmett v. Totteham, 678 Empress Engineering Co.. lie, 330 Emuss c. Smith, 386, 768, 769, 1003 England (Bank of) case, 227 England r. Codrington, 897 V. Curling, 940 England r. Downs, 480, 482, 484 Englefield Colliery Co., In re, 183 Eno V. Tatham, 76.3, 764 Erlanger v. New Sombrero Phosphate Co., 185, 195 Ernest v. Nicholls. 187 Erriugtou v. Aynesley, 933 Erskine's, Trusts, In re, 530 E.sdaile v. Oxenham, 376, 392 Essex V. Atkins, 566, 581 V. Essex, 233 Este V. Este, 289 r. Smythe, 550 Estwick r. Caillaud, 308 Etna Insurance Co., In re Owens, 182, 193 Eton College r. Beauchamp, 846 European Bank, lie; Agra Bank claim, 791 Eustace v. Robinson, 36 Evans, Ex parte, 712 In re, 578, 995 V. Bagwell, 303 V. Chesshire, 659, 678, 693 V. Chester, 589 V. Cockeram, 749, 750, 752 V. Davis, 950 r. Evans, 38, 563, 746, 748, 750 V. Jennings, 309 V. Jones, 347 r. Llewellin, 676 V. Morgan, 589 V. Poole, 392 i: Smithson, 759 V. Tweedy, 376 I'. Walshe, 70, 71 V. Wood, 928 V. Wyatt, 754, 770 Evelin's (Lady) ca.se, 808, 816, 818, 841 Evelyn r. Evelyn, 735, 754, 755 V. Templer, 328, 337 Ewart V. Chul)b, .526 Ewer V. Corbet, 106, 111 Ewing V. O.sbaldiston, 394 Exel V. Wallace, 18 Exmouth (Vise), In re; Vise. Ex- mouth V. Praed, 40 Exton V. Scott, 326 p]yre's case, 1008 Eyre v. Dolphin, 56, 62, 63 [The paging refers to the ['] pages. ] Eyre v. McDonnell, 177 V. Marsden, 1042. 1043 V. Popham 899 V. Sadlier, 385, 387 V. Shaftsbury (Countess of), 483, 943 Eyton V. Denbigh, &., Eailwav Co.; 378 Fagg's (Sir John) case, 702 Fairclough v. Johnstone, 416 V. Marshall, 951 Falcke v. Gray, 917, 929, 964 Falkner v. Grace, 741 Farebrother v. Wodehouse, 127, 128, 130 Farhall v. Farhall, 109, 110 Farley, Ex parte, 782, 785, 788 Farmer?;. Dean, 181 V. Martin, 444, 453 Farquarson v. Cave, 1079, 1081, 1086 Farral v. Davenport, 887, 890 Farrant v. Lovell. 859, 860 Farrar v. Winterton (Earl of), 984 Farrington v. Parker, 301, 581 Fauconberge (Lord) r. Fitzgerald, 296 Faulkener v. Hollingsworth^ 990 Fawcett v. Whitehouse, 59, 190 Fawell V. Heelis, 359, 361, 367, 368, 391 Fearenside v. Derham, 786 Fearnside v. Flint, 722 Fearon v. Desbrisay, 460 Featherstone v. Fen wick, 774, 780 Featherstonhaugh v. Fenwick, 59, 61, 196 Fechter v. Montgomery, 953 Fell V. Chamberlain, 897 Fellow r. Jermyn, 1023 Fells V. Read, 964 Fenner v. Taylor, 518 Fenwick v. Potts, 782 Fereday v. Wightwick, 230 Fereges v. Robinson, 728, 729, 733 Ferguson v. Gibson, 134, 135 V. Tadman, 959 V. Wilson, 954 Fermor's case, 849 Ferraby v. Hobson, 208 Ferrand v. Wilson, 877 Ferrars v. Cherry, 703 Ferrers (Earl) «;."^Stalibrd, &c. Rail. Co., 378 Ferrier r. Ferrier, 112 Ferris r. Mullins, 775, 782 Fettiplace v. Gorges, 562, 598 Field V. Brown, 877, 1021 TABLE OP CASES. XXVU [The paging refers Field V. Cook, HOT V. Donoughniore (Lord). 30G, 307 ' V. Evans, 608 V. Lonsdale, 24G, 305 V. Moore, 546, 754 V. Pickett, 1053 V. Sowle, 568, 571, 584, 586 Fielden v. Slater, 951 Fielding v. "Winwood, 276 Finch, Inj-e, 313 V. Finch, 255, 260, 261, 264, 545 Finch V. Shaw, 388 I'. Winchelsea (Earl of) 328 Firmin v. I'ulham, 683 Firth I'. Midland Eailway Co., 913, 948 V. Ridley, 934 Fisher v. Dixon, 786 V. Fisher, 745. 747 Fitch V. Weber, 10 12, 1044 Fitzer v. Fitzer, 338 Fitzgerald r. .Jcrvoise, 998 Fitzgibbon v. Blake, 585 V. Pike, 546, 598, 599 V. Scanlan, 54 Fitzroyu Richmond (Duke of), 449 F'itzsimons v. Fitzsimons, 411 Flamank, Ex parte, 1025 Flanagan v. Flanagan, 969, 970, 972, 1021, 1022, 1029, 1038 V. Great AVestern Railway Co., 181 Flavell, In re; Murray v. Flavell, 331 Fleet V. Perrins, 507, 603 Fleetwood, In re, 903 r. Charnock, 122 Fleming v. Armstrong, 619 V. Buchanan, 273, 432 V. Carlisle (Bishop of), 809, 841 V. Fleming, 809, 816 Fletcher, Ex parte, 800, 805 V. Ashburner, 869, 968, 1030 V. Chapman. 1047, 1048 V. Fletcher, 326, 333, 334,942 V. Robinson, 977 V. Sedley, 343, 348 Flight V. Bentley, 798 Flint V. Brandon, 933 V. Warren, 1045 Flory V. Denny, 301 Flower v. Buller, 586 Floyd V. Buckland, 887 Floyer i. Bankes, 1020 r. Sherrard,154, 155, 157 Foden v. Finnev, .527 Foley V. Burnell, 28, 38, 39 to the [•] i»nges.] Folingo r. Martin, 956 Follett r. Tyler, 597, 977 F^oone c. Blount, 976 # Foord r. Baker, 55 Foot V. Jones, 6.57 Forbes v. Adams, 1005 V. Forbes, 311 V. Jackson, 125, 128, 720 V. Limond, 307 V. Peacock, 85, 86. 90, 91, 94, 95, 98, 99, 1092 V. Ross, 189 V. Stevens, 233, 997 Ford, Re, .520, 532 V. Olden, 188 V. Peering, 965 V. Ryan, 83 • %: Stuart, 336, 339, 341 V. Tynte, 868 Fordyce v. Willis, 252 Forrest, In re. 947 V. Forest, 255, 264 V. Prescott, 739, 746 Forrester v. Cotton, 409, 410 V. Leigh (Lord), 756 Forse v. Forse, 245 Forshaw v. Higginson, 108 Forster v. Abrahani, 205 r. Hale, 890. 892 Fortescue v. Barnett, 318, 319, 320 V. Gregor, 278 Fosbrooke v. Balguy, 70 Foss V. Foss, 580 Foster v. Blackstone, 389 V. Cook, 420, 424 V. Foster, 1023 V. Hall, 309 and Lister, In re, 338 V. Parker, 802 V. Roberts, 678, 679, 685 Fothergill, In re, 136 V. Fothergill. 272. 274, 277 r. Rowland, 915, 918 Fountayne v. Grimes, 640 Fourdrin v. Gowdey, 741, 987 Fourth City ISIutual Benefit Building Soc. V. Williams, 718, 719 Fowke V. Draycott, Ixxv Fowkes r. Pascoe, 251, 252, 253, 254. 256, 268 Fowler's Trust, Be, 408, 411, 427, 428 Fowler v. Fowler, 50, 621 V. Scott, 1023 V. Willoughby, 749 Fox V. Charlton, 409 V. Fox, 259. 261,262 V. Hawks, 317 V. Mackreth, 141, 174, 175, 179, 643, 074, 694 XXVUl TABLE OF CASES. [The Imaging refers Fox V. Wright, 683, 693 Foxcrot't. i: Lister, 881, 885 Foxwell i\ Lewis, Lxxix "Frail v. Ellis, 382, 387 Frame v. Dawsou, 886, 890 Framptou v. Frampton, 310, 347 France v. Clark, 776 Francis v. Brooking, 520, 521 V. Clemow, 468 r. Wigzell, 541, 583, 584, 586 Francklyn r. Fern, 897 Frank v. Frank, 433, 1005 Frank v. Standish, 405 Franklin v. Franklin, 255 Franldinski v. Ball, 954 Franklyn v. Tuton, 935 Franks, Ex parte, 579 V. Bollans, 179, 1005 r. Price, 32 Fraser, In re, the goods of, 594 (1. Thompson, 346 Frayne v. Taylor, 986 Fream v. Bowling, 749 Frederick v. Aynscombe, 976 Freeman v. Bishop, 677 V. Ellis, 768 V. Fairlie, 511, 965 V. Pope, 343, 344, 345, 349 Freemoult v. Dedire, 73 Freke r. Barrington, 408 Freme v. Brade, 677 French v. Chichester, 744 V. Davies, 420 V. French, 343, 348, 349, 352 Frere v. Moore, 388 Frewin v. Frewin, 1025 Frith V. Cartland, 249 Fritz V. Hobson, 959 Fry r. .Capper, 611 Fulham v. Jones, 976 Fuller's case, 629, 667 Fullerton v. Martin, 20 Fiirber, Ex parte, 790 Fursaker v. Robinson, 275' Fyfe V, Arbuthnot, 50 Fvtche V. Fytche, 415, 420, 431, 432, 434 Gabbett v. Lawder, 67 Gadbury, Re. 256, 267 Gatley's Settlement, In re, 614, 615 Gainsborough v. Gainsborough, 740 Gainsford v. Dunn, 468, 469 Gale V. Gale, 330 V. Williamson, 336, 347 Gall V. Fenwick, 762, 771 Gallagher v. Nugent, 571 to the [•] pages. ] Galton V. Hancock, 727, 729 753, 768 Gannon v. White, 319 Gardiner v. Fell, 418 V. Gardiner, 340 Gardner's Trusts, 1006 Gardner v. Gardner, 545, 581, 583 V. Marshall, 520 V. McCutcheon, 196 V. Parker, 1079, 1083, 1088 V. Walker, 529 Garforth v. Bradley, 529 Garmston (Eector of), In re, 984 Garnett v. Acton, 986 Garrard v. Dinorben (Lord), 333 V. Lauderdale (Lord), 303,304, 308 Garrett v. Wilkinson, 268 Garrick v. Taylor, 244, 253 Garry v. Sharratt, 800 Garth v. Cotton (Sir John Hind), 33, 806, 851, 852, 853, 859, 870, 871, 1214, 1215 V. Townsend, 281, 282 Gascoigne v. Thwing, 247, 248 Gaskell's Trusts, 618 Gaskell v. Gaskell, 305 Gaston v. Frankum, 571 Gayuer v. Royner, 126 Gedye %\ Matison, 126 Gee V. Gurney, 458 V. Liddell, 310 V. Pack, 136, 137, 139 General Exchange Bank v. Horner,185 General Provident Assur. Co. , In re, 776 General Provident Assur. Co., In re ;■ Ex parte, National Bank, 721, 776, 777, 778 General South American Co., In re, 111 Genese, In re; Ex parte District Bank, Ixxvi Gent V. Harris, 520, 521 V. Harrison, 872, 877 George's case, 262 George v. Howard, 252, 253 V. Millbanke, 336, 349 Geraghty v. Malone, 803 Gerrard ii. O'Reilly, 694 Gervais v. Edwards, 934, 944 Giacometti v. Prodgers, 530 ' Gibbiusi'. Eyden, 768, 770 Gibbous V. Baddall, 359, 362, 363, 367, 379, 387 V. Eyden, 386 V. Kibbey, 524, 525 Gibbs V. Daniel, 199, 201 V. Glamis, 304 V. Harding, 942, 943 V. Ramsey, 1053, 1054, 1055 TABLE OF CASES. XXIX [The paging refers to the ['i pagfis.] Gibson v. Gilison, 420, 421, 421 V. Iriyo, iJliO v. Jeyes. 170, 178, 200 ?'. Kiiiven, 405 Giddings r. Giddings, 50, 02, 03 Gilbert v. Lewis, 547. 54h. 550 . V. Overton, :502, 312, 325 Gilbertson ;;. Gilbertsoii, 743. 750 Gilbey, Exjicirte; Jn re lU'dell, 130 Gilchrist u. CatoT, 514, 532, 533 r. 'Herbert, 805 Giles r. Perkins, 701 Gillillan v. Henderson, 942 Gillespie r. Croker, 1087 Gillett r. I'eppereorne, 104 V. Thornton, 045, !)46 Gillies?;. Longlands, 077, 1007, 1013 Gillisr.'MeGhee, 041 Ginesi v. Cooper, &e. , Co. , 050 Girdwood, In re, 780 Gist, In re, 1018 Gittens v. Steele, 748 Glaister v. HeAver, 255, 348, 535 Glanvill, In rr, Ixxvii Glassinifton r. Tliwaites, 190 Gleaves'r. Paine, 510, 523 Glede v. Glede, 720 Glegg i\ Edmondson. 59 V. Kees, :\m, 308 Glenorchy (Lord) r. Bosville, 1, 18, 10, 20, 30, 32, 40, ;;53 Gloucester Banking Co. (Lim.) r. Phillips. 588 Glover, Be, 311 r. Hall, 540 Glynn, Ex parte, 784 V. Locke. 83 Godber v. Laurie, 524 Goddard v. Snow, 481, 482 V. White. 120 Godfrey's Trusts. In re, 515, 527 Godfrey v. Harbcn, 570 I'. Tucker, 713 V. Watson, 708 Godsall V. Webb, 319 Godwin r. Kilsha, 275 Gold r. Kutland, 508, 1000 Goldicutt V. Townseud, 805 Goldsmith v. Kussell, 349 Gooch's case, 334, 345 Goode V. Burton, .370 Goodfellow r. fioodfellow, 422, 424 Goodright v. Moses, 334, 338 Goodwin v. Gray. 137 V. Loe, 752 r. Waghorn, 778 Goodwright v. Hodges, 245, 247, 252 Goodwyn r. Goodwyn, 275, 432 V. Spray, 871 Gordon, In re, 1010, 1012 •)). Atkinson, 11)44 V. hutr, 748 V. Graham, 714 V. Scott, 59 r. Woodford, 855 Gore, E.f parte, 198 and I )n rant's case, 383 r. Kiiiglil. 508 Gorge's case, 202 Goring r. Nash, 275, 328 Gosling V. Carter, 00, 90 V. Gosling, 20, 38, 41, 250, 239 V. Warburton, 420 Gossett's Settlement, In re, 449 Gould V. Oakden, 078 r. Robertson, 307 Gould V. Teague, 1003 , Goulder r. Camm, 540, 009 Gover r. Davis, 984 Gowan, Li re; Gowan v. Gowan, 30, 37, 521 Gower r. Grosvenor, 38 Gowland v. De Faria, 213, 078, 079, 080, 093, 094 Grace, Ex parte, 58 V. Bavnton, 900 Graham's Trusts, Re, 550 Graham v. Fitch, 585 V. Furber, 344 V. Londonderry, 545, 021, 622, 023 V. O'Keeffe, 343, 347 V. Oliver, 287 V. Stewart, 20, 34 Grant, In re, 510 V. Grant, 313, 540, 551, 023 r. Mills, 379, 391 Granvill (Lady) r. Beaufort (Duchess of), 740 Gravener v. Hallam, 1049 Graves Minors, Re, 1003 V. Forman, 400 r. Hicks, 34, 754 Gray r. Grav, 310 V. Johnston, 100, 112 V. Minnethorpe. 742, 747 V. Seckham, 137. 130 Grayson v. Deakin, 422 Grazebrook r. Percival. 484 Great Berlin Steamboat Co., In re, 254, 351 Great Eastern Kail way Co. r. Turner, 240 Great Luxembourg Railway Co. r. Magnay, 192 Great Southern & Western Railway Co.. In re; Ex parte Duke of Leinster, 1009 XXX TABLE OF CASES. [The paging refers to the [*] pages. ] Great ed r. Created, 764, 771 Greatley v. Noble, 572 Greaves v. Powell, 748 Greaves's Settlement Trusts, In re, 978 Greedy v. Lavender, 508, 530 Green i\ Bank of England, 254 V. Britten, 416, 417, 548 r. Carlill, 582 V. Ekins, 24, 42 r. Green, 409, 416, 600 V. Jackson, 1055 V. Lowes, 105 V. Marsden, 547 V. Otte, 519 r. Pulstord, 448 * V. Stephens, 32, 977 Greene v. Cole, 861 r. Greene, 742 Greene v. West Cheshire Railway Co., 936 Greenfield v. Bates, 201 Greenhill v. Greenhill, 977 V. Isle of Wight Railway Co., 933 Greenlaw v. King, 203, 204 Greenway v. Greenway, 994 Greenwood v. Greenwood, 682 V. Penny, 407, 419, 434 Greerside v. Benson, 123 Greetham r. Colton, 90, 101 Gregory v. Gregory, 177, 211, 212 V. Lockyer, 594, 595 V. Mighell, 887, 901 Gresham Life Ass. Soc, Ee, 927 Gresley r. INIousley, 200, 212, 880 Gretton v. Haward, 406, 432, 433 Greville v. Browne, 468, 741 Grey v. Cockerill, 965 V. Grey, 239, 255, 260, 261, 262, 263 Crier's Estate, In re, 22, 23, 44 Grier v. Grier, 22, 23. 44 Grierson v. Cheshire Lines Committee, 913, 914 V. Evre. 871 Grieshach v. Freemantle, 1010, 1012 Grievson v. Kirsopp, 993 Griffin v. Griffin, 55, 61 V. Stanhope, 337 Griffith V. Buckle, 22 V. Kicketts, 306, 984, 997, 1047 V. Rosea wen v. Scott, 278, 410, 416 Griffiths V. Pruen, 1053 Grigby r. Cox, 537, 540, 567, 581 Griggs V. Gibson, 432 V. Staplee, 483 Grirostone, Ex parte. 1015, 1016, 1019 Grimwood v. Bartels, 1023 Grissel, In re, 579 V. Bristowe, 923, 925 V. Swinhoe, 407, 408 Groom v. Booth, 82, 95 Grosvenor v. Durston, 411, 414 V. Lane, 505 V. Sherratt, S06, 678 Grove n- Grove, 699 Grover v. Hugel, 180, 203, 204 Groves's Trust, Ec, 519 Groves v. Clarke, 517 V. Groves, 247, 252, 254 V. Perkins, 517 Grute V. Locroft, 531 Guardian Life Ass. Co. r. Vise. Avon- more, 336 Guest V. Cowbridge Rail. Co., 711 V. Smythe, 203, 208 Guidot V. Guidot: 977 Gullin V. Gullin, 528 Gunn, In the goods of, 997 Gunston v. Maynard, 588 Giinter I!. Halsey, 899 Gurly V. Gurly, 425 Gurney v. Goggs, 549 V. Oranmore (Lord), 306 Guthrie v. AValrond, 417 Guy V. Pearkes, 532 G Wynne v. Heaton, 151, 676, 678, 693 Gyett V. Williams, 468 Gyun V. Gilbard, 528 Hackney (Borough of) Newspaper Co., In re, 111 Haddelsey v. Adams, 29, 32 Haddon v. Fladgate, 551 Hadley v. London Bank of Scotland, 803 Haigh, Ex parte, 775, 780 V. Kaye, 267, 885 Haines v. Burnet, 46 Haldenby r. Spofforth, 93 Hale V. Cox. 747 V. Hale, 960 Hales V. Cox, 333 V. Risely, 828 V. Van Berchem, 773 Half hide v. Penning, 944 Halifax, Ex parte, 783 Hall, Ex parte, 337 V. Andrews, 111 V. Franck, 224 V. Hallett, 176, 197, 209, 211 V. Hardy, 948 V. HilM21, 422, 423, 534 I'. Montague, 453 TABLE OF CASES. XXXI [The paging refers Hall V. Noyes, 176 V. Palmer, 32(5, 333 V. Potter, 632 V. Kobinson, 125 V. Warren, 912 1'. Waterhouse, 564 Hall-Dare r. Hall-Dare, Ixxiii Hallett's Estate, In re, 219, 250 Halliwell v. Phillips, 868 Hal>-ey v. Halsey, 528 Hanihrooke v. Simmons, 1080 Hamerton v. Rogers, 721 Ilamil V. White, 50 Hamilton, lie, 784 V. Buckmaster, 101 V. Denney, 58 V. Foot, i042, 1045, 1053 V. Kir wan, 460 V. Molloy, 340 V. Worley, 755, 769 V. Wright. 176, 188, 209 Hammersley v. De Biel, 895 Hampton r. Hodges, 855, 861 V. Holman, 44 Hance v. Truwhitt, 419 Hanchett v. Briscoe, 563, 575 Hancocks v. Lablache, 604 Hancox v. Abbey, 740, 747, 748, 749, 752 Hauley v. M'Dermott, 444 V. Pearson, 52 Hannah v. Hodgson, 684 Hanson, Ex parte, 391 V. Keating, 508, 512 Harbert's (Sir William) case, 117 Harcourt v. Seymour, 1007, 1012 V. White, 880 Hardey v. Green, 346 V. Hawkshaw, 984 Harding v. Harding, 392, 765, 987, 995 r. Metropolitan Kail. Co., 912, 913, 985 V. Nott, 40 V. Trotter, 990 Hardman v. Johnson, 68, 69, 1102 Hardwicke v. Mynd, 83 V. W^ilmott, Ixxvii (Lord) r. Vernon, 176, 209 Hardy, Ex jjnrte, lOiYS Harewood v. Child, 744 Harford v. Carpenter, 774, 788 V. Lloyd, 249 Harland v. Binks, 305, 348 Harley v. Harley, 515 Harman v. Fishar, 308, 352 V. Richards, 336, 338, 339 Harmood v. Oglander, 297 Harnett v. Maitland, 861 V. Macdougall, 609 to the [*] pages. ] Harnett r. Yielding. 286, 287, 914 Harper r. Miiiiday, 768 Harpham r. Shacklock, 705, 706 Harrington (Couiit(-ssof ) v. Harrington (Earl of), 38, 39, 41 V. Price, 775 Harris's Settled Estates, In re, 557 Harris v. Evans, 878 V. Fergusson, 222, 223 v. Harwell, 903 V. Lee, 533 V. Mott, 564, 597 V. North Devon Railway Co., 929 V. Pepperell, 50 i\ Trueman, 250 Harrison, Ex parte, 199 Exj)arte; Tie Jordan, 799, 800 In re, 873 V. Asher, 259 V. Barton, 223 r. Gardner, 950 Harrison v. Guest, 208 V. Harrison, 385, 419, 420, 421, 854. 873 V. Nay lor. 29, ,32, 33 V. Randall, 453 V. Southcote, 302, 367, 394, 965 Harrop's Estate, In re, 932, 1025 Harrop v. Howard, 609 Hart, In re; Ex parte Fletcher, 800, 805 V. Hart, 255 V. Herwig, 932 r. Middlehurst, 23, 340 Hartford v. Power, 547, 573 Hartley v. Hurle, 550, 742 Hartley v. O' Flaherty, 120, 124 Hartopp V. Hartopp, 683 Harvey's Estate, In re, 273, 570, 620 Harvey v. Harvej', 40 V. Metrooolitan Railway Co., 913* Harwood and Cliild's Case, 401 ?•. Tooke, 685 Haslewood v. Pope, 744 Hastie v. Hastie, 611 Hastings v. Douglass, 621 Hatch V. Skelton, 752, 760 Hatchell r. Eggleso, 513 Hatfield v. Prime, 1045 Hatton V. Haywood, 712 Hawes r. Curtis. Ixxvi Hawkes v. Hubback, 613 Hawkins, Ex parte, 912, 985 V. Blcwitt, 1081 V. Holmes, 886. 887 V. Maltby, 900, 925, 926, 927 xxxu TABLE OF CASES. [The paging refers Hawkins v. Taylor. 70:^, 717 Hawksworth i\ Erammall, 948, 949 Ha-wtiy V. Butliu, 788 Hay's case. 190 Hayes v. Alliance Assurance Co., 317 Haygarth r. Wearing, 67G Hayues v. Forshaw, 107, 110 V. Haynes, 912, 984. 985 Hayter v. Rod. 981 Hayward r. Pile, 65 Hazlefoot's Estate, In re, 721 Head v. Head, 533 V. Eandall, 30 Headen r. Kosher, 686 Heal i: Knight, 995 Healey, In re, 528 Heames r. Bance, 721. 722 Heap V. Touge, 339, 340 Heard v. Pilley, 247, 249 Hearle v. Botelers, 362, 366, 379, 387 Hearle v. Greenbauk, 418, 495, 505, 597 Hearne r. Hearne, 402 Heartley r. Nicholson, 317 Heath v. Crealock, 7U6 r. Lewis, 518 V. Wickham, 618 Heathcote, Ex parte, 782, 784, 799 V. North Staffordshire Rail- way Co., 916, 918, 951 Heatley v. Thomas, 331, 568, 569, 570, 586 Heazle r. Fitzmaurice, 406 Hedges v. Clarke, 527 V. Hedges, 755, 756, 1072, 1078 V. Metropolitan Railway Co., 985 Hedworth v. Primate, 699 Heir of Cannon r. Pack, 715 Helsham r. Barnett, 682, 691 Hemming v. Griffith, 460 Henchman v. Attorney-General, 982, 1044, 1050, 1051, 1057 Hender r. Rose. 429 Henderson r. Eason, 872 Henley v. , 5207 V. Webb, 1005 Henriques v. Bensusan, 304 Henrv v. Ucnr\, 409, 411, 412. 740 Ifensinan r. Fryer, 386, 769, 770 Hentv V. Shroder, 956 r. Wrev. 457, 458, 459 Heptinstall r.'Gott, 1050 Hepworth v. Hepworth, 259, 261 V. Heslop, 333 V. Hill, 762 Herbert »;. Blnnden, 20. V. Webster, 611 Hercy v. Birch. 940 V. Din woody, 212 to the [»] pages. ] Hereford v. Ravenhill, 990, 1048 Heritage v. Paine, 924 Herman v. Hodges, 929 Hernando, In re, Hernando t-. Sawtell,. 562 Heron v. Heron, 247, 682^ Hervey v. Audland, 334 V. Hervey, 269, 274, 279 Hesse v. Briant, 201 Heveningham v. Heveningham, 770 Hewett, Ex parte, 211 V. Kaye, 1082 V. Loosemore, 388, 794 V. Wright, 1007 Hewison ik Negus, 338 Hewitt V. Snare, 750 T. W^right, 1047 Heyman v. Dubois, 128 Hibbert v. Hibbert, 940 Hichens v. Congreve, 190, 192 Hickes v. Cooke, 188 Hickley v. Hickley, 179 Hickling v. Bo3'er, 754, 760 Hickman v. Cox, 347, 348 Hiern v. Mill, 781, 794, 796 Higginbotham v. Hawkins, 851, 879 Higgins V. Shaw, 105 Higginsou v. Barueby, 44, 47 V. Clowes, 897 Higgon V. Sydall, 699, 702, 709 Highway v. Banner, 24, 409 Higinbotham v. Holme, 346 Hiles V. Moore, 713 Hill V. Chapman, 1083 V. Cock, 1043 V. Cureton, 342 V. Edmonds, 513 V. Exeter (Bishop of), 334 V. Gomme, 329, 330 V. Hill, 44, 45, 58, 223 V. London (Bishop of), 769 V. Mill, 56, 64 V. Simpson, 109, 110, 112 V. Wilson, 301 Hillman, Ex parte; In rePomtrey, 340, 352 Hills V. Croll, 934 V. Downton, 276 V. Hills, 1080 Hilman v. Maj^hew, 958 Hilton (\ Tipper, 954 Hinchiubroke v. Seymour, 456, 457, 459, 1147 Hinksman v. Smith, 686 Hipgrave v. Case, Ixxviii Hippesley \\ Spencer, 860 Hirst, Ex parte, 799, 805 V. Beach, 1083 Hitchcock V. Cleudinen, 526 TABLE OF CASES. XXXIU [The paging refers Kitchens v. Conp;reve, 1!)0, 102 H itch man r. Htewart, 121, 123 Hoare's Trust, In rr, 'y.l Hoare v. Dresser, 1)18 Hobbs r. Hull, :WH, !)43 Hobby V. Collins, lOOG Hobday r. I'cters, 202, 208, 569 Hobson, In re, Ixxv V. Bass, 1:55, \n, 139 V. Neale, 995 V. Thelluson, 305 V. Trevor, 647, 654 Hockly V. Bantock, 782 Hoddel t'. Pugh, 984 Hodgcns V. Hodgens, 517, 528, 576 Hodges V. Hodges, 570, 620 Hodgkinson v. Cooper, 63 V. Crowe, 47 V. Kelly, 927, 928 V. National Livestock In- surance Co., 181 V. Wyatt, 789, 804 Hodgson V. Bective, 1043 x\ Bower, 960 V. Hodgson, 562, 567 V. Shaw, 126, 130, 131, 132, 133 V. "Williamson, 584 Hodkinson v. Quinn, 101, 102 Hogg ('. Jones, 38, 43 Holden's Estate, Re, 1009 Holden, Be, 1009 V. Hearn, 781 V. Webber, 192 V. Weekes, 858 Holderness r. Lamport, 246, 932 Holdich V. Holdich, 420, 422 Hole V. Harrison, 121 V. Thomas, 871, 872 Holes V. Cox, 334 Holford V. Holford, 334 r. Wood, 750 Holland, Ex p'lrte; In re Heneage, 579 Holliday v. Bowman, 726, 729, 745 Hollier v. Burne, 67 Hollis V. Edwards, 887, 898 V. Whiteing, 898 Holloway v. Headington, 320, 327, 328 V. Radclift. 1007 V. Webber, 41 V. York, 959 Hoi man v. Loynes, 200 Holmes, Ex parte, 135, 139 V. Coghill, 273 V. Mathews, 897 V. Penney, 343, 345, 347 Holmesdale (Viscount) v. Sackville West, 21, 34, 15 Holroyd r. Marshall, 918, 964 3 WHITE ON EQUITY. to the [*] pages.] Holt V. Holt. 54, 62 t'. Mill, 700 Holthausen, Ex parte, 778 Hdlynian, Kx parte, 198 Home )'. Patrick, 585 Honor /•. Honor, 24. 51 Honywood v. Forster. 414 V. Honywood, 854, 855,873, 875. 877 Hood r. Hood, 392, 7( 2 r. North Eastern Pailway Co., 9:56, 952 Hook V. Kinnear, 330 Hooper, Ex parte, 712, 775, 782 r. Strutton, 101 Hooper's Trusts, Uc, 520 Hope, Ex parte, 136, 137 V. Cloncurry (Lord), 893 r. Hope, 526, 942, 943 r. Liddell, 105, 213 Hopkins v. Mvall, 280 Hopkin.son r. Ellis, 1042, 1044 V. Rolt, 127, 714, 715, 720 Hopper V. Conyers, 249 Horn r. Horn, 80, 88 Home V. Barton, 23, 32, 44, 45 V. London & North Western Railway Co., 941 Horner's Estate, In re, 1024 Horner r. Swan, 462 Hornsby v. Lee, 507, 529 Hotham's Trusts, Re, 982, 983 Houghton, Ex parte, 244, 245 V. Houghton, 230 Estate, //) re, Ixxili Houston, Ex parte; Re Boyd, 139 Hovey v. Blakeman, 610 How V. Weldon, 643 Howard v. Bank of England, 555, 556 V. Chaffer, 91 V. Digby, 580. 620, 621 V. Dryland, 742 r. Ducane, 204 r. Hooker 473, 475, 480 Howe r. Hall, 889, 890 V. Howe, 237, 244, 245 r. Hunt. 9.54 Howell V. Howell. 24 V. Palmer, 960 Howells r. Jcnkin.s,'407, 408, 411 Howkins r. Jackson, 50 Howlcy V. Cook, 682, 691, 693 How.sou's Policy Trusts, In re, Ixxv Hoyes v. Kindersle3% 267 Hudson, In re; Creed r. Henderson, Ixxviii r. Cook, 392, 986 Hue r. French, 349 Hughes, Ex parte, 177, 198, 209, 211, 214 XXXIV TABLK OF CASES'. [The paging refers Hughes' Trusts, In re, Ixxv Hughes v. Howard, 61 V. Kearney, 357, 363, 370, 379, 385, 387 r. Morris, 887, 930 r. Statham, 740 V. Stubbs, 305 r. Wells, 249, 275, 569, 579, 582 Hugnenin v. Baseley, 683 Huisli's Charity, In re, 443, 450 Hulme V. Tenant, 213, 273, 485, 523, 536, 543, 546, 570, 583 Humberston v.. Humberston, 43 Humble r. Bill, 73, 106, 107 Hume r. Rundell, 275, 277 Humphrey v. Humphrey, 549 V. Olver, 448 V. Richards, 562 Humphreys v. Harrison, 855, 680 V. Moses, 338 Hungerford r\ Earle, 344 Hunt, Ex parte, 784 V. Matthews, 482 Hunt )'. Wimbledon Local Board, 885, 892 Hunter r. Nockolds, 716, 722 V. Walters, 795 Huntingdon v. Greenville, 702, 703, 708 Huntington r. Huntington, 755 Hurst rT Hurst, 462, 706 Husband v. Davis, 224 Huskisson r. Lefevre, 993 Hussey r. Husse^', 869, 877 Hutchin v. Mannington, 997 Hutchins v. Hutchins, 448 V. Lee, 252 Hutchinson v. Standley, 533 Hutchison v. Hammond, 1046, 1054, 1055 V. Skelton, 432 Huxtable, Ex parte; In re Conibeer, 352 Hyde v. White, 685 Hvett V. Mekin, 990, 1023 Hylton V. Hylton, 206 Hynes v. Redington, 105 Hythe (Corp. of) v. East, 956 Ibbetson v. Ibbetson, 40, 757 Ibbitson's Estate, In re, 989, 993 llchester (Earl of) v. Carnarvon (Earl of ), 754, 755, 759, 760 Imperial Bank r. London & St. Kath- arine Docks Com]i. 130 Imperial Land Co. of Marseilles, In re; In re National Bank, 777 Imperial Land Co. of Marseilles, Inre; Ex parte. Larking, 181 to the [*] pages.] Imperial Mercantile Credit A.ssociation r. Coleman, 181, 190 Inchiquin (Lord) v. French, 727, 740 V. O'Brien, 727 Incledon v. Northcote, 420 Incorporated Church Building Soc. r. Coles, 988 Inge V. Birmingham, &c. Rail. Co., 912 Ingle ■('. Richards, 176, 187. 987 Ingletield v. Coghlan, 548 Ingram v. Ingram, 427 Innes?;. Sayer, 271, 273 International Contract Co., In re Ind's case, 929 International Pulp &Paper Co., /a re; Knowles' Mortgage, 776, 777 Inwood V. Twyne, 1010, 1018 Ion V. Ashton, 748 Irby V. Irby, 721 Ireland v. Trinbaith, 524 Irnham v. Child, 155 Irons V. Smallpiece, 301 Irvine v. Sullivan, 903 Irwin V. Irwin, 449 Isaac In re, Ixxvi V. Wall, 62, 69 Isaacs V. Boulnois, 933 Isald r. Fitzgerald, 64 Ithell r. Beane. 80, 272, 330 Iveus p. Butler, 589 Jackson, In re, 983 V. Butler, 965 V. Cocker, 921, 922 V. Haworth, 585 V. Hobhouse, 576, 605, 608 11. Hurlock, 1050 V. Jackson, 223, 226, 228, 272, 444, 948 v. Langford, 720, 721 V. Talbot, 983 V. Welsh. 58, 61, 64 Jacob r. Isaac, Ixxvi Jacobs V. Amyatt, 514, 519, 532, 550 V. Seward, 872 Jakeman's Trusts, In re, 598, 1006 James, Ex parte, 176, 178, 179, 197. 198, 201, 209, 210, 211 V. Barraud. 588 V. Bydder, 310 V. Couchman, Ixxiv V. Dean, 54, 56, 62 V. Dearmer, Ixxv V. Holmes, 244 V. James, 801 V. Morgan, 668, 676 V. Rice, 782, 789 11. Richardson, 14 Jameson v. Stein, 895 TABLE OF CASES. XXXV ITho pjiginf,' refers James j>. Whitbread, 'M7, 1518 Jaqiu'S V. Millar, ()',(;, i){JO .Jeans v. Cooke, 244, '2(J1, 2(;:3, 2G5 J ebb V. Abbott, 84 V. Jebb, 8(i5 Jefitereys v. Small, 225. 22« Jctfervs r. Jellerys, 271, 297, 302, 326, 328' Jenkins v. Kiles, 84, 89 r. Keniish, 340 r. Keyniise, 341 V. Parkinson, 953 r. Tucker, 595 .lenkinson r. Ilarcourt, 754, 757 r. IVpys, 897 Jenkyn i: Vaughan, 343, 344, 345 Jenner j;. Jenner, 50, 683 V. Morris, 533 ■Tenney r. Andrews, 568 Jennings r. Moore, 271, 272 Jermy v. Preston, 1021, 1022 Jernegan /•. Baxter, 524 Jersey (Earl of) v. Briton Ferry Floating Dock Co., 378 Jervis r. Berridge. 886, 898 Jervoise r. Jervoise, 409, 413, 621, 622 V. Northumberland (Duke of), 18, 19, 20, 28, 29, 32, 34 Jessopr. Watson, 1042, 1043, 1045 Jesus College v. Bloome, 811, 842, 871 Jewson V. Moulson, 487, 490, 507, 512, 519, 529, 534 Job V. Potten, 871 Jodrell V. Jodrcll, 339 Johns V. James, 304, 306 Johnes i'. Johnes, 865 V. Lockhart, 550 Johnson's Estate. In re, 39 Trusts, In re, 26, 38 Johnson, Re parte, 136 In re, 339 V. Arnold, 990 V. Ball, 313 f. Child, 769 V. Fesenmyer, 201 V. Gallagher,542, 569,573,574, 585, 586, 594 V. Helleley. 950 V. Johnson, 516, 517, 1045 r. Kennett, 80, 84, 85, 86, 87,- 89, 1092 V. Kershaw, 307 V. Lander, 521 r. Legard, 336, 340, 353 V. Shrewsbury & Birmingham Railway Co., 941 t'. Smith, 1086, 1087, 1088 t). Telford, 419 V. Webster, 1021 to the [•] pages.] Johnson v. Woods, 1044 J()hnMt0 Lawson v. Hudson, 755 V. Laude, 897 V. Lawson, 755, 1060, 1064, 1071, 107H, 1079. 1082 V. Wright, 123 Layard r. Maud, 796 Layton r. Lajtnian, 754 Lord V. Jen'kins, (J^O, G83, 694 V. Lord, 893 V. Wiglitwick, 993 Lorinier v. Lorinicr, 256, 259 Loutli and East Coast Jvaihvay Co., In re, 984 Lovat (Lord) v. Leeds (Duchess of), 878 Lovatt V. Knipe, 54 Lovell V. Newton, 552, G04 Lovesy v. Smith, 50, 52, Ixxiii Lovett V. Lovett, 518 Low V. Carter, 256 V. Holmes, 207 Lowe V. Fox, L\xvi V. Swift, 893 Lowes?,'. Lowes. 422 Lowndes v. Eettle, 864 r. Norton, 851, 877, 878 Lowry's Will, In re, 985 Lowry v. Dutferin (Lord), 277, 278 V. Lowry, 29 Lowther v. Carlton, 70:] V. Lowther, 189, 190, 9G4 Lowthian ?;. Hasel, 722 , Loxley v. Heath, 8'J5 Loyd, Ex parte, 784, 786 V. Kead, 244, 2G1, 262 Luard, E.c parte, 578 Lucas V. Brandreth, 990, 993, 994 V. Comerford, 798, 933 V, Dorrein, 781 V. Jones, 988 V. Lncas, 313, 545, 622 Lucena v. Lucena, 275, 277, 278 Luckcraft v. Pridham, 741 Luckin v. Rush worth, 60, 62 Ludlow, Ex parte, 1017 Luff?;. Lord, 179, 197 Luker v. Dennis, 951 Lulham, In re, Brenton f. Lulham, 55, 57 Lumb v. Milnes, 514, 532, 550, 576 Lumley i'. Wagner, 951 Lunn V. Thornton, 1087 Lush's Trusts, In re, 530 Lushington v. Boldero. 866, 874, 875 V. Sewell, 755, 75G Luther v. Bianconi, 565 Lutkins v. Leigh, 769 Luttrell's case, 831 Luttrell V. Olmius, 288 Lycett V. Stafford, &c., Railway Co., 377 to thf> [* 1 pnptos.] Lyddal r. Clavering, 869 Lyddon v. Kllison, 44 V. Moss, 214, 693 Lynch, E.r jxirle, G!J5 r. Lynch, 3:58 Lynn v. Asliton, 581 Lynn v. Charters, 966 Lyohs V. Blenkin, :V.)() Lysaght r. Koyse, 467 Lyster r. Dolland, 227 r. Foxcrolt, HK], 887 Lytton's Settled Estates, In re, 982 . Lytton r. Creat Northern Railway Co., 930 Mabkr v. Hobbs. 484 M'Askie?\ Al'Cav, 894 Macaulay v. Philips, 496, 498, 499, 500, 502, 529, 534 Macbryde v. Eykyn, 585 M'Burnie. Ex parte, :M0, 346 M'Call V. M'Call, 419 M'Calmot v. Rankin, 930, 932 M'Carthy v. Goold, G47 M'Cleau v. Kenward, 225 M'Cleland v. Shaw, 742, 747, 749 Macclesfield (Earl of) v. Davis, 964 MacCormack r. MacCormack, 51 M'Cormick v. Garnett, 526, 534 V. Grogan, 903, 904 McCracken v. McClelland, 55 M'Culloch V. Bland, 301 M'Donagh, Minors, In re, 120, 122 Macdonald v. Whitlield, 123 M'Donnell r. Hesilrige, :502, 353, 480 M'Fadden v. Jenkyns, 309. 311 M'Gonnell v. Murray, 1082, 10fe(), 1087 M' Henry c. Davies, 571, 795 Machorro v. Stonehouse, 538, 539 M'Kay's case, 182, 183, 190 Mackay v. Douglas, 345 McKay v. McNally, 798 Mackechnie i'. Majoril)anks, 451 Mackey v. Maturin, 580 McKenna's Estate, Re, 179, 212 M'Keogh r. M'Keogh, 485 ISI'Kewan ;•. Sanderson, 069 Mackie v. Herbertson, 330 INIcKinney's Estate, In re, 784 M'Kinney I'. Spowle, 797 Mackinnon v. Stewart, 306, 308 Mackreth r. Svmmons, 355, 375, 381, 387, 389, 39(), 703 IMackwortli v. llinxman. .38, 41 M'Larty t'. -Middleton, 930 M'Lean r. Longlands, 313 M'Leod V. Drummoud, 77, lOG, 109, 111, 112 xl TABLE OF CASES. [The paging refers Macleod v. Jones, 203 M'Mahou V. Burchell. 534, 872 M'Mulleii V. O'Reilly, 111 Mni'uamara v. Joues, 405 Macnee v. Gorst, 791 McNeillie v. Actou, 93 McPherson i: Watt, 189, 195 iM'Qaeen v. Farqubar, 448, 450, 454, 457, 703 Maddever, In re; Three Towns Bank- ing Co. V. Maddever, 350 Maddison v. Alderson, 896 V. Andrew, 465, 467 V. Chapman, 394, 411,412,414 Maddy v. Hale. 65, 67 ISIagawley'.s Tru.st, In re, 343 Magrath v. Morehead, 21, 36 Maguire v. Dodd. 310, 1086 V. Scully, 21, 23 Mahon v. Hodgens, 289 (Lord) V. Stanhope (Lord), 865, 866 Mainwaring's Settlement, In re, 616 Mair v. Himalaya Tea Co., 941 Major ('. Lumley. 563 Majoribauks r. Hovenden, 280 Makeown v. Ardagh, 310 Malet, In re, 52 Mallabar v. Mallabar, 970, 1029, 1031, 1033, 1053 Mallin's Settled Estate, In re, 283 Malmesbury (Earl of) v. Malmesbury, (Countess of), 50, 52 Malony v. Kernan, 191 V. L' Estrange, 214 Maltou case, The, 900 Manchester and Liverpool District Railway Co., Kv parte, re Littler, 805 Manchester and Southport Railway Co., In re, 985 Mander v. Harris, 531, 558 Mangles ii. Dixon, 385 Mann v. Copeland, 749 Manners (Lord) v. Johnson, 951 Manning v. Gill. 267 Manningford v. Toleman, 718, 785, 793 Mansell v. Mansell, 807, 813, 814, 830, 833, 834, 835 Mant V. Leith, 575 Mara v. Manning, 565, 575 March, In re; Mander v. Harris, 531, 558 V. Fowke, 745 V. Head, 491 V. Wells, 861 Mare r. Sandford, 669 Margetts ?;. Barringer, 546 Margrave v. I^e Hooke, 721 Marker v. Marker, 865, 868 to the [*] pages.] Markwell v. Markwell, 326 Marlborough's (Duke ofj. Estates, 57 Marlborough (Duke ofj ';. St. John, 858 Marlborough's (Duke of) Settlement, In re; Marlborough (Duke of) Ma- joiibanks, Ixxiii Marier r. Tommas, 327 INIarriot v. Marriot, 903 Marryat v. Townly, 23, 34 Marsack v. Lyster, 514 Marsden's Trusts, In re, 444, 446 JNIarsh & Earl Granville. In re, 340 V. Att.-Gen., 988 V. Lee, 696, 699, 700, 796 Marshal v. Crutwell, 267 M.arshall, Ex parte, 135 V. Berridge, 556 v. Bousfield, 29 V. Fowler, 520 V. Gibbings, 534 V. Holloway, 10.50 V. Shrewsbury, 801 Marson ??. Lond. Chat. & Dov. Rail. Co., 913 Marston v. Gowan, 275 Martelli v. Holloway, 39, 41 Martin, Ex parte, 788 l7i re ; Butterfield v. Mott, 551, 557 V. Mitchell, 280, 495, 497, 501, 506 V. Nutkin, 950 V. Powning, 199 V. Seamore, 335 ex dem. Tregonwell v. Stra- chan, 845 V. Trimmer, 1010 Martinson r. Clowes, 188, Ixxiv INIartvn ;». Knowllj's, 872 Mason v. Abdy, 629, 650, 658, 661, 666 V. Day, 1020 V. Mason, 35, 1019 V. Mitchell, 553 V. Morley, 785 V. Stokes Bay Pier & Rail. Co., 912 Massey v. Davies, 194 V. Parker, 550, 612 Massy v. Haj'es, 547, 550 V. Rowen, 546, 547, 550 V. Travers, 340 Master r. Fuller, 571, 572 Mather v. Eraser, 786 r. Norton, 93 Mathias v. Mathias, 394 Matson r. Dennis, 224 V. Swift, 996 Matthew v. Bowler, 376, 381 TAI5LK OF CASES. xli [The im^iufs refers to tho [*] pages.] Matthewman's case, Mrs., oTo Matthews r. C'artwright, 712 V. Fuaver, ;M2 V. Wallwyn, 79!J V. Whittlf, r,9-2 Maugham r. Mason. ]().")2 MaundrcU r. Mauiulrell, 3(50, 380, 718, 1U.")0 Maunsell, Kv parte, 1009 V. O'Brien, 70 V. White, 89.'), 896 Mawe ?'. Ilcaviside, 525 Mawhood v. Mil))anke, GOl Maxtield r. lUirton, 705, 70G Maxted r. Paine, 923, 925 Maxwell's case, 208 Maxwell i\ Ashe, 63 V. IIvslop. 428, 764 V. Maxwell, 419, 764 r. Montacute, 81)7 V. Port Tenant, &c.. Coal Co., 940 May v. May, 266 V. Roper, 1005 V. Skey, 53: > V. Thompson, 942 Mayd r. Field, .568, 570, 595, 615 IMayhew v. Crickett, 120, 122, 126 Mavn V. Mayn, 25, 44 Mavor, Ex parte, 346 Mead, In re, 1082, 1083 Mead v. Hide, 740, 752 V. Orrery, 106, 110, 111, 112 Meajier v. Pellew, Ixxvi Meal is v. Meal is, 488 Medcalfe v. Medcalfe, 948 Medley v. Horton, 609 ]\Iedlicott V. O'Donel, 694 Medwin v. Sandham, 274, 286 Meek v. Bay lis, 781 V. DeVenish, 1006, 1007, 1010, 1013 V. Kettle well, 311, 320, 1206 Meere's (Sir Thomas) case, 632 Meggison v. Foster, .336, 792 Melbourne Banking Corp. r. Brougham, 892 Meller v. Woods, 801 Mellersh v. Bridger, 761 Mellish V. Vallins, 763, 764 Mellor's Policy Trusts, In re, 556 Mellor V. Porter. 775, 802 Menzies v. Lighttbot, 715 Merchants' Trading Co. r. Banner, 953 Meredith, In re; Meredith v. Facey, Ixxiv Meredith v. A'ick. 1011 r. Watson. 1085 Merrimau's Trusts, Be, 520 Merlins v. Jollifie, 703 Messenger r. Cb'rke, 590 Mestaer v. Gillespie, H!)7 Metcalf r. Pulvertoft, 335 Metropolitan Kaihvay Co. v. Wood- house, V'^l Meure c. Meure, 29, 32 Meux V. Bell, 321 V. Feme, 801 V. .Jacobs, 785, 786 V. Smith, 712 Mews r. Mews, 545, .599 Mevnell v. Surtees, 887, 888 Miali V. Brain, 422, 423 Michaers Trusts, In re, 611 Michell V. Michell, 712 Michclmore v. ISIudge, 788, 793 Micklethwaite r. Micklethwaite, 866 Middlebrook r. BnmiUy, 418 Middlecombe r. Marlow, 535 INIiddleton r. Greenwood, 9:>4 V. Magnav, 392, 394 V. Middleton. 288, 768 V. Poimck, 249, 310 ■ V. Spicer, 988, 10.57 V. AVindro.ss, 410 Midland Banking Co. r. Chambers, 136, i:'.7 IMidland Counties Kaihvay Company V. Oswin, 984 1024, 1025 Mign(m v. Pi>rrv, 51 Mildmay r. Quicke, 1024 Miles, Kv parte, 136 V. Durntbrd, 107 V. Harford, 20, 42, 44 V. Harrison, 746 r. Knight, 462 V. Williams, 589 Mill )•. Hill. 56, 62. 64, 209 Millard r. Harvev. 887 Miller, Rv parte,^7S2 V. Campbell, 529 V. Cook, 676, 682, 687, 688, 693 V. Finlay, 887 V. Harrison, 310 V. Miller, 571. 993, 998, 1073, 1078, 1079, 1082, 1083 r. Sawyer, 125 ?•. Thurgood. 411 Millet r. Eowse, 528 Mills's Estate, He, 311 Mills r. ISIills, 279 i\ Spear, 448 Milne r. Milne and Fowler, 577 Milner v. Colmer, 489, 510 r. Wilmer, 5"i9 Milnes r. Busk, 579 r. Gery, 947 t'. Slater, 747, 748, 752 xlii TABLE OF CASES. [The paging refers Milroy r. Lord, 311, 316, 545 Milward's Estate, In re, 283 Minchiu r. Minchin, 468 Minet r. Hyde. 524 Mitcalfe's case, 183 Mitlbrd v. INIitford, 391 Mocatta v. Bell, 702 V. Lousada, 466, 467 Moflfiitt V. 'Coruelius, 947 MoOett V. Bates, 417 MoUineux r. Powell, 859 Molony V. Kennedy, 596 r. Kernan, 191 ]M()lvneaux's Estate, In re, 546, 608, 615 jMolyneanx Minors, In re, 526 Money's Trusts, In re. 65 Money v. Jorden, 896 Monro v. Taylor, 901 Montagu v. Inchiquin, 38 Montague v. Flockton, 951 MonteJiore v. Behrens, 509, 535 r. Browne, 306, 307 ^Montesquieu v. Sand5^s, 199, 200, 201 Moodie v. Reid, 275 Moody r. Matthews, 54, 63 Moor V. Ryoault, 535 Moore v. Butler, 409, 432 V. Choat, 798 f. Culverhouse, 784, 797 V. Darton, 310, 1079, 1085, 1088 r. Greg, 793 V. Moore, 317, 580, 609, 764, 1079, 1082, 1083 V. Morris, 614 V. Mulligan, 588 v. Walter, 551 V. Webster. 597 Moore and Robinson's Banking Co., E.r parte, 786 Mordaunt v. Benwell, 1024 More V. Mayhow, 360 Morse v. Huish, 567 Morgan's Settled Estate, In re, 602 Morgan. Ex parte, 799 ' In re, 54, 63 V. Elford. 190 V. Malleson, 315, 316 V. ISIilman, 271, 278, 287, 893 V. Morgan, 409, 430, 597 V. Surman, 465 V. Swansea Urban Sanitary Authority. 385 Moriarty v. Martin, 428 Morrison v. Tliompson, 192, 194 Morley v. Bird, 223 V. W.jbb, 73 Moronev v. O'Dea, 693 Morphett r. Jones, 886, 887, 888, 900 to the [*] i)ages.] Morrell r. Cowan, 571 Morres v. Hodges, 64. 66 Morret v. Paske, 707, 708, 713, 721, 722 Morris v. Barrett, 228 V. Freeman, 571 ^•. Griffiths, 992 V. Kearsley, 230 r. Morris, 863, 866, 871, 880 Morrow r. Bush, 739, 751 Morse's Settlements, In re, 50, 52 Morse r. Martin, 275, 277, 279 V. Merest, 948 V. Palmer, 213 V. Royal, 157, 178, 179, 211, 213, 214 Mortimer v. Davies, 244 V. Orchard, 887, 901 Mortlock V. Buller, 277, 286 Morton's case, 926 Morton's Estate, Re, 527 Morvah Consols Tin Mining Co., In re, McKay's case, 183, 190 Moseley v. Virgin, 935 Mosley'?;. Ward, 409, 416 Moss, Ex parte, 775 V. Bainbrigge, 329 V. Cooper, 904 V. Dunlop, 524 Moth V. Atwood, 684 Mountford, Ex parte, 775, 780 V. Scott, 788 Mower v. Orr, 994 Muckleston v. Brown, 904, 906 Muggeridge v. Stanton, 302, 598 Muir V. Jolly, 384 Mules V. Jennings, 995 Mulhallen v. Marum, 61, 206 Mullineux v. Mullineux, 554 V. Powell, 859 Mullins V. Guilfoyle, 336 Mulvany r. Dillon, 55, 61, 62 Mumford v. Stohwasser, 706 Mumma v. Mumma. 237, 260, 262, 263 ISIummery r. Paul, 942 Munday v. Jolliffe, 889, 901 Munns v. Isle of Wight Railway Com- pany, 377 Munt r. Glynes, 36, 612 Murless r. Franklin, 260, 261, 263, 260 Murphy v. Abraham, 343 ' V. O'Shea, 189, 191 r. Taylor, 897 Murray's Executor's Case, 187 Murray v. Earlee. 543, 571, 572, 584 V. Elibank (Lord), 493, 501, 516, 517, 551 V. Flayell, 331 V. Palmer, 214, 093 V. Parker, 50 TABLE or CASES. xliii [The paging refers Murray v. Scott. 778 Murtagh r. Costello, 232 Murton v. IMarkby, 994 Musgrave v. Parry, SOS, 832 Musgrove r. Flood, 'y'M Musters v. Wright, 59(5 Mutlowv. Bigg, lOOH, 1010, 1012 Mutual Aid I'ernuuu'ut lienetit Build iug Society, In re, Ixxvii Myddleton v. Kenyou (Lord), 338 Mvles V. Burtou, 587, Ixxvi Nab v. Nab, 903 Nagle's Trusts, In re, 284 Nagle v. O'Donnell, 579 Nail V. Punter, 570 Nairn v. Prowse, 340, 357, 364, 368, 369, 384, 391 Nandike v. Wilkes, 23, 271 Nant-y-Glo and Blaina Ironworks Co. V. Grave. 182, 183 Nantes v. Corrock, 584 Napier v. Napier, 519, 520 Nash V. Pease, 587 V. Worcester, Impvt. Commrs., 376, 912, 985 National Bank of Australasia r. Cherry, 775 National Provincial Bank of England, Ex parte, 136 Native Iron Ore Company, In re, 776 Naylor v. Winch, I'SO, 197 V. Wright, 50 Neale v. Cripps, 864 v. Day, 343, 348 V. Neale, 888 Neesom v. Clarkson, 393 Nelley's Trust, In re, 32 Nelson v. Bealby, 225 V. Booth, 578 V. Bridges, 959 r. Page, 763. 766 r. Stocker, 483 Nesbitt V. Kerridge, 679, 692 V. Meyer, 940 V. Tredennick, 54, 56, 60, 70 Nether Stower Vicarage, In re, 983 Nettleship, Ex parte. In re Burkhill, 781, 789 V. Nettle.ship, 578 Neve V. Pennell, 784, 797 Nevill V. Nevill, 34 r. Snelling, 690, 693 Nevirbegin v. Bell, 743, 750 Newberry's Trusts, In re, 1051 Newbery r. James, 940, 950 Newbold c. Koadnight, 749 to the [") pages.] New Brunswick iS: Canada Railw. & Land Co. (Limited) c. Muggergide, 922, 940 Newlniry v. Marten, 802 Newcastle's (Duke of) Estates, In re, 284, 856 Newcastle (Duke of ) v. Lincoln (Coun- tess of ), 26, 38 r. Vane, 810, 852 Newcastle (Duchess of) v. Pelham, 965 Newcomen v. Hassard, 564 Newcnliam v. Pemberton, 508, 511 Newhouse ;;. Smith, 752. 761 Newlands ?;. Paynter, 545, 601. 616 Newlands Settled Estates, In re, 982 Newman r. Johnson, 73 I'. Newman. 410, 429 v. Wilson. 5-JO, 764 Newmarch, In re, 766, 770 r. Storr, 766 Newnham r. Graves, 930 Newport's case, 336 Newry Railway Co. r. Moss, 798 New Soml)rero Phosphate Co. r. ¥.t- langer, 185 Newstead r. Searles, 330. 341 Newton v. Askew, 302. 326 V. Chorlton, 126, 128 V. Hunt, 684, 686 . V. Preston, 247, 248 V. Reid, 612 V. Roe, 589 r. Taylor, 945 New Zealand and Australian Land Co. V. Ruston, 250 New Zealand and Australian Land Co. V. Watson, 250 Nicholl V. Jones, 943 Nicholson v. Mulligan, 249, 253, 254. 258 V. Tutiu, 306 Nickalls v. Merry, 924, 925 Nickels v. Hancock, 948, 949, 950 Nickissou r. Cockill, 994 Nives V. Nives, 379. 917 Nixon r. Cameron, 1045 Noble r. Willock. 562 Noel c. Henlev (Lord). 747. 749, 752, 75.5,^1049, 1054 V. Noel, 585, 757 Norcott V. Gordon. 420 Norcutt V. Dodd, 342 Norfolk's (Duke of) case, 3 Normanby (Marquess of) r. Berklv (Lord), 910 Norreys v. Frank. 1055 Norris v. Chambers, 379 V. Fraser, 903 V. Harrison, 1026 xliv TABLE OF CASES. [The paging refen Xorris v. Jackson, 887, 890, 934, 955 V. Le Neve, 64. 69 v. Wilkinson, 782 North Brecon Riiilway Co., In re, 378 Nortlicote t. Doughty, 695 Nortliern Counties of England Fire In- surance Co. V. Whipp, 794 Northej' r. Northey, 621 Xortliumberland (Earl of) v. Aylesford (^Earl of), 431 Norton, Ex parte, 509 r. Mascall, 948 V. Turvill, 537, 539, 569, 570, 584 Norway r. Roe, 227 Nott V. Hill, 630, 653, 677, 685 Nottley r. Palmer, 420, 425 Novs V. Mordaunt, 395, 401, 402, 404, 405, 417 Nugent r. Gifford, 73, 110, 111 Nun r. Fabian, 888 Nutbrown r. Thornton, 920, 964 Oakes, Ex parte, i?e "Worters, 790 O' Brian (bankrupt), Jn re, 786, 791 O'Brien v. Egan, 56, 62 r. O'Brien, 867 V. Shell, 259, 264 Odessa Tram Co. r. Mendel, 921, 922. 934 O'Fav V. Burke, 278, 893 O'Ferrall, Ex parte, 492, 534 Ogden V. Lowry, 100 Oglander v. Baston, 489 Ogle V. Cooke, 974, 1030, 1039, 1040, 1044 O'Gorman v. Comyn, 340 O'Halloran r. King, 606, 607. 620 O'Hara r. Chaine, 422 O'Herlihv v. Hedges, 886 Oke r. Heath. 1056 Oldam V. Lichford, 903 Oldenshaw v. Holt, 939 Oldham v. Hughes. 979, 1005 V. Stringer, 602 Oldin r. Sambourn, 206 Oliver ;•. Court, 1H9, 190, 209 r. Oliver, :]6, 521 Olliver r. King, 349 O'Neal V. Mead, 769 Onge r. Truelock, 123 On.slow's ca.se, 1008 Oram v. Richardson, 91 Ord r. Noel, 2«6 O'Reilly r. Thompson, 886, 890 Oriental Inland Steam Co. v. Briggs, 922 Orme r. Wright, 187 to tho [*] pages.] Ormerod's case, 183 Ormond (Lord) v. Anderson, 901 (Marquess of) r. Kynuerslev, 874, 875, 876 O'Rorke r. Bolinbroke, 082, 692 Orrell r. Orrell, 419 Orrett, Ex parte, In re Pye. 783 Ortigosa v. Brown, 706 Osborn v. Bellman, 20 V. Morgan, .508, 515, 527 Osborne, Ee, 604 V. Williams, 647 Osgood V. Strode, 340, 341 Osmond v. Fitzroy, 151 Oswald V. Thompson, 344 Oswell r. Probert, 534 Otter V. Vaux (Lord), 61 Ottway V. Wing, 585 Otway V. Hudson, 977 Ouseley v. Anstruther, 259, 310, 740, 745, 748 Ousley V. Carroll, 1070 Owen V. Body, 308, 348 V. Braddell, 354 r. Foulkes, 198, 199 V. Horaan, 570 V. Owen, 718 V. Williams, 55, 61, G4 Owens V. Dickenson, ,572, 594. 595 Ox en den v. Compton (Lord), 981, 1014, 1015, 1016, 1021, 1022 Oxenden v. Oxenden, 531. 533 Oxenham r. Esdaile, :;92, 393 Oxf(.rd V. Provand, 901, 935, 936 Oxford's (Earl of) case, 951 Oxford (Earl of ) r. Ro'dnaj^ (Lady), 757 Pack r. Andrew, 263 Packer v. Packer, 524 V. Wyndham, 491 Packington's case, 864 Padburv c. Clark, 407, 409. 411, 430. 1011 " Page r. Adam, 76. 84, 85, 89 r. Broom, 303 r. Home, 302, 353 r. Leaping well, 1054 Paget's case, 838 Paget V. Huish, 748, 749 Pagett V. Hoskins, 73 Paice V. Abp. of Canterbury, 988 Pain V. Coombs, 887 r. Smith, 801 Paine v. Hutchinson, 926 Paley r. Field, 135, 136, 137, 139 Palmer's Will, hire. 284 Palmer v. Locke, 462. 464 V. Wheeler, 453 TAULE OF CASES. xlv [Tho paging refers Palmer v. Younp, r>S Panaimi and South Pacific Teleg. Co. V. ludia Kubber, Gulta Percha, &c., Co., PJIi Paunell, Ex parte; In re England, 805 V. Hurley, 113 Papillon V. Voice, 5, 12, 17, 18,30, 32,965 Pares, In re, 1018 V. Pares, 448 Parker v. Jiolton, 30, 31 V. iJrooke, 54, 63, 538, 545, 546, 580 V. Carter, 335, 338 V. Clarke, 793 • V. Downing, 420 r. Housetield, 801 V. Lechmere, 545 V. McKenna, 190, 211 r. Smith, 885, 890, 891 r. Sowerb}% 4-23 Parkes, Ex parte, 384 Parkes v. White, 180, 212, 567, 605, 608. 610 Parkin c. Cresswell, 38 Parkinson v. Hanbury, 188, 394 Parnell v. Kingston, 309, 319 Parr v. Applebee, 932 V. Eliason, 3156 Parrot v. Palmer, 871 Parrott v. Sweetland, 382 Parry v. Ashley, 1026 Parson's case, 183 Parsons t'. Briddock. 131 V. Dunne, 433, 524 V. Freeman, 756 Parteriche r. Pawlet, 861 Partridge v. Pawlet, 813 Passingham r. Sherljorn, 177 Patch V. Shore, 333, 334 I'atching v. Barnett, 748 Patent Bread Machinery Co.. In re, Ex parte, Valpy & Chaplin, 776 Patent Carriage Co., In re, 383 Patent File Co., In re, "ill, 778 Patterson i;. Murphy. 305, 307, 310, 326 V. Scott, 743 Patterson, Be, 1085 Paul V. Jones, 135 V. Paul, 331 Pawlet r. Delaval, 489, 579 Paxton r. Newton, 933 Payne v. Little, 579. 580 V. Mortimer, 333, 336, 895 Peachy's (Sir .John) ca.se, 247 Peacock's Trusts, In re, .")51 Peacock v. Burt, 360, 703 V. Evans, 677, 693 V. Monk, 537, 539, 540, 562, 564, 570, 585 to the [•] pages. 1 Peake, Expaifr, 379, .391 V. I'enlington, 44 Pearce r. Crutchlicld, .528 V. Gardner, 991 Peard r. Kekewich, 44 Pearl r. Deacon, 126 Pearmaiu v. Twiss, 768 Pearne v. Lisle, 964 Pear.se, In re the goods of, 905 & I'rotheio, Ex parte, 782, 783 r. Baron, 45 V. Pearse, 551 Pearson, In re; Ex parte Stephens. 347 r. Amicable Ass. Oil., 319 V. Benson, 108. 209 V. Lane, 994, 998, 1008 r. New.son, 200, 201 V. Pearson, 420 Pease r. Jackson. 701, 71^. 719 Peck r. Peck. 430, 432 Peckham r. Taylor, 310, 315 Pedder's Settlement, In re, 981, 994, 1007,1009, 1013 Pedder v. Mosely, 305, 319 Peele, Ex parte, 329 Peillon V. Brooking, 607, 618 Peirs V. Peirs, 754 Pell V. De Winton, 83 V. Northampton, &c., Railw. Co., 377 Pembert). Mathers. 898. 943 Pemberton v. McGill, 576, 607 Pembroke v. Thorpe, 886, 936 Pembrooke v. Friend, 762, 764 Pendlebury r. Walker, 122 Penfold I'. Bouch, 5(:8 V. Mould, 310, 525 Penhall r. El win, 343, 347 Penn r. Baltimore (Lord), 914 Pennell v. Deflfell, 249, 250 V. Millar, 678 Penny v. Allen, 245 Pepper r. Dixon. 422 Peppercorne r. Clench, 924 Perens v. Johnson, 195, 196 Perfect v. Lane, C80, 684, 686 Perks, Ex parte, 19S V. Mylred, 588 Perkyns v. Baynton, 755 Perrot v. Perrot, 853 Perry Ex parte; In re Collins, 783 Perry v. Barnett, Ixxviii V. Whitehead, 275 Perry-Herrick r. Attwood, 341, 795 Peter v. Nicolls, 336 V. Kich, 121 Peters r. Grote, 532, 578 V. Lewes & East Grimstead Railw. Co., 207, 564, 993 xlvi TABLE OF CASES. [The paging refers to tlio ['] page?. ] Pethybridge r. Burrow. 310, Ixxiv I'eto J*. Hammond, 385, 387 I'etre r. Duncombe, 123 V. Espinasse, 353 Pettiward v. Prescott, 419 Petty .!. Styward, 223 Phayer i\ Peree, 394 I'lu'lps V. Prothero, 953 Philips V. Philips, 718 Phillipps V. Smith, 855 Phillips, Ex parte, 1015, 1018, 1019 V. Barlow, 877 V. Daycock, 1021 V. Dickson, 134 V. Eastwood, 750 V. Edwards, 886, 893 V. Gt. Western Railw. Co., 952 V. Humpliray, 847 V. .Tames, 23 V. Parry, 768 V. Phillips, 230, 768, 1044, Ixxiii Phillipson v. Kerry, 51, 353 Phosphate Sewage Co. v. Hartmont, 182. 194 Picard r. Hine, .571, .573, 584 Pickering v. Ely (Bp. of), 941 V. Ilfracombe Pail way Co., 711 V. Stanford (Lord), 424 r. Vowles, 54, 57 Pickersgill r. Rodger, 407, 435 Pickett 1'. Loggon, 676 Pickles V. Pickles, 448 Pickstock V. Eyster, 308 Pidgeley v. Pawling, 855 Pierce v. Scott, 90 Piercy v. Young, 945, 946 Pierson v. Shore, 54, 1020 Piggot V. Pen rice, 273, 288 Piggottr.Stratton, 71,806 Pigot V. Bullock, 872 , Pigott and the Gt. Western Railw. Co., In re, 985 Pike r. Fitzgibbon, 565, 586, 617 V. Vigors. 176 Pilcher v. Rawlins, 702, 705 Pile V. Pile, 786 Pilkington v. Baker, 797 V. Gore, 71 Pilsworth V. Mosse, 260 Pimm V. Insall, 105 Pindar?'. Robinson, Ixxvii Pine, In re the goods of, 594 Pinnel's case, 400 Piper V. Piper, 762, 763 Pisani v. Att.-Gen. for Gibraltar, 199, 201 Pitcairn r. Ogbourne. 897 Pittr. Hunt. 512 r. Jack.son, 597 r. Mackreth, 141 Pitts r.,Snowden, 420 Plant I'. Tavlor, 718 Playford v. Playford, 682 Playters c. Abbott, 63 Pledge i\ Buss, 126 Plenty v. West, 742, 743 Plews V. Baker, 946 Plimmer r. Mayor of Wellington, 888 Plumb V. Fluitt, 794 Plymouth v. Archer. 998 Pockley v. Pockley, 752 Pocklington v. Bayne, 465 Podmore?!. Gunning, 903 Pole V. Pole, 57, 237, 239, 260, 261, 265 ?'. Somers (Lord), 413 Pollard, Ex parte, 778 V. Clayton, 917, 919, 930, 933, 965 V. Greenvil, 280 Pollexfen v. Moore, 358, 359, 363, 367, 386 PoUey r. Seymour, 989, 993 Pomfret (Earl of) v. Windsor (Lord\ 718 Poole's Estates, In re, 595 Poole V. Adling, 413 V. Middleton, 928 V. Olding, 409 Pooleyi;. Budd, 919, 965 r. Quilter, 180, 199 Poor V. Mial, 1051 Pope r. Biggs, 800 Popham ?C Exham, 200, 209 Porter, Ex parte, 140 Portland (Duke of) r. Topham. 443. 446, 464 Portmore (Earl of) v. Morris, 155 V. Taylor, 678. 679 Postlethwaite v. Lewthwaite, 71 Pott, Ex parte, 783 r. Todhunter. 336 Potter, In re, 508, 528 V. Commissioners of Revenue, 942 V. Potter, 899 Potts V. Curtis, 686 V. Potts, 39 Poulet (Ladv) v. Lord Poulet, 459 Poulson r. Wellington, 277; 473 Powell, Ex parte, 784 V. Aiken, 871 r. Anon, 368 V. Han key, 579, 621 V. Hellicar, 1086 V. Merritt, 1057 TABLE OF CAFES. xl Vll [The paging refers to the C'] pages.] Powell r. Price, 23, 21. .'>! 7\ Kill's^ 7115, 751 Powell DuflVyn Steiim Coal Co. r. Taff Kailw. Co.,';)34, 5)52 Power V. Power, 7(i3 Powi.s V. Corbet, 722 Powlett ?•. IJolton (Dutchess of ), 876 Pownall V. Anderson, 327 Powys r. lilajirave, 861 Pracd r. (iardner, 130 Prankerd r. Prankerd, 263, 261 I'rebble r. Bof;hurst, 329 Preesr. Coke, 188, 208 Price, E.c parte, 78."), 786 Price, //( ;r, StalTord v. vStafford, Ixxv V. Asslieton, 892 V. rUakemore, 251, 384 V. Byrne, 176, 211 V. Carver, 802 r. Fastnedge, 708, 722 r. .Jenkins, 330, 310, 1211 f. Morgan^ 846 V. Penzance (Corp. of), 936 V. Price, 271, 310, 315 V. Salisbury, 887 r. "Williams, 944 Prichard r. Ames, 545, 546 Pride v. Bnbb, 5()4 Prideanx r. Lonsdale, 482, 484 Priestly v. Lamb, 528 Primate v. Jackson, 699 Primrose v. Bromley, 121 Proby r. Landor, 274, 446 , Procter r. Warren, 348 Prodgers r. Langham, 336 Prole V. Soady, 432, 896 Prosser v. Eice, 705 Proudlev r. Fielder, 596 Prvce t." Bury, 775, 779, 785, 801, 1127, 1128 Pryor j'. Hill, 534 r. Pryor, 451 Pryse's Estates, In re, 284 Pugh, Ex parte, 519, 521 III re, 572 r. Vauglian, 857 Pultenev v. Darlington (Lord), 413, 4.33, 976, 980, 992, lOOS, 1009, 101 ), 1013 r. AVarren, 871 Pulvertoft r. Pulvertoft, 301, 335, 337, 341 Pumfrev, In re; Ex j)arte, Hillman, 340, 352 In re, the Worcester City & County Banking Co. v. Blick,''2.50, 394 Purdue v. .Jackson, 527 Pusey r. Desbouvhe, 429 Pusey !•. Pusey, 917, 961. 962, 963,961 Pybiis r. Smith, .5.39, .567. 605, 610 Pye, Ex parte; Ex parte Du Bust, 308 r. George, 807, 814, 833 QfEADK's Trusts, In re, .558, Ixxiv Queen v. De Lancey, 982 Qucensberry case. The, 457 Quennel ?'. Turner, 740, 749 Quilter r. Mapleaon, 48 Raby-oastij:, case of, 816 Radnor (Earl of) r. Shafto, 899 Raggett, lie, 708 Raikes v. Hall, 93 V. Todd, 139 Rainsdon's Trusts, In re, 554 Rakestraw v. Brewer, 60, Ixxiii Ralph V. Carrick, 990, 994 Ramsden v. Brearley, 5.53 V. Dyson, 888 V. Hylton, 338 V. Jackson, .333 r. Smith, 617 Ramskill v. Edwards, Ixxiii Ranclifte (Lord) r. Parkyns ( Ladv), 406. 409, 411, 412, 414 Randall r. Daniel, 29. 34 V. Errington, 176, 178, 209, 212, 213 V. Morgan, 337, 895 V. Randall, 233 V. Russell, 5.5, 56, 09 Ranelagh's (Lord) Will, In re, 67, 68. 69. 1102 Ranelaugh r. Hayes. 944 * Rankin v. Barnes, 446, 4.53 r. Huskisson, 951 V. Weguelin, 1083 Ranking r. Barnes, 466 liaphael r. Thames Valley Ivailw. Co., 937 Rashleigh v. Master, 977 Ratcliffe v. Barnard, 795 Ravenshaw r. HoUier, 304 Raw, In re, 992 Rawe V. Chichester, 54, 55, 57, 62 Rawlins v. Birkett, 617 Raworth v. Parker, 306 Rawson v. McCausland, 764 Ray, Ex parte, 547 Rayne v. Baker, 385 Rea V. Williams, 222 Read v. Crop, 411, 413, 424 V. Snell, 29 xlviii TABLE OF CASES. [The paging refers to the [•] pages.] Reddel v. Dobree, 1081 Reddin v. Jerman, 888 Bedding v. ^Yilkes, 886 Kedington v. Redington. 239, 253, 258, 261, 262, 263, 264, 265, 754, 757 Redmavne v. Forster, 801 Redsha'w v. Newbold, 802 Reece r. Tiye, 965 Reech v. Kennigate, 703 Reed v. Norris, 131, 193 Rees V. Berrington, 126, 131 Reese River Silver Mining Co. r. Att- Avell, 345, 349, 35U Reeve v. Reeve, 754 V. Rocher, 534 Reeves v. Creswick, 63 r. Reeves, 340, 965 Regent's Canal Co. v. Ware, 912, 985 Reg. V. De Lancey, 982 V. Robinson, 133 V. Salter, 133 Reid, Ex parte, 775 V. Reid, 426, 444, Ixxv r. Shergold, 280 Reid's case, 268 Reilly v. Garnett, 797 V. Walsh, 227 Remfry v. Butler. 927 Remnant i: Hood, 459 Rendlesham v. Woodford, 417, 419 Reuuie v. Morris, 924 V. Ritchie, 605 Rex v. Williams, 222 Reynard v. Arnold, 1001 * V. Spence, 422, 431 Reynell v. Sprye, 676 Reynolds, Ex parte, 211 In re, 1009 v. Clayton, 628 V. Godlee, 1048 V. McGloughlin, 758 V. Tor in, 424 V. Waring, 892, 901 V. Wheeler, 123 V. Wright, 245 Rhodes v. Cook, 455 V. Moxhay, 803 V. Rudge, 740, 742 Rhys V. Dare Valley Railw. Co., 913 Rice V. Gordon, 111, 676 v. Rice, 374, 388, 796 Rich V. Ccckell, 418, 538, 545, 562, 581, 582 r. AVhitfield, 981, 993, 1006 Richards v. Borrett, 783 V. Del bridge, 315, 1206 V. Noble, 871 V. Revitt, 951 I". Syms, 1064, Richard.son's case, 268 Richardson, In re; Shillito r. Hobson, Ixxiv r. Horton, 105, 345 V. Moore, 64 V. Richardson, 315, 316, 321 V. Small wood, 345 r. Smith, 947 Richie r. Couper, 195 Richmond v. North Lond. Railw. Co., 985 Ricketts ?•. Lewis, 104 Riddell v. Berrington, 557 Rider v. Kidder, 244, 253, 255 Ridgway, In re; Ex parte Ridgway. Ixxiv V. Woodhouse, 1050 Ridler, In re; Ridler v. Ridler, 340 Ridley, In re; Buckton r. Hay, 611 Ridout V. Lewis, 620 V. Plymouth (Earl of), 621 Rigby V. Connol, 941 V. Gt. Western Railway Co., 9C2 V. M'Namara, 123 Rigden v. Vallier, 222, 223, 224, 1086 Riordan v. Banon, 903 Ripley v. Waterworth, 233, 1047 Rippon V. Dawding, 546 Rishton v. Cobb, 532 r. Whatmore, 893 Rittson V. Stordy. 988 Rivers (Earl) v. Earl Derby, 459 Rivett-Carnac's (Sir J.) Will, In re, Ixxiii Roach V. Trood, 449, 455 Roadley v. Dixon, 421 , 422, 423 Roberts, In re, 790 Roberts' Trusts, In re, 508 Roberts v. Collett, 527 Roberts v. Croft, 746, 783, 796 V. Dixwell, 30. 34, 597 V. Kinc;sley, 51 V. Uoyd, 319, 323 V. Pocock, 749 V. Roberts, 212, 748 V. Smith, 424 V. Spicer, 550 V. Trenavne, 629, 640, 652, 657, 666" i: Tunstall, 211, 214 r. Walker, 741, 1042, 1044 Robertson, In re, 1025 V. Norris, 187, 188 Robinson, Ex parte, 784 Robinson's Settled Estate, Ee, 516 Robinson, In re, Ixxvii V. Briggs, 702 r. Chartered Bank, 927 V. Davison, 703 TABLE OF CASES. xlix [Tho paging refers Robinson v. Gee, 7r)5 r. Lit ton, 8()D, 817, 841, 860 r. London Hospital (Gov- ernors of J, loll, 1().'):5 r. Lowater, 83, 84, 98, 101, 102 V. Nesbitt, 711 V. Pickerinf?, 58,5 V. Preston, 2:12, 223 V. Ridley, 209 V. Robinson, 988, 992, 997. 1001 r. Kfisher, 798 V. Taylor, 1042 V. Trevor, 718 r. Wbeelwrieht, 433, 618 V. Wilson, 126. 422 Robson V. M'Creifrht, 342' Rocbe V. O'lJrien, 212, 213, 214, G84 Rochtbrd, lie, 613 I'. Dawes, 770 V. FitzTnanrice, 24, 2.5, 29, 32 Rock V. Gorrisen, 791 Rodders r. Marsball, 271, 276, 328 Rodhouse r. Mold, 768, 771 Roe V. Mitton, 339, ^41 Rogers v. Cliallis, 929, 954 V. Jones, 407, 431, 435 r. Mackenzie, 121 V. Rogers, 1044 V. Skillicorne, 80, 84, 91 Rolfe r. Chester, 721 I'. Gregory, 110, 112, 249 V. Perry, 763 Rollfe V. Budder, 545 Rolls V. Pearce, 10S2 Rolt v. Somerville (Lord), 864, 874 Ronayne's Estate, In re, 202 Rook r. Worth, 1013 1018, 1026 Rooke?\ Kensington (Lord), 761 Rooper t\ Harrison, 701, 707, 719 Roscommon r. Fowke, 296 Rose V. Bartlett, 401, 404 V. Rolls, .525 V. Sharrod, 610 V. Wafson, 379, 393 Rosenthall's Settlement, Re, 595 Rosher r. Williams, 336, 340 Ross's Trnst, 610 Rossiter, In re, 76(i, 767 V. Rossiter, 23 V. Walsh, 191 Roswell's case, 288 Rotherham r. Rotherham, 768 Rothschild v. Brookman, 194 Roundell v. Currer, 432 Routledge v. Dorril, 449 Row, In re, 1009 V. Bowdeu, 237 4 WHITE ON EQUITY. to the [*] pagefi.] RowlM)tham r. Dnnnett, 904, 905 Rowc V. .Jackson, 19 1, -196, -197, 499, 501, 506, 517 r. Rowc, 5H2 Rowland v. Cuthbertson, 42.5 V. Morgan, 38 Rowley i'. Adams, 2.34 V. Rowley, 444, 4.52, 453 r. Unwin, 579 Rowson r. Harrison. 764 IJiidgc r. Weedon. 551 Knfiles V. Alston, 511 linnihold v. Rnmbold, 419 Rnmboll r. Rumboll, 238, 241. 24.5, 260, 261 Rnmford IMarket case, 54 Rnndle v. Rnndle, 237, 242, 245, 253 Rushljrook r. Lawrence. 188 Rushlbrth, Rr parte, 135, 137, 139 Rusbworth, Ex jxirte, 139 Rushworth's case, 60 Russel !'. Russel, 773, 774, 779. 788, 801, 1122 Russell, Ex parte, 345, 352 V. Anstwicke, 196 r. Jackson, 904, 905, 906 r. Plaice, 107 Russell Road Purchase Money, In re, 703, 706 Rutherlbrd, Ex parte, 346 Rutter r. Daniel, 786 V. Maclean, 413 Ruvigne's case, 183 Ryall r. Rowles, 324, 433, 528. 1065, 1074 V. Rvall, 247. 248, 249 Ryan, Thomas, In re, 225, 230, 245, '892 Rycroft r. Christie, 311, 326, 550 Ryland v. Smith. 535 Ryle r. Swindells, 686 Sabin v. Heape, 94, 101 Sackville r. Smyth, 767, 768, 770, 771 Sackville West v. Viscount Holmes- dale, 20, 21, 24, 28, 34, 39, 44, 45, 47, 48 Sadler r. Pratt, 453 Sadlierr. Butler, 409, 410, 412 St. Albyn r. Harding, 678, 679, 693 St. Amand v. Jersev (Lady), 344 St. Germains (Earf of ) r. Crystal Pal- ace Railway Company, 377 St. George r. 'Wake. 482, 483 Salkeld r. Abbott. 123 Salmon r. Cutts. 200. 213, 214 r. (Ubbs, 445, 449 Salt V. Chattaway, 741, 1041, 10.56 Salter v. Bradshaw, 678, 679, 693, 694 1 TABLE OF CASES. [The paging refers Salwey r. Salwey, 529 Sanipayo v. Gould, 44 Samuda v. Lawlbrd, 955 Samuel v. Samuel, 29, 30 Samwell v. Wake, 740 Siinders i: Deligne, 702 V. Kiohards, 108 V. Eodway, 943 SaJiderson, Ex parte; Re Alexander, 139 V. Cockermouth and Work- ington Rail. Co., 936 r. Walker, 176, 211 Sandwich (Earl of) v. Lichfield (Earl of), 70 Sanger v. Sanger, 590 Sarth r. Blanfrey, 274, 277 Saunders v. Dehew, 70G, 715 V. Leslie, 384 Savage v. Carroll, 888, 892, 900 V. Foster, 888 V. Humble, 106 Savery v. King, 200, 212 Savile v. Blacket, 749 V. Kinnard, 984 Savill V. Savill, 416, 433 Siiville V. SaviUe, 816, 869 V. Tankred, 964 Saville's case, 13, 816, 869 Sawyer v. Goodwin, 130 V. Shute, 526 Saver v. Sayer, 271 Sayers v. Collyer, 956, 957 Savre v. Hughes, 256, 258 Scales V. Baker, 582 V. Maud, 310, 315, 1205 Scarborough v. Borman, 614, 615 Scarisbrick v. Skelmersdale (Lord), 21 Scarsdale (Lord) v. Curzon, 26, 28, 39 Scarth, In re, 977 Scatterwood v. Edge, 832 Scawin v. Scawin, 263, 265 Scholefield v. Spooner, 616 Schroder v. Schroder, 406, 407, 417, 419 Scott's Estate, Be, 717 Scott, Ex parte, 800 V. Beecher, 754, 758 V. Davis, 282, 610 v. Dunbar, 684 V. Knox, 126 V. Rayment, 939, 954 V. Spashett, 508, 520, 534 V, Steward, 46 V. Tyler, 106, 111 Scould V. Butter, 907 Scriven v. Tapley, 496, 503, 506, 516. 517 Scroggs V. Scroggs, 463 to tho [*] pages, ] Scroope v. Seroope, 237, 260 Scudamore v. Scudamore, 973, 976. 978, 981, 1039 Seabourne v. Powel, 61 . Seagood v. Meale, 886 Seagram v. Knight, 212, 859, 876, 877, 878, 879, 880 Seagrave v. Kir wan, 288 Scale V. Hayne, 354 V. Scale, 29 Sealey v. Stawell, 34 Seaman v. Woods, 413 Searle v. Law, 314 Seeley v. Jago, 1004, 1007 Seilack r. Harris, 903 Selby V. Cooling, 108 V. Pomfret, 716 V. Selby, 362, 386 Selkrig v. Davies, 230 Sells V. Sells, 49, 50 Selsey (Lord) r. Rhoades, 191 Sergeson v. Sealey, 272, 275, 277, 1015, 1016, 1018 Serle v. St. Eloy, 727, 729, 732, 752, 753, 768 Seton V. Slade. 953 Severance ?■. Civil Service Supply As- sociation, 588 Sewell V. Moxsy, 319 r. Walker. 679 Seymour v. Tresilian, 621 V. Vernon, 1026 Sevs V. Price, 1019 Shackle r. Baker, 941, 950 Shadbolt v. Thornton, 988 Shaftesbury (Earl of) v. Marlborough (Duke of), 63 Shafto c. Adams, 683 r. Shafto, 755 Shaken r. IMarlborough (Duke of ), 803 Shakespear, In re, Ixxv, Ixxvi, Ixxvii Shallcross v. W^eaver, 210 V. Wright, 745, 1044 Shanley v. Baker, 1056 I r. Harvey, 1083 Shannon v. Bradstreet, 272, 275, 277, 278, 284, 286, 287 Shard v. Shard, 1025 Shargold r. Shargold, 1071, 1074 Sharp r. Leach, 679 r. St. Sauveur, 988, 1005, 1010 Shai-pe V. Foy, 703 Sharpless v. Adams, 705, 706 Sharpley v. Hurrel, 640, 652 Shattock V. Shattock, 568, 572, 573, 574, 594 Shaw, In re, 1024 V. Borrer, 77, 83, 88, 89, 95, 96 V. Bunny, 188 f I TABLE OF CASES. u [The paging refers Shaw r. Fishor, 921, 922, 926 J). Foster, 781 r. .I(tlnisf)n, 718 V. Nciile, 707, 714 r. Wci^li, 5, 9, 16 Bhoddon v. (JoDdricli, 418 Slu'Hiokl Gas Coiisuiners' Co. v. Har- . rison, 922, 940 Sh(4licl(l Union Bank Co., Ex parte, 78:5, 788 Shplford V. Acland, 563 Slielly's case. 8, 19, 21, 697 Shelley r. Shelley, 20, 42 Shelly V. Nash, d^^^ Shelton r. Watson, 29, 30, 33 Shei'liRiirtl '■• Walker, 889 Shei)heid, Ex parte; In re Shenherd, 590 V. Gillespie. 926 r. Titley, 713. 714 Shepley ?•. Woodhousr, 632 Sheppard r. ISIuri.hy, 92.3, 927, 928 Sheridan's Estate, //(. re, 341 Sherly v. Fagg, 702 Sherman, Ex parte, 798 Sherwood v. Robins, 679 Shewell v. Dwarris, 550 Shield, In re; Pethybridge r. Btirrow, 310. Ixxiv Shilleto r. Collett, .525 Sliillibcer r. .larvis, 887, 890 Shillito )'. Ilobson, Ixxiv Ship])erdson v. Tower, 993 Shipton, Rector of, In re, 983, 984 Shii>way v. Ball, .528 Shirlev r. Martin, 695 Short r. Wood, 1008 Shower r. Pilek, :>()!, Ixxiv Shrewsbury (Earl of) r. North Staf- fordshire Railwr.y Co., 57 Shropshire Union Railways & Canal Co. V. the (^icen, 793, 794 Shnrmur r. Sedgwick, 338 Sibbering v. Balcarras (Earl of), 684, 694 Sichel V. Mosenthal, 929, 939 Siddon r. Charnells, 702 Sidebotham, E.r jxirle, 933 r. Watson. 749 Sidniouth v. Sid mouth, 239, 244, 255, 2.59, 261, 263, 2(>4, 265 Sidney v. Miller, 10.50 r. Ranger, 202 r. Shelley, 1050 Siggers?'. Evans, :;()!, 305, 348 Silk r. Eyre, 134 V. Prime, 56>! Simmins r. Shirlev, 860 Simmonds r. Palles, 304, 305 to the [•] pngep.] Simmons r. Pitt, 1043, 1051 r. Rose, 741 r. Simmons, 544 Simpson r. Ashworth, 990 Sims r. Thomas, 342, 348 Simson r. Jones, 535 Sinclair c. Jackson, 716 Singleton v. Tomlinson, 905, 1053 Sinnett I'. Herbert, 748 Sisson I'. Giles, 433, 1005, 1007, 1011 Skarfv. Soulby, 343 Skeats v. Skeats. 260, 261, 263 Skegg's Settlement, In re, 1007, 1025 Skelton v. Flanagan, 455 Skidmore v. Bradford, 258, 895 Skingley, In re, 861 Skinner, Ex parte, 208 Slack V. Midland Railway Co., 959 Slack ford v. Long. 1037 Shinning r. Style. 552 Slater's Trusts, In re, 689 Slater r. Willis. 245 Sleech v. Thorrington, 489, 531, 532 Sloane r. Cadogan (Lord), 275, 317, 319, 342 Slocombe r. Glubb, 478, 483 Smallman's Estate, Re, 565 Smallman r. Onions, 872 Smartle v. AVilliams, 336 Smedley v. Varley, 197 Smith's case, 7)1 re South Durham Iron Co.. 777 Gye, 790 Smith, Ex parte; re 'Hildyard,783,765, 788, 790 In re ; Chapman r. Wood, 608 Marv, a lunatic. In re, 1013, ]'()16 V. Ashton, 275, 279 V. I5aker, 237, 242. 244, 269, 274, 276 v. Bloxam, 722 V. Boucher. 803 V. Cam el ford (Lord), 467, 579 V. Casen. 1()H7 r. Cherrill, 340, 343. 346, 353 r. Chichester. 60 V. Claxton, 972, 1006, 1045,1046 V. Constant, 781 V. Cooke, 871 V. Death, 462 V. Dormer, 830 V. Evans, 385 r. Fitzgerald, 749 V. Garland. :>36 r. (Juvon. 80, 83 r. Hibbard, 361, 368, 376 r. Houblon. 462 V. Hurst, 304, 308 Il] TABLE OF CASES. [The paging refers Smith V. Iliffe, 51, 52 !). Kay, 678 r. Keating, 304 V. Lucas, 408, 433, 434, 617, 618 r. Lvne, 302, 326, 413 V. ]\iatthews, 229, 309, 510, 523 V. Peters, 948 v. Smith, 227, 232, 321, 520, 606, 764, 1085 V. Spence, 408, 434 V. Tatton, 345 V. Turner, 887 V. Warde, 267, 305 Smithers v. Green, 522, 523 Smithsou v. Thompson, 711 Smithwick (;. Sniithwick, 989 Sneed r. Sneed, 274, 279 Snell, Ec, 136 Snellgrove v. Baily, 1060, 1064, 1072, 1083 Snelling v. Thomas, 898 Snelson v. Corbet, 621 Snowdon, Ex parte, 123 Soames v. Edge, 935, 936, 954 Soar V. Foster, 256 Societo Generale de Paris v. Tramways Union Co., 796 Sockett V. Wray, 542, 569, 60S Solomon v. Solomon, 762 Somerset (Duke of) v. Cookson, 917. 962, 963 Somerville v. Mackay, 196 Somes V. British Euipire Shipping Co., 944 Sunday's case, 1 1 Sondes' (Lord) Will, In re, 455 Soome V. Glen, 652 Sjpwith V. Maughan, 420. 431 Soutar's Policy Trusts, In re, 556 South V. Bloxam, 127 Suuth Durham Iron Co., In re; Smith's case, 777 South Eastern Railway Co., In re, 1009 South Essex Gas Co.. Re, 187 South Wales Railway Co. v. Wythes, 933, 936, 9:57, 944 Southall V. British Mutual Life Ass. Society, 184 Southampton (Lord) v. Brown, 329 V. Marquis of Hertford, 1050 Sowarsby v. Lacy, 82 Sowerby v. Fryer, 858 Spackman v. Foster, 780 V. Timbrill, 105 Spalding v. Ruding, 128 V. Shalnier, 73, 90 V. Thompson, 721 Sparkes v. Bell, 589 to the [•] pages.] Span'ow V. Shaw, 9, 16 Speer's Trusts, In re, 983 Spencer, /« re, Ixxvii V. Harrison, 1004, 1005 V. Pearson, 703, 704, 707 V. Scurr. 856 V. Slater, 308, 34s V. Spencer, 465, 467 V. Topham, 2oO V. Wilson, 1053 Sperling v. Rochtort, 524 V. Toll, 994 Spicer v. Dawson, 599 V, Spicer, 530 Spiller V. Spiller, 803 SJjirett V. Willows, 343, 344, 519, 521, 522, 529, 1202 Sporle V. Whayman, 779 Spottiswood's case, 120 Spottiswoode v. Stockdale, 306 Spratley v. Wilson, 1085 Spring V. Allen, 801 V. Pride, 176, 178, 608 Springett v. Jennings, 904 Sproule V. Prior, 362, 386 vSpurgeon v. Collier, 337, 897 Spurway r. Gljnn, 748 Squire v. Dean, 579 Squires v. Ashford, 514, 532 Stacey v. Elph. 180 Stackhouse v. Jersey (Countess of), 785 Stackpole v. Beaumont. 528 Stackpoole v. Stackpoole, 335, 340 Stafibrd v. Staflbrd, Ixxv Stamford (Earl of) v. Hobart, 6, 17, 18, 33 Stamford, Spalding, &c., Bank v. Ball, 562 V. Omly, 287 Standard v. Metcalf, 638 Standen v. Bullock, .334 Standering v. Hall, 1006 Standford v. Marshall, 539, 542, 570, 584 Standing v. Bowring, 253, Ixxiv Stanford v. Hurlstone, 864 Stanhope r. Verney, 389, 718 Stanilaud v. Willot, 1078, 1079 Stanley r. Coulthurst, 47 V. Jackman, 36, 37, 46, 48 V. Stanley, 20, 607 Stansfield v. Habergham, 860 Stanton v. Hall, 514, 515, 546 V. Percival, 920 Stapilton v. Stapilton. 339, 683, 943, 1180 Stapleton v. Colvile, 726. 737 V. Haymen, 931 V. Stapleton, 38, 310 TAP.LE OF CASES. liii [The imfjin;,' refers Stead V. Galley, 5:^ V. Nelson, 5G3 V. Newcligate, 981, 5)84, !)!»;>. 1007, lOO'J Steed V. Pieeee, 972, 101:5, 1021, 1023 Steedman v. Poole, 608 Steel V. Dixon, 125 Steele v. Murphy, 30 1 V. Waller, 310, 327 Steeven'.s Hospital r. Dyas, 892 Steinmetz r. llalthin, 518 Stephen's Estate, In re, 797 Stephens v. Olive, 338, 943 V. Stephens, 409, 412 Stephenson. In the goods of, 596 V. Heathcotc, 728, 738, 740, 742 Stepney v. 5iddulph, 211 Stevens, E.c parte, 308, 378 r. Savage, 528 Steward v. Blakeway, 233, 598, 599 Stewart, In re, 1007, 1024 Ex parte; re Shelley, 775 r. Henry, 409 Stiad r. Nelson, 280 Stiokland v. Aldridge, 902, 903, 904 Stifle V. Everett, 514 Stileman r. Ashdown, 237, 2(i0, 262, 338, 314 Stiles V. Cowper, 278, 287, 893 Stilwell V. Wilkins, 676 Stirling v. Forrester, 120 122 Stock V. McAvoy, 263, 264, 265 'v. Vining, 52 Stocker v. Brocklebank, 941 V. Harbin, 741 Stockley v. Stockley, 883 Stokes, Ex parte, 140 V. Clarke, 70 V. Moore, 886 Stokoe i\ Cowan, 342 Stone's Estiite, In re, 468 Stone V. Godfrey, 339 V. Lidderdale, 647 V. Parker, 764 V. Stone, 264 V. Stone and P>rownrigg, 577 V. Thomas, 199 Stonor's Trusts, lie, 617 Stonor I'. Curwen, 22. 30, 32 Storer r. Great Western Kailway Co., 935, 936 Storey v. Waddle, 959 Storry r. Walsh, 8:5, 105, 108 . Strafford's (Lord) case, 159 Strahan v. Sutton, 420, 422 Stranije v. Fooks, 131 Stratlbrd v. Aldborough (Lord), 282, 286 to the [*] pages.] Stratford (•._ Powell, 21, 431 r.'Twynam, 206 Strathinore (Countess of) r. Howes, 471, 479, 480, 482, 485, 864 Stratton v. Best, 413 V. Murphy, 61, 63, 209 Stray r. Russell, 927, 928 Streatfield v. StreatUeld, 22, 51, 397, 405, 406, 4:;0, 432 Street v. Kighy, 944 Strett V. Widniore. 248, Ixxiv Strode v. Kussei. 275 V. Winchester, 903 Strong r. Bird, 302, 327 r. Strong, 344 Stroud r. Norman, 455 Stroughill V. Anstey, 87, 88, 91, 92, 94. Ill Stuart I". Castlestuart, (Lord), 4.15 V. Ferguson, 383 r. Kirkwall (Lord), 570. 572, 584 V. Lond. and North Western Railway Co., 901 Stubbs?). Roth, 61, 03 V. Sargon, 528 Stuclev's Settlement, In re, 989 Stump r. Gaby, 214, 694 Sturgis V. Champnevs, 507, 508, 510, 511, 512, 513, 514, 532, 534 1129 V. Corp,' 562, 586. 610 Suggitt's Trusts, In re. 519, 521 Summers, In re, 772 V. City Bank, 579, 603 V. Griffiths, 676 Sumpter r. Cooper, 775, 784, 800 Suppler. Lowson, 448 Surcombe v. Pinniger, 894 Surridge's Trusts, In re, 527 Surtoes v. Surtees, 33 Sutcliffe V. Cole, 1050 Sutherland v. Briggs, 888, 889, 901 Sutton V. Chetwyud, 340 Sutton V. Jones, 180 V. Sutton, 722 Swain r. Wall, 117. 123. 124, 125 Swainson r. Swainson, 754, 759 Swan's Estate, /;( re, 124 Swan, lie, 134, 508, 524, 529 V. Holmes, 405, 412 Swannock v. Lj^ford, 485 Sweet r. Meredith, 956 Sweet )'. Southcote, 703 Sweetapple r. Biudon. 4, 10, 11. 28, 971, 970 Sweeting r. Sweeting. 904 Sweetman v. Sweetman, 431 Swift u. Davis, 264 liv TABLE OF CASES. [The paging refers Swinburn r. Ainslie, 874, Ixxviii Swire v. Redman, 123 Syer v. Gladstone, Ixxiv Svers r. Syers, 940 Svkes' Trusts, Be, 303, 573, 605 Sykes v. Sheard, 993 r. Sykes, 1045 V. Sykes and Smith, 577 Symes r. Hughes, 350 Symmes v. Symonds, 717 Symmons v. Rankin, 373, 374 Symonds v. Hallett, 600 r. Wilkes, 48. 611 Symondson v.- Tweed, 892 Symons v. Rutter, 992 Sympson v. Hornsby, 424 Synge v. Hales, 34 r. Synge, 414 Synnot r. Simpson, 304, 307, 308 Tag ART, Ex parte, 785, 786 Taggart v. Taggart, 24, 25, 36 Tahiti Cotton Co., In re; Ex parte Sar- gent, 775 Tait V. Lathbury, 83, 994 V. North wick (Lord), 740, 742 Talbot V. Cody, 259 V. Frere, 721 (Earl) V. Hope Scott, 864 r. Radnor, 416 V. Staui forth, 679, 682, 683 Tamplin v. James, 958 V. Miller. 619 Tamworth (Lord) v. Ferrers (Lord), 865 Tanfield r. Davenport, 488 Tanfield's case, 667 Tankerville (Earl of) v. Fawcett, 755 Tanner, Ex parte, 198 V. Ellworthy, 56, 57 V. Wise, 965 Tanqueray-Willaume & Landau, In re, 90, 94, 101 Tapley v. Kent. 1081, 1086 Tarback v. Marbury, 344 Tardiff r. Robinson^ 64, 66 Tardifle v. Scrughan, 367, 373, 381. 382 Tarleton v. Liddell, 338 Tarsey's Trust, In re, 547 Tasburgh's case, 524 Taster v. Marriott, 55 Tate )•. Hilbert. ]()77. 1078, 1079, 1082, 1089, 1086 V. Leithead, 313, 1079, 1087 ?•. Williamson, 207 Tatham v. Drummond, 595 V. Piatt, 901 to the [*] pages.] Tathem v. Vernon, 20, 271, 327 Tatlock V. Jenkins, 741 Taunton v. Morris, 520, 521 Taylor's Settlement, In re, 993, 1024, 1025, 1041 Taylor, Ex parte, 183 In re, 1017, Ixxix V. Alston, 241 V. Auston, 515 V. Beech, 894 V. Bowers, 351 V. Coenen, 343, 344 V. Davis, 951 V. Eckersley, 929 V. Fleming, 222 V. Hawkins, 108, 111 V. Haygarth, 1045, 1057 V. Horde, 205 V. Jones, 343 V. Linley, 423 V. ]\Ieads, 549, 564, 568, 600 V. Mills, 135 V. Neville, 916, 917, 918 V. Poncia, 104 V. Portington, 901 V. Pugh, 483 V. Rochford, 152, 643 V. vSalmon, 193 r. Stibbert, 287 r. Stray. 929 V. Taylor, 237, 262, 265, 422, 585, 1044, 1056 V. Wheeler, 272 Taylour r. Rochford, 152, 643 Teague's Settlement, In re, 611 Teasdale r. Braithwaite, 338 Tebb V. Hodge. 712 Tebbitt v. Tebbitt, 52 Tee r. Ferris, 904 Teed v. Carruthers, 379 Telegraph Despatch, &c., Co. v. Mc- Lean, 953 Tempest, In re, 205 Temple v. Baltinglass, 286 Tench v. Cheese, 740 Tennantr. Trenchard, 180,211 Tennent v. Tennent, 34, 188, 676 Thacker v. Key, 464 Thackwell v. Gardiner, 280, 562 Tharp, In the goods of, 289, 290, 563, 599 Thayer v. Lister, 304 Theilusson v. Woodford, 410, 417, 419 Thomas r. Bennett, 621 V. Burne, 63 V, Buxton, 392 x\ Spencer, Ixxvii I'. Thomas, 721 V, Townsend, 90 TABLE OF CASES. Iv [Thf paginfj refers to tho [*] pftRPs.] Thomas v. Williams, 4(i(), 81 1 Thomas's Settlement, /;; re, 7i) Tliomlinson r. Smith, 108 Thompson's Trusts, In re, 988 Thompson, E.r parte, oOD V. Buna, 4:2:5 V. FisluM-, 2!) V. llefiernau, 1081, 108G V. Hodgson, 1088 V. Leake. 1)30 V. Nelson, 421 V. Simpson, 52 V. Towne, 273 V. Watts, 42r> V. Wel)ster, 339, 343, 347 V. Whit more, 49, 51, .358 Thompson and Curzou, In re, Ixxv Tliompson v. Simpson, 444 Tliorn r. The Commissioners of Public Works, 917 Thornber v. Wilson, 988 Thornbury c. IJevil, 942 Thornton i\ Bri-jht, G17 V. Dixon, 230, 233, 234 V. llawiey, 981, 992 V. McKewan, 137, 139 V. Thornton, 409, 413 Thorold v. Thorold, 1070 Thorpe, Ex parte, 800 V. Holdsworth, 718, 783 V. Hosford, 929 V. Owen, 310 Three Towns Banking Co. v. ]Madever, 350 Thrupp r. Harman. 580 Thwaites, Ex parte, 198, 214 Thynn r. Thynn, 903 Thynne (Lady) v. Gleugall (Earl ol), 892 Tibbitts V. Phillips, 227 V. Tibbits, 40G, 431 Tidd ('. Lister, 514. 520, 532 Tierney v. Wood, 302, 311, 312 Tilv V. Smith, 991 Tipping V. Pigot, 833 V. Power, 801 V. Tipping, 621, 622 Todd, In re, 527 V. Gee, 953 r. Moorehouse, 258 Toft r. Stephenson, 321 • Tollemaehe r. Coventry, 18, 38, 41 ('. Tollemache, 877 Toilet V. Toilet, 2(59 Torakins v. Colthurst, 769 Tomkiuson r. Staight, 901 Tomkyns v. Blane, 42(5 f. Ladbrooke, 431 Tomliuson c. Leigh, 50 Tommcy r. White, 214 Tiinnics, In re, 352 Tooker r. Annesley, 877 Toole r. Medlicott, 887, 892, 900 Topham v. Constantine, 376 r. Portland (Duke ofj, 443, 446, 447, 448, 453 Torrance r. Bolton, 392 Torre r. Torre, 50 Torrington (Vi.sc. ) v. Lowe, 920 Tottciiliam's Estate, In re, 57 Tottenham ?'. P^mmett, 677 V. Green. 678, 691, 692 Touche r. Jletropolitan Pailway Ware- housing Co., 3;J0 Tournav v. Tournay, 459 Tourvil'le r. Naish, 360 Tower r. Pons (Lord), 740, 742, 745 Town Ex parte, 199 Townend r. Toker, 336, 337, 339 Townleyr. Bedwell, 1001, 1002 Townsend v. Devaynes, 2:50 r. Lowfield, 659 V. Westacott, 343 Townshend v. Mostvn, 752, 753, 756 Tracv r. Tracy, 840," 859 Trafford v. Boehm, 1008, 1013 V. Trafford, 38, 39 Travers r. Travers, 617 Tregonwell r. Sydenham, 1017, 1049, 1050 Trench v. Harrison, 249 Trestrail r. Mason, 770 Trethowan, In re, 787 Trevelyan v. Charter, 189, 200, 210, 212 Trevor, Ex parte, 308 r. Trevor, 6, 12, 21, 33, 399 Trimmer r. Bayne, 359, 362, 386 TriqueffJ. Thornton, 1007 Trollope r. Poutledge, 449 Trott V. Buchanan, 744, Ixxvii Troughton r. Troughton, 721 Troutbeck v. Boughev, 549, 564 Trowell v. Sheuton, 335, 336, 337, 346, 894 Trower r. Kaiightley, 972, 1006 Trumper r. Trumper, 56, 71 Trye v. Sullivan. Ixxiv Tiibb's Estates, Re, 521 Tucker, In re, Ixxv V. Burrow, 255 r. Kaycss, 1050 Tucker r. Tucker, 451 Tudor r. Anson, 272, 275 Tuer r. Turner, 1006 TugTuan r. Hopkins, .")95, 596 Tuiwell. f)i re, 1025 Tulk V. Moxhay, 651 Ivi TABLE OF CASES. [The paging refers Tnllet V. Tullet, 1019 Tullett r. Armstrong, 612, G13, 615^ 1179 Tullit V. Tullit, 1019 TurnbuU v. Forman, Ixxvii V. Garden, 194 Turner, Ex parte, 135, 1 36, 799 Turner's Estate, In re, 350 Settled Estates, In re, Isxv Turner);. Att.-Gen., 904, 905 V. Caultield. 592 V. Collins, 694 V. Letts, 788, 9G6 V. Marriott, 392 V. Richmond, 703, 717 f. Sargent, 34, 36, 46, 48 V. Trelawny, 198 V. AVright, 860 Turner's (Sir Edward) case, 512 Turnley v. Hooper, 338 Turquand, Ex parte; lure, Fothergiil, 136 Tussaud V. Tussaud, 618 Tweddell v. Tweddell, 682, 756, 757 Tweedale's Settlement, Re, 526 T\vee(lie& Miles, In re, 993 Tweedy, Ex parte, 787 In re, 960 Twistleton v. Griffith. 630, 633, 646, 653, 659, 672, 677, 693 Twort V. Twort, 871, 872 Twyne's case, 351 Tvl'den's Trust, In re, 1009 Tylee v. Webb, 775 Tyler v. Lake, 550 V. Yates, 676, 679, 687, 689, 691, 692. 693, 1098 Tynte v. Hodge, 682, 686 Tvrcounel (Lord) v. Ancaster (Duke V), 441, 444 Tyrell v. Hope, 546 Tyrrell v. Bank of London, 202 Tyssen v. Benyon, 432 Udal v. Udal, 812, 817, 837, 838, 852 Underhill v. Horwood, 121 Underwood, In re, 999 Unett V. Wilkes, 419 Ungley v. Ungley, 894 Union Bank of London v. Lenanton, 932 Union Bank of Manchester, Ex jjarie, 776 Unity Joint Stock Mutual Banking Association v. King, 775, 788 Unsworth, Be, 678 Unsworth's Trusts, In re, 203 Upton V. Ba.sset, 334 to the [*] pages.] Usborn r. Usborn, 860 Usticke V. Peters, 411, 412 Uvedale v. Uvedale, 817, 872 Van v. Barnett, 989, 1004, 1010, 1047 Vance v. Vance, 258 Vandeleur v. Vandeleur, 757 Vandenberg v. Palmer, 305, 302 Vanderzee v. Aclom, 465, 467 r. Willis, 722, 792 Vane v. Barnard (Lord), 10, 816, 863 V. Dungannon (Lordj, 426, 433, 448 V. Fletcher, 288 (Earl of) V. Rigden, 108 V. Vane, 213 Vansittart v. Vansittart, 563, 943 Varden, Seth Sam v. Luckpatby Royjee Lallah, 778 Vardon's Trusts In re, 408, 434, Ixxiv Vaughan v. Buck, 514, 519, 532 V. Burslem, 27, 28. 38 V. Vanderstegen, 569 V. Walker, 584 Vaughton v. Noble, 177 Vavasour (a lunatic). In re, Ixxix Veal v. Veal, 527, 1083, 10-4 Venables v. Morris, 31 Veuour's Settled Estates, //; re, 983 Vernon v. Egremont (Lord), 287 V. Vernon, 277, lt)19 Verulam (Earl of) v. Batlmrst, 30 Vickers v. Cowell, 223 r. Vickers, 947 Villarealr. Galway (Lord), 421 Villers v. Beaumont, 353 Vincent v. Spicer, 851 Viner t;. Vaughan, 855, 856 Viret V. Viret, 895 Vivers v. Tuck, 940 Von AVitzleben v. Siltzer, 50 Voss, In re, 555. 556 Voyle V. Hughes, 321 Waddell v. Blockley, 195 V. Toleman, 7!;9, 805 Wade, In re, 1017 V. Coope, 127 V. Paget, 272, 278, 449 V. Wilson, 802 Wadham v. Rigg, 249 Wagstaffe v. Smith, 546, 562, 610 W^iinford v. Heyl, 574, 576 Wainman v. Field, 40 Wainwright v. Bendlowes, 726, 727 V. Hardisty, 563 Waitei'. Webb, 988 TABLE OF CASES. Ivii • [The piiKiiig refers Wake, Ex parte, 7!)9 V. Wiike, 421, 42i), 4:51 Wakefield v. Gil)l)on 347, (jwii V. lilanelly Railway & Dock Co. 949 Waldo V. Waldo, 877 WaldiDii V. Sloper, 79G Wallbrd c. Gray, 895 Walliampton Estate, In re, 336 Walker, E.r parte, 985 (Anne), /" re, 528, 530 V. Armstrong, 50 V. Bratliord Old Bank, 324 V. Denne, 981, 982, 989, 1007, 1045, 1103 V. Drury, 520, 523 V. Eastern Counties Railway Co., 984 V. Flamstead, 84 V. Hardwick, 740 V. JaeksDn, 720, 729, 737 V. Laxtou, 749 V. Mottrani, 950, 951 V. Preswiek, 123, 359, 367, 387 V. Smallwood, 89, 94 V. Walker, 420, 887, 897 V. Ware, &c.. Railway Co., 370, 377 Wall V. Colsliead, 992, 1045, 1046 V. Thurborne, 465 V. Tonilinson, 535 r. Wall. 433 Wallace r. Auldjo, 518 r. Greenwood, 1024 r. Wallace, 682 Waller v. Dalt, 630, 080 Walley v Wallev, 54, 61, 62, 63 Wallgrave v. Tebbs, 902, 905 Wallinger v. Wallinger, 417 Wallwyu r. Coutts, 337 Wahuesley v. Booth, 644 Walpole V. Conway, 405 (Lord) r.' Orlbrd (Lord), 891 Walroud v. Rossi vn. 979, 1006 V. Walrond, 327, 942 Walsh V. Studdart, 1086 V. Trevannion, 50 V. Wason, 522 Walsham r. Stainton, 189 Walter v. Bartlett, 922 V. Hodge, 313, 545, 1078 V. IMaunde, 993 Waltess V. ISTorgan, 948 V. Nortliein Coal Mining Co., 798 Walwyu r. Coutts, 303, 308 Warburton v. Warburton, 423 Ward and Henry's case, 922 to the [•] pnge(<. ] Ward /;. Arch, 992, 997 V. Audland, 301, 315, 31:). 320. 334, 1206 V. Baugh, 406, 432 V. Beck, 931 r. Booth, 275, 288 V. National Bank of New Zea- land, 120 -v. Turner, 1058, 1077, 1078 V. Ward, 106, 228, 521 V. Yates, 521 Warden v. Jones, 346. 811, 1081 Warwick v. Warwick, 51 Warwicker v. Bretnall, 1026 Waterer r. Waterer, 231 Waterfall v. Penistone, 786 Waters v. Bailey, 56 V. Groom. 187, 188, 206 V. Taylor^ 196 V. Thorn, 200, 214 Watkins v. Cheek, 91 V. Flanagan, 135 V. Steevens, 334 V. Watkins, 532 Watkyns r. Watkyns, 489 Watson's (Miss) case, 608 Trust, Be, 1009 Watson V. Arundel, 1053 V. Brickwood, 739, 743 V. Cox, 956 V. Hayes, 1042 V. Knight, 307 V. Marshall, 523, 525 V. Parker, 333, 334, 342 r. Ro.se, 379, 393 V. Toone, 176, 197, 209 Watt V. Creke, 455 r. Grove, 189 r. Watt, 275 Watts V. lUillas, 275, 328 r. Kancie, 107 V. Porter, 711 V. Watts, 912, 913, 985 Iviii TABLE OF CASES. [The paging refers Waugh, In re, 572 Waugh V. Waddell, 572 V. "Wren, 127 ^Yav's Trusts, lie, 321, 323, 326 Weale i: Olive, 315 Weatherbv c. St. Giorgio, 81 Webb t'. De Beanvoisin, 750 V. Jones, 745 V. Lugar, 61 V. Rorke, 188 V. Shaftesbury (Earl of) 409 Webster v. British Empire Mutual Life Ass. Co., 804 V. Cook, 679, 684. 690, 691 V. Milford, 406 V. Rickards, Ixxv V. Webster, 896 Wedderburn v. Wedderburn, 197 Weeding v. Weeding, 1003 Weir ('. Chamley, 444 Welbeck Park, case of, 810 Welbourn (Rector of), In re, 983 Welby V. Rockcliffe, 749 V. Welby, 406. 410, 412, 417 Welchman, Be, 520 V. Coventry Union Bank, 785, 793 Weld (a lunatic). Lire, Ixxix r. Tew, 1015 Weldou V. Bradshaw, 748 V. De Bathe, 599, 605 V. Neale, 585 V. Riviere, 588, Ixxvi V. Winslow, 588 Wellesley v. Mornington (Earl of), 446, 457 V. Wellesley, 866, 867, 874, 943 Wellington v. Macintosh, 944 Wells v. Chelmsford Local Board of Health, 912 V. Price, 528 V. Row, 741 V. Stradling, 887 Wei man v. Wei man, 50, 52 Wentworth v. Lloyd. 190, 211 Wesley v. Walker, 956, 960 West V. Berney, 449, 462 r. Errissey, 6, 18, 23, 51, 403 V. Ray, 281 V. West, 315 (Sackville) v. Holmesdale (Vi.s- count), 20, 21, 24, 28, 34, 39, 44, 45, 47, 48 of England & South Wales Dis- trict Bank v. March, 102 Jewel Tin Mining Co., In re; Weston's case, 183 V. London Commercial Bank v. Re- liance Perm. Build. Soc. 704 to the [*] pages.] Western of Canada Oil Lands and Works Co., In re, 184 Westhead v. Riley, 712 Westmeath r. Salisbury, 942 (Earl of) V. Westmeath (Counte-ss of), 942, 943 Weston's case, 183, 268 Westzinthus, In re, 128 Wethered v. Wethered, 685 Wetherell, Ex parte, 775, 783 V. Wetherell, 420, 424 Whaley v. Baguel, 886 Bridge Calico Printing Co. V. Green, 186 Wharton, //(. re, 982, 1005, 1016 V. May, 685, 693 Whateley v. Kemp, 24 Wheate v. Hall, 45 Wheatley, In re; Smith v. Spence, 408, 434 V. Purr, 309 V. W^estminister Brymbo Coal and Coke Co., 933 Wheeler v. Carvl, 535 V. D'Esterre, 887, 901 V. Smith, 253 Wheelright v. Walker, 466 Wheldale v. Partridge, 975, 981, 989, 991, 1009 Whelpdale v. Cookson, 198, 214 Wherly, Re, 799, 805 Whichcote v. Branston, 679 r. Lawrence, 176, 211, 212 Whidborne v. Ecclesiastical Commis- sioners, 180 Whieldon v. Spode, 740, 748 W^histler v. Newman, 567 r. Webster, 391. 406, 410. 426 V. Whistler, 429 Whitbread, Ex parte, 779. 789, 791 V. Brockhurst, 886, 887 V. Jordon, 775, 783 V. Smith, 338 Whitchurch r. Bevis, 886, 897, 898 Whitcomb v. Minchin, 177, 189 W^hite V. Anderson, 50 V. Bohj, 941, 959 V. Briggfe, 35, 47 V. Cann, 861 V. Carter, 29 r. Cohen, 602 V. Herrick, 524, 527 V. Hussey, 334 V. St. Barbe, 449 V. Simmons, 799, 800, 805 f. Stringer, 340 v. Thornborough, 12 V. Wakefield, 384, 387 TABLE OF CASES. lix [The paging refers White V. Whito, .52, 63, 427, 740 AVliitchaven (Bank of) v. Dawson, 128 Whitfield (Incumbent of), Jn re, ynij (;. JJevvit, M3, 814, 8l«J, 836, 843, 8.32 V. Fausset, G47, G54 Wliiting ('. P,nrkc, 120 Wliitiitore r. Tiiniuand, 307 Whitley c. Whitley, 410, 411, 431 Whittaker, In re; Whittaker i;. Whit- taker, 313, 545 V. Jlowe, 942 V. Whittaker, 986 Whiltem r. Sawyer, 518 Whittle r. Kenning, 433, 527 Whitty's Trust, Ih, 20, 989 Whit wick ?,'. Jermin, 976 Wliit worth V. Gaiigain, 711, 792 AVich r. Parker, M.IO Wicherley's ease, 450 Wickens v. Townsend, 202 Wicks V. Hunt, 954 Wigg ('. Wigg, 357, 360 Wigglesworth r. Wigglesworth. 224 Wight's Mortgage Deed, Jn re, 784, 797 Devised Estate, In re, 982 Wight V. l.eigh, 20 Wight wick /•. Lord. 993 AVigsell V. School for Indigent IJlind, 939 Wilcocks V. Hannyngton, 310, 563 Wilcox I'. Gore, 621 Wild's case, 4, 6, 8, 23 Wild r. Milne, 197 Wilder v. Pigott, 433. 434. Ixxiv Wilding V Richards, 303, 30 1, 306, 308 Wilkes V. Bodington, 718 V. Holmes, 272 I'. Wilkes, 942, 943 Wilkie V. Holme. 279 Wilkins v. Fry, 794 Wilkinson's Mortgage Estates, In re, 2S3 Wilkinson r.'Charlesworth, 514 • v. Clements, 934 V. Dent, 411, 414, 415 V. Hartley, 95 r. Eloyd, 927 V. Nelson, 50 V. Schneider, 525 Wilks ?'. Davis, 944, 947 Willats r. Busby, 335 V. Cay, 524 Willesford r.'Watson, 945, 946, 247 Willeter i'. Dobie, 595 Williams, E.v parte, 329, 800 In re, 777, 792 V. Aylesbury and Bucking- liam Railway Co., 377, 983 to the [•] pages.] Williams v. Bolton (Duke of), 574, 876, S78 V. Callow, 531, 533 V. Carter, 44, 45 V. Day, 9 V. Evans, 785, 889, 890 V. Hughes, 749 V. Elandair (Bp. of), 744 V. M'Namara, 865 V. Massv, 111 I'. Mavne, 433, 434 V. Medlicot, 781, 788 V. Mercier, 590, 604 V. Owen, 127, 897 V. Snowdon, 959 V. Teale, 44 V. Thomas, 249 V. Tompson, 4 V. Trye, 195 V. Walker, 895 V. Williams, 255, 260, 263, 264, 6^3, 858, 867, 888, 893, 950, 1014 William's Estate, In re, 721 Williamson v. Codrington, 334 V. Curtis, 83 V. Gordon, 802 V. The Advocate General, 994 Willis V. Kymer, 551, 562 V. Willis, 247 Willock V. Noble, 562 Willoughby v. Brideoak, 683 V. Middleton, 416, 433 V. Willoughby, 703, 713 Willox V. Rhodes, 749 Wills V. Bourne, 746 V. Sayers, 550 r. Stradling, 887, 888, 889 Will way's Trusts, Be, 284 Wilmot V. Pike, 707, 718 Wilson, Ex parte, 139 Wilson V. Balfour, 783 r. Beddard, 981 • V. Church, 392 V. Coles, 992, 1045 V. Furncss Railway Co., 936, 937 V. Hart. 951 V. Keating, 3S4, 391, 921 V. Leslie, 110 V. Major, 1042, 1053 r. Moore, 110 V. Northampton and Bambury Junction Railway Co., 936, 938, 955 V. Piggott, 277, 465, 466 V. Sewell, 205 r. Thorubury, 431 Ix Wilson V. Townshencl, 409, 433 V. West Hartlepool Kailway Co., 887, 892, 901 V. Wilson, 50, 339, 418, 611, 94"2 943 Wilton r. Hill, '619 Winch r. James, 528 Winchelsea (Earl ofj v. Norcliffe,1018, 1019 Winchester (Bishop of) r. Knight, 871 Winchester (Bishop of) v. Mid-Hants Railway Co., 376, 377 Windham r. Richardson, 718 W^ing V. Tottenham, &c., Railway Co., 377 Wlnslow V. Tighe, 61, 63 Winter v. Anson (Lord), 376, 379, 387, 775 V. Winter, 301 Wintour v. Clifton, 405, 409, 411, 412, 431 Wise V. Piper, 45, 46 Wiseman v. Beake, 634, 655, 674, 676. 678 V. Carbouell, 801 Wither v. Dean and Chapter of Win- chester, 858 Withers v. Withers, 244, 245 Withy V. Cottle, 919, 921 Witt V. Amis, 1083, 1084 V. Corcoran, 945 Witter V. AVitter, 1018 Witts V. Dawkins, 610 W^olfe (Birch) v. Wolfe, 876 W^ollaston v. King, 417, 428 V. Tribe, 331 WoUen V. Tanner, 426 Wolterbeek v, Barrow, 50 Wolverhampton, e*cc., Co. v. Marston, 347 Wombwell v. Belasyse, 865, 868 Wood, E.c parte, 136 Wood's Estate, Be, 66, 67 W^jod's Settled Estate, Ee, 1009 Wood V. Abrey, 684, 693 V. Downes, 214 r. Gaynon, 861 V. Griffith, 948 V. Harm an, 83 V. Midgley, 898 V. Rowel iffe, 920, -964 V. Skelton, 1046 V. Wood, (iOO Woodford v. Charnley, 301, 315 Wood head v. Turner, 748 Woodhouse v. Meredith, 189 V. Shepley, 644 r. Walker, 861 Woodmau v. Morrell, 264 TABLE OF CASES. [The paging refers to the [*] pages.] Woodmeeston v. W^alke, 612, 613 Woodroflfe v. Allen, 679, 680 V. Johnston, 310 Woods V. Huntingford, 755, 756, 757 V. Hyde, 1003 Woodward v. Pratt, 525 V. W^oodward, 583 Woof V. Barron, 801 Woolam V. Hearn, 898, 900 Woolhouse (a lunatic), In re, Ixxix Woolmore v. Burrows, 33, 45, 47 Woolridge r. Woolridge, 429 Woolstencroft v. Woolstencroft, 763, 704 W^orcester City & County Banking Co. V. Blick, 250 Wordsworth v. Dayrell, 526, 581 Worman, In the goods of, 594 AVormsley's Estate, In re, 762 Worrall v. Jacob. 338 V. Marlar, 488, 4S9, 490, 491, 492, 519 Wortham r. Pemberton, 513 Worthington r. Curtis, 259, 264 V. Morgan, 387 V. Wiginton, 431 Wortley v. Birkhead, 701, 703, 717 Wray v. Steele, 244 Wray's Trusts, In re, 535 Wren v. Kirton, 177 Wright, Ex parte, 785 V. Atkyns, 872 V. Bell, 915, 918 V. Chard, 572, 574, 604 V. Goff, 449. 455 V. Hunter, 121 V. King, 523 V. Morley, 1.35, 532 V. Pearson, 19 V. Pitt, 798, 871 V. Rose, 999 V. Row, 1050 V. Rutter, 488, 524, 525 V. Stanlield. 797 V. Vanderplank, 212, 680, 694 V. Wright, 615, 616, 1045 Wrightson v. Macaulay, 979, 992 Wrigley r. Swainson, 483 V. Sykes, 100, 101 Wrout V. Dawes, 376, 384 Wyatt V. Cook. 693 Wvld's case, A, 6, 8, 23 Wyld V. Radford, 784, 791 Wyllie V. Pollen, 713 Wynn Hall Coal Co., In re, 776, 791 W\ynn's Devised Estates, Re, 283, 284 Wynne v. Price, 922 Wythe V. Henniker, 362, 386, 745, 752 Wythes v. Lee, 392, 393, 394 I TABLE OF CASES. Ixi [The paging refers to the [*] pages. ] Yai.I.OP, Ex parte, 245, 246 Yates V. I'hotliplace, 459 V. Yati's, !}!)3 Yelverton v. I^.atli, 870 Yem V. Edwards, 57 Yonye V. Fnrze, 75o, 769 V. Reynell, 126, 130 York Buildings Company '"■ Macken- zie, 189, 209, 210, 212 Union Banking Co. v. Artley, 801 V. Eaton, 222 Young, Lire; Trye v. Sullivan, l.\xiv Ex parte, 120 r. Macintosh, 24, 30, .36 V. Peachy, 252, 897 V. Waterpark, 466 V. Young, 702, 7:!9, 751 Ystalyfera Iron Co. v. Neath and Bre- con Railway Co., 985 ZoACH V. Lloyd, Zouch d. Forse v. 1019 Forse, 245 TABLE OP STATUES CITED. [The paging refers to the [•] pages.] PAGE 52 Hen. III. c. 29 (Stat, of Marlebridge— Real Actions) .... 839, 840, h54 6 Edw. I. c. 6 (Stat, of Gloucester— Real Actions) 817, 8W, 8.54 13 Edw. I. c. 1 (De Bonis) 4. 8, 647 4 Hen. VII. c . 24 (Stat, of Fines) 849 11 Hen. VII. c. 8 (Usury) 629, 665 c. 20 (Jointures) 24 27 Hen. VIII. c. 10 (Stat, of Uses) 433, 827 s. 10 433 32 Hen. VIII. c. 1 (Stat, of Wills) 418 c. 28 (Lease) 287 37 Hen. VIII. c. 9 (Usury) . .■ 640,641,649,656,658 13 Eliz. c. 5 (Fraudulent Conveyance) 267, 326, 340, 342, 347, 348, 349, 350, 351, 792, 1126, 1211, 1213, 1214 s. 6 342 s. 47 • 351 27 Eliz. c. 4 (Fraudulent Conveyance) 268, 326, 330, 334, .335, .3.39. 340, 342, 792, 1126, 1211, 1214 s. 3 .350 29 Eliz. c. 5 (Voluntary Settlement) 342 43 Eliz. c. 4 (Charitable Uses) 273, 274 21 Jac. I. c. 16 (Limitations) s. 7 , Ixxvi c. 17 (Usury) ' . . . . 628, 656 12 Car. II. c. 13 (Usury) 656 15 Car. 11. c. 17 (Bedford Level) 366 22 & 23 Car. II. c. 10 (Distributions) 424, 425 29 Car. II. c. 3 (Stat, of Frauds) 247, 248, 249, 254, 255, 267, 278, 287, 774. 884, 885, 886, 891, 892, 902, 903, 912, 1062, 1064, 1065, 1121, 1158, 1181, 1189 29 Car. II. c. 3, s. 4 773 s. 7 309, c45 s. 8 247, 249, 267 s. 13 • 245 ss. 19-22 1075 30 Car. IL c. 7 (Administration of Estates) 846 3 W. & M. c. 14 (Fraudulent Devises) 74 s. 7 105 4 & 5 W. & M. c. 24 (Administration of Estates') s. 12 ; 846 10 & 11 Will. III. c. 16 (Posthumous Child; Waste) . . 817 5 Anne, c. 3 (Duke of Marlborough's Act) 869 6 Anne, c. 2 (Irish Registry) 64 7 Anne, c. 16 (Wagers) 642 c. 20 (Midd. Registry) 784, 797 12 Anne, stat. 2. c. 16 ^Usury) 640,649, 656 7 Geo. II. c. 8 (Stock Jobbing) 642 9 Geo. II. c. 36 (Mortmain) 274, 385, 903, 904, 988, 1035, 1042, 1048, 1050, 1051, 1162, 1163, 1164, 1203 10 Geo. II. c. 8 (Stock Jobbing) 642 (Ixii) TABLE. OF STATUTES CITED. Ixiii [The paging refers to the [*] pages.] PACE 14 Geo. II. c. 20 (Common Recoveries) s. 9 24.'j 33 Geo. II. c. 14, Ir. (Deposit of Deeds by Banker) 793 14 Geo. III. c. 48 (Life Insurance) 265 2f) Geo. III. c. 60 (Ship Registry) O.'iO 34 Geo. III. c. 68 (Ship Registry) 930 36 Geo, III. c. 52 (Legacy Duty) 43.". s. 7 1087 39 & 40 Geo. IIL c. 56 (Entailed E.states) 1005 c. 98 (Thellussou Act) 1042,1043,1162 41 Geo. III. c. 109 (Inclosure) s. 2 207 45 Gdo. IIL c. 28 (Legacy Duty) 435 47Geo. III. c. 74 (Debtsof Trader.s) 88 49 Geo. III. c. 121 (Bankruptcy) s. 8 135 53 Geo. III. c. 141 (Inrolment of Grants of Annuities) 782 55 Geo. IIL c. 184 (Stamps) • 994 c. 192 (Wil) ■ 271, 419 3 Geo. IV. c. 92 (Memorials of Grant^ of Annuities) 782 4 Geo. IV. c. 41 (Ship Registry) 930 6 Geo. IV. c. 16 (Bankruptcy) s. .")2 135, 140 c. 110 (Sliip Registry) 930 7 Geo. IV. c. 45 (Entailed Estates) 1005 c. 57 (Insolvent Debtor-s) 342,1211 9 Geo. IV. c. 14 (Parol Contract) 894 c. 92 (Savings Bank) 246,1160 11 Geo. IV. & 1 Will. IV. c. 20 (Wills of Soldiers, &e.) 1075 e. 46 (Illusory Appointments) 465, 467, 468, 469, 1149 c. 47 (Fraudulent Devise) 74 s. 10 802 s. 11 802 c. 65 (Estate of Lunatic) 1010 1 Will. IV. c. 46 (Illusory Appointments) 465, 467, 468, 469, 1149 c. 47 (Fraudulent Devise) 88 3 & 4 Will. IV. c. 27 (Limitations) 64, 391, 879, 1219 ss. 2, 3, 4, 5 880 s. 36 859 s. 42 716, 722 c. 42 (Administration of Estate) s. 2 846 s. 3 716, 722 c. 55 (Ship Registry) 930 c. 74 (Fines and Recoveries), 24, 213, 564, 565. 566, 895, 1005, 1120, 1170 s. 16 24 s. 24 565 s. 34 565 s. 40 1005, Ixxiii s. 47 Ixxiii s. 71 . 1005, 1008 s. 77 ■ 1005 s. 79 566 s. 84 566 c. 104 (Simple Contract Debt) . . .88, 105, 386, 426, 721, 976 0.105 (Dower) 420,425,485,977 s. 4 425 Ixiv TABLE OF STATUTES CITED. [The paging refers to the [•] pages.] PAGE 3 & 4 Will. IV. c. 105 s. fi 425 s. 7 425 s. 9 425 s. 10 425 c. 106 (Inheritance) 417 4 & 5 Will. iV.c. 92 (Abolition of Fines and Recoveries, Ir.) 564 5 & 6 Will. IV. c. 54 (Marriage) 256 6 & 7 Will. IV. c. 32 (Building Society) 778 1 Vict. c. 26 (AVills Act), 271, 278,. 279, 290, 418, 902, 977, 1009, 1018, 1020, 1045, 1054, 1056, 1088, 1102, 1103, 1112, 1113, 1115, 1162, 1163 s. 2 1075 ss. 3, 4, 5 ,271 s. 6 245 s. 7 418 s. 9 279, 290 s. 10 .- 279, 290 ss. 11, 12 1075 ■ s. 24 419, 977, Ixxv s. 33 1056 1 & 2 Vict. c. 42 (Crown Lands) 57 c. 110 (Judgments), 342, 348, 584, 708, 711, 715, 720, 792, 1194, 1195, 1213 s. 11 .... 584, 709 s. 12 342 7 tSi 8 Vict. c. 76 (Transfer of Real Property) 78 s. 8 . 33 s. 10 78 c. 97 (Charitable Donations and Bequests, Ireland) . . 1042, 1162 c. 110 (Joint Stock Companies) 187 s. 29 186, 187 8 Vict. c. 16 (Companies Clauses. 1845) ss. 14-20 315 8 & 9 Vict. c. 18 (Lands Clauses, 1845) . 378, 912, 982, 1110, 1121, 1181, 1202 s. 7 564, 1006 s. 8 207 s. 9 207, Ixxviii s. 10 378 s. 11 378 s. 69 V . 1009 s. 73 57 s. 85 . . " 376, 378 c. 20 (Railway Clauses, 1845) s. 76 952 s. 92 952 c. 76 (Legacy Duty) 1087 s. 4 1088 c. 89 (Ship Registry) s. 34 930, 932 s. 37 930 c. 106 (Law of Property Amendment Act) 33, 78 s. 8 853 c. 112 (Satisfied Terms) 718 c. 118 (Commons Inclosure) s. 219 207, Ixxviii 10 & 11 Vict. c. 96 (Trustee Relief) 52, 95 12 & 13 Vict. c. 26 (Lease) 288 s. 3 288 s. 7 288 TABLE OF STATUTES CITED. Ixv [The paging refers to the [•] pages. ] PAGE 12 & 13 Vict. c. 20 s. 9 288 c. 74 (Trustee Relief) 95 c. 106 (Bankruptcy, 1849) .198 .s. 12(i 351 s. 173 135 <■. 110 (Lease) 288 l:? & 14 Vict. c. 17 (Lease) ... 288 l:!.^' 14 Vict. c. 17, s. 2 . . . . : 289 s. 4 288 c. 60 (Trustee Act, 1850) 803,985 s. 30 P60 c. 97 (Stamps) 989 14 & 15 Vict. c. 99 (Law of Evidence Amendment) 583,1173 15 Jt 10 Vict. c. 55 (Trustee Act, 1852) s. 1 803 c. 86 (Mortgage) s. 48 800 16 & 17 Vict. c. 51 (Succession Duty) 436,997,1107 ^ o 436 s! 29' .■.'.' ^ ■ ' 995 s. 30 982 c. 70 (Lunacy Act, 1853) 1016, 1M7, 1108, Ixxix s. 119. 1016, 1017 s 104 1016. Ixxix s! 131 ■.■.■■.■' ■ • 1016 s 130 1016 s. 135 ; ; '. ■. 1016, 1017 c. 83 (Evidence) 583 17 & 18 Vict. c. 36 (Bills of Sale, 1854) 778. 786, 787, 788, 11,25 c. 90 (Usury) 640, 656, 664, 686, 782 c. 104 (Merchant Shipping Act, 1854) 246,930.931,932 s. 3 931 s. 37 (2) 246 c. 113 (Locke King's Act— Mortgage), 392, 750, 751, 761, 762, 763, 764, 765, 769, 770, 771, 986, 1104, 1141, 1143, 1144, 1204 s. 1 , 762, 765, 769 g 2 '765 c. 125 (Common Law Procedure, 1854), 332, 944, 960, 1099, 1186, 1188 s. 11 945 s 17 950 s.'78 ." .■ ■ 966 s. 70 859 H & 19 Vict. c. 15 (Judgments! 386 V 12 ■ "82 c. 43 (infants' Settlements) 483, 528 l!) & 20 Vict. c. 97 (Mercantile Law Amendment, 1856) . . . 133, 134, 1157 s. 5 134 c. 120 (Leases and Sales of Settled Estates), 48, 95, 283, 878, 893, 982, 1009, 1109, 1154 s 13 283 ss. 23-25 :;:;;;;; 1023 s. 35 288 20 & 21 Vict. c. 57 (Malins Act— Married Women), 433, 434, 515, 527, 528, 1129, 1130, 1132 c. 60 (Bankruptcy, Ireland, 1857) 798 5 WHITE ON EQUITY. " Ixvi TABLE OF STATUTES CITED. [The paging refers to the [*] pages.] PAGE 20 & 21 Vict. c. 85 (Divorce and Matrimonial Causes), 521, 543, 5.52, 1166, 1167. 1177 s. 2 596 s. 21 553, 603 s. 25 521, 553. Ixxv s. 26 554, 603 s. 45 566 21 & 22 Vict. c. 27 (Lord Cairns' Act— Chancery Amendment), 934, 953, 955, 956, 937, 959, 1188, 1189 s. 2 93 ss. 2-6 : 95 c. 77 (Leases and Sales of Settled Estates) . . 48, 878, 982, 1009 c. 108 (Married Women's Property) 543, 1167 c. 108, s. 6 ' 554 s. 7 554 s. 9 554 s. 10 554- 22&23 Vict. c. 35( Property and Trustees' Kelief Amendment), 78, 102, 282,1098 s. 12 290 s. 13 283 s. 14 103 s. 15 103 s. 16 103, 104 s. 17 103 s. 18 104 s. 23 78 23 Vie. c. 28 (Wagers) 642 23 & 24 Vict. c. 106 (Lands Clau.ses, 1860) 1025 s. 69 1024 c. 124 (Episcopal and Capitular Estates) 65, 67, 1101 c. 127 (Married Woman) 607 s. 28 607 c. 145 (Mortgage, Trustees) 48, 78, 1094, 1138, 1155 s. 11 108 ss. 11-30 48 s. 29 78, 79 s. 34 79 c. 153 (Landed Property, Ireland. Improvement, 1860), 893, 1154 24 & 25 Vict. c. 161 (Statute Law Revision) 640, 665, 686 c. 114 (Will, Probate) 279 c. 134 (Bankruptcy, 1881) 1128 s. 110 804, 11^8 s. 192 199, 308 s. 194 308 25&26 Vict. c. 42 (Rolfs Act) 957 c. 53 (Land Registry) 1122 s. 63 779 s. 73 779 c. 63 (Merchant Shipping Act, 1854, Amendment), . . . 246, 931 c. 86 (Lunatic) s. 12 1018 8. 13 . 1018 c. 87 (Industrial and Provident Societies) 1122.1199 c. 89 (Companies, 1862) , 187 s. 43 776 s. 57 187 s. 165 182, 184, 187 c. 108 (Confirmation of Sales) 283 TA15LE OF STATUTES CITED. Ixvii [Tho paginfi refers to the ['1 pages. ] ) PAQF. 2r> Si 2r, Vict. 0. 4:2 83. 1, 2, 3 2H:i s. o 284 20 & 27 Vict. c. 125 (Stutute Law He-vision, im:i) fioG, 839, 84H 27 & 28 Vict. c. 45 (Leases and Sales ol Settled Instates) . . 48, 878, 9«2, 1909 c. 112 (Judgment) 711 1194 s. 8 716 :!() iS: 31 Vict. c. 29 (Joint Stock Bank) s. 1 929 c. 48 (Sale of Land by Auction) 1200 s. 7 208 c. 59 (Statute Law Revision, 1867) 642,656.841) c. 69 (Real Estate Charges) 258, 392, 751, 762, 764, 765, 766, 769, 986. 1143, 1204 c. 144 (Insurance) 324 31 & 32 Vict. c. 4, (Sales of Reversions) .... 679, 680, 684, 687, 1096, 1098 si 687, 688 s. 2 687 c. 86 (Marine Insurance) 324 c. 40 (Partition Act, 1869) s. 8 1023, 1109 32 & 33 Vict. c. 38 (Bankruptcy Repeal, 1869) ss. 2-20 351 c. 42 (Irish Church Act, 1869) 68, 1025, 1110 c. 46 (Debt) 135, 594, 721, 772 c. 68 (Evidence), si 583 c. 71 (Bankruptcy, 1869) 135, 798, 805, 1122 s. 15. . ." 776 sub-s. 5 776 s. 22 324 s. 49 186 s. 65 -.800 s 72 800 s. 91 346, 351, 352, 1214 c. 83 (Bankruptcy Repeal) 199 s. 20 308 33 & 34 Vict c. 14 (Naturalization, 1870) 526, 987, 1104 c. 23 (Abolition of Forfeiture for Felony) 988 s. 1 982 s. 10 988 c. 93 (Married Women's Property, 1870), 485, 523. 544,555, .556, 577. 579, 590, 592, 595, 597, 605, 1145, 1167, 1172, 117.5, 1176, 1178 si 509, 555 s. 2 556 s. 3 485, ,5.56 s. 4 485, 556 s. 5 485, ,556 s. 6 556 s 7 509, .556 s. 8 509, 5.55 s. 9 594 s. 10 556 s 11 603, 604 s. 12 590 s. 13 577 s. 14 577 c. 97 (Stamps) liViii TABLE OF STATUTES CITED. [The pairing refers to the [•] pages.] PAGE 33 & 34 Tiet. C. 47 s. 105 781 c. 102 Naturalization) 526, 988, 1105 35 & 36 Vict. c. 39 (Naturalization) . . . 526,988 c. 63 (Statute Law Revision, 1872) 839 36 & 37 Vict. c. 66 (Judieature Act, 1873), 529, 602, 896, 933, 1113, 1121, 1177, 1194 s. . :}(i ft78, 1028 s. 50 619 s. 58 288 c. 33 (Contingent Remainders) 33, 853, 854 s. 1 '. . . . 33, 854 c. 34 (Mortgage) . . .392,751,703,765,987,1104,1143,1204 s. 1 7(J5 41 & 42 Vict. c. 31 (Bills of Sale, 1878) 788 s. 23 778 42&43 Vict. c. 78 (Settled Estates) 982,1009 44 & 45 Vict. c. 12 (Stamp Duties) s. 38 1087 c. 41 (Conveyancing and Law of Projx^rty, 1881) . . . 391. 545, 581, '701, 857, 966, 982, 987, 1009, 1150, 1165, 1170, 121« s. 2 987 s. 3 987 s. 4 386, 960 s. 9 966 s. 19 108, 861 sub-s. 4 . ■. • . . 861 .s. 25 : 800, 802 44 & 45 Vict. c. 41, s. 30 386 s. 36, sub-s. 1 79 sub-s. 2 79 s. 39 . . .' 619 s. 42, sub-s. 2 85H sub-ss. 3-8 858 s. 50 545, 581 s. 55 391 s. 61 224 s. 65, sub-s. 2 567 s. 71 79, 108 sub-ss. 1,2 • 48 s. 73 701 45 & 46 Vict. c. 38 (Settled Land, 1882) . . 43, 284, 466, 855, 982, 1009, 1094. 1103, 1148, 1149, 1155, 1170, 1215 s. 2, sub-s. 5 49 sub-s. 10 l.xxiii ss. 6-11 856 s. 12 286 s. 17 284 ss. 21-24 984 ss. 25-30 984 '' s. 28 856, 861, 1217 sub-s. 2 855 s 29 856, 862 s. 32 984 s. 35, sub-s. 1 877 sub-s. 2 877 s. 37 43 sub-ss. 1, 2, 3 43 s. 40 79 s. 53 466 s. 56 104, 1094 ss. 58, 59, 60, 61, 62 49 s. 61 567 s. 63 104, 1094 s. 64 48 IxX TABLE OF STATUTES CITED. [The paging refers to the [*] pages.] PAGE 45 & 46 Yict. c. 39 (Conveyancing Act, 1882) 1203 s. 3 388 s. 7 566 c. 43 (Bills of Sale Act, 1878; Amendment, 1882) . 778, 788, 1125 (f. 52 (Bankruptcy Act, 1883) s. 45 721 c. 75 (Married Women's Property Act, 1882) . 258, 485, 509, 523, 531, 544, 554, 556, 557, 570, 583, 588, 592, 595, 597, 598, 599, 788. 894, 1111, 1129, 1131, 1133. 1145, 1166, 1168, 1169, 1170, 1172, 1173, 1174, 1176, 117^. 1180. 1197 s. 1 313, 509, 531, 558 sub-s. 1 556, Ixxv sub-ss. 1-5 552 sub-s. 2 575, 587, 588, Ixxv sub-s. 3 588, 589, Ixxv sub-s. 4 565, 587, 589, 617, Ixxv sub-s. 5 579 s. 2 509, 557, 566 s. 3 583, 1175, Ixxv s. 4 570, 1175 s. 5 509, 515, 558. 566, 618 s. 6 556, 559 s. 7 556, 559 c. 75, s. 8 556, 560 s. 9 556, 560 s. 10 561 s. 11 561 s. 12 . . . . 531, 605, Ixxv s. 13 593, Ixxv s. 14 593 s 15 594 s. 16 . .' 594 s. 17 560, 594 s. 19 612, 618 s. 20 577 s. 21 258, 577 s. 22 . . s 485, 604 s. 23 595, 597 s. 24 576 46 & 47 Vict. c. 39 (Statute Law Revision, 1883) 982 c. 49 (Statute Law Revision, 1883) 957 s. 5 957 c. 52 (Bankruptcy, 1883) . . 135, 139, 351, 794, 798, 1122, 1157 s. 30 186 s. 37 186 sub-s. 3 136, 140 s. 44 (iii) 776 s. 47 251, 1214 sub-s. 2 352 s. 93 800 s. 120 800 s. 125 772 47 & 48 Vict. c. 14 (Married AVomen's Property, 1884) 544. 583 s. 1 583 s. 2 544 c. 18 (Settled Land, 1884) s. 6 . 104 TABLE OF STATUTES CITED. Ixxi [The paging refers to the ['] patces.] PAGK 47 & 48 Vict. c. 18 s. 7 104 s. 8 598 c. 54 (Yorkshire Registries, 1884) 388, 784, 797, 1127, 1192, Ixxvii s. 7 388, 797, Ixxviii c. 61 (Judicature Act, 1884) ss. 9-12 950 s. 14 101 c. 71 (Intestates' Estate. 1884) 1103, 11G2 s. 4 ' 9^^2, 1045 48 Vict. c. 4 (Yorkshire T^efiistries) Ixxvii, Ixxviii 48 & 49 Vict. c. 2(j (Yorkshire Registries) Ixxvii, Ixxviii (Ixxii) LEADING CASES IN EQUITY. LORD GLENORCHY v. BOSWELL. De Term. S. Mich. 1733. [reported CAS. TEMP. TALBOT, 3.] Executed and Executory Trusts.] — A. devises real estate to his sister B. and C, and their heirs and assigns, upon trusts, until his grand daughter D. should marry or die, to receive the profits, and thereout to pay her £100 a year for her maintenance ; the residue io pay debts and legacies; and after payment thereof, in trust for the said D. ; and ujjoji further trust, that, if she lived to marry a Protestant of the Church of England, and at the time of such marriage be at the age of twenty -one or upwards, or, if tinder that age, such marriage be with the consent of the said B., then to con- vey the said estate, with all convenient sijeed after such marriage to the use of the said D. for life, without impeachment of waste, voluntary waste in houses excepted; remainder to her husband for life ; remainder to the issue of her body ; with remainders over : — Held, that though D. would have taken an estate tail had it been tlie case of an immediate devise, yet that the trust being executory, tvas to be executed in a more careful and more accurate manner ; and that a conveyance to D. for life, remainder to her husband for life, 7vith remainder to their first and every other son until remainder to the daughters, would best serve the testator^s intent. Sir Thomas Pershall devises all his real estate to his sister, Anne Pershall, and Robert Bosville, and their * heirs and as- [ * 2 ] signs, upon trust, till his grand-daughter, Arabella Pershall, marry or die, to receive the rents and profits thereof, and out of it to pay her 100^. a year for her maintenance; and, as to the residue to pay his debts and legacies; and, after the payment thereof, then in trust for his said grand -daughter; and upon further trust, that • 73 * 3 LORD GLENORCUY V. BOSVILLE. if she lived to marry a Protestant of the Church of England, and at the time of such marriage be of the age of twenty-one or up- wards, or if under the age of twenty-one, and such marriage be with the consent of her aunt the said Anne Pershall, then to convey the said estate with all convenient speed after such marriage, to the use of the said Arabella for her life, ivithoid imjyeachment of waste, voluntary ivaste in houses excepted; remainder, after her death, to her husband for life; remainder to the issue of her body; with several remainders over; and, upon further trust, that if the said Ara- bella Pershall die unmarried, then to the use of the said Anne Pershall for life; remainder . to the son of his other grand- daughter, Frances Ireland, in tail; remainder to IVIr. Bosville, the defendant, for life; remainder to his first and other sons; remain- der to the testator's right heirs; and, upon further trust, if his grand-daughter marry not according to the directions of his will, then, upon such marriage, to convey the said estate to trustees; as to one moiety thereof, to the use of the said Arabella for life; re- mainder to trustees to preserve contingent remainders; remainder to her first and every other son, being a Protestant; with several remainders over, and, as to the other moiety, to his daughter Ire- land's son, in like manner. Sir Thomas Pershall died in the year 1722, and Mrs. Arabella Pershall in 1723 attained her full age; and upon a treaty of mar- riage in 1729, she applies to the trustees for a conveyance of the estate to herself for life; remainder to her intended husband for life; remainder to the issue of her body; and such conveyance was executed by one of the trustees. But Mr. Bosville, the other trustee, who was also a remainderman, refused to convey. However, [ * 3 ] she having by this conveyance a legal estate tail in * one moiety, and an equitable estate tail in the other moiety, suffered a recovery to the use of herself in fee, and in 1730 married the plaintiff, the Lord Glenorchy, who made a considerable settle- ment upon her; and as to her own- estate she covenanted to settle it upon the Lord Glenorchy and herself for life; remainder to the first and every other son of the marriage, in tail male; and, upon failure of such issue, to the survivor of the said husband and wife, in fee. Argument for the plaintiffs. — The bill was, to have a conveyance of the moiety of the said trust estate from Mr. Bosville to such uses as are limited in the said covenant; and the principal question was, 74 * LORD GLENORCHY V. BOSVILLE, * 4 whether, under the Kuid will, the Lady Glenorchy was a tenant for life or in tail? upon which two other questions arose, viz., first, whether the w^ords in the will, in an immediate devise of a legal estate would have carried an estate tail ? secondly, if so, whether the Court will make any difference between a legal title and a trust estate executory? [^Lord Chancellor King. —I should upon the first question make no difficulty of determining it an estate tail, had this been an im- mediate devise; but when you apply to this court for the carrying a trust estate into execution, the doubt is, whether we shall not vaiy from the rules of law to follow the testator's intent; which will also bring on another question, — What is the testator's intent in the present case?] Upon the second question, it was argued for the plaintiffs, that the Lady Glenorchy was, under this will, entitled to an estate tail in equity; for this Court puts the same construction upon limita- tions of trusts in equity as the law does upon legal estates, and that to prevent confusion. This doctrine is laid down with the strong- est reasons by the Earl of NotUngham in the Duke of NorfoUc's case (a); and the authority of Baile v. Coleman, 2 Vern. G70 (6), where a trust to one for life, remainder to the heirs male of his body, is held an estate tail, has never yet been questioned. So it is held in Legatt v. Seivell, 2 Vern. 551 (but more fully reported in 1 Abr. Eq. Ca, *394) (c). where money was given to be laid [ * -4 ] out in land to one for life, and after his decease to his heirs male, and the heirs male of the body of every such heir male, severally and successively one after another; and a case being made for the opinion of the judges as of a legal estate, they certified it to be an estate tail. So, in the case of Bagshaw v. Doicnes, or Bagshaio v. Spencer, at the Rolls, Hil. 6 Geo. 2 (d), an executory trust was directed to the judges for their opinion as a legal estate. Upon the same reason do cestuis que trust levy fines and suffer re- coveries, which are held good in this Court. Indeed, in marriage articles, if they covenant to settle to the husband for life, remainder to the heirs of their two bodies, this Court will decree a conveyance in strict settlement, if any of the parties apply here, because the children are looked upon as purchasers. But in a will it is other- («) 3 ChrCaTsG-^TrandTSvvan.^t. 454. [h) S. C, 1 P. Wms. 142; 1 Ves. 151. (c) S. C, 1 P. Wilis. 87; see 2 Ves. 657. {d) Bagshaw v. Si)encer, 2Atk. 246, 57P; on appeal. Id. 577. 75 * 5 LORD GLENORCHY V. BOSVILLE. ■wise; they take through the bounty of the testator, and in such words as he gives it. It was further insisted for the plaintifPs, that the words issue of her body would make a difference from all other cases; for, in the Statute de Donis (13 Ed. 1) which created entails, it is said to be a proper word for that purpose, and is used no less than ten times in that statute; for this the authority of King v. Melling, 1 Vent. 214, 225 (e), and the reason ^there given cannot be contested, which is also an authority in the principal case; for there it is held, that a devise to one for life, with a power to make a jointure, is much stronger to shew the intent of the testator than the words ivithout impeachment of waste. To A. for life, remainder to the issue of her body, and, for want of such issue, remainder over, was held an estate tail in the Court of Exchequer, in the case of Williams v. Tompson, about three or four years ago. Anders. 80. To one for life, remainder to the children of his body, is an entail. So in Wild's Case, 6 Co. 16 (L. Cas. E. Prop. 581, 2nd ed.), and Sweet^ apple V. Bindon, 2 Vern. 536. It was further argued, that, if the remainder in this case to the issue be construed to be words of purchase, they must be [ * 5] attended with the greatest absurdity; for in *what manner can the issue take? All the sons, daughters, and grand- children are issue; and if they take as purchasers, they must be joint-tenants, or tenants in common, and that for life only (/), 2 Vern. 545; which construction can never be agreeable to the testa- tor's intent; and whatever estate was given in the first part of the will, yet the words, "awd for ivant of such issue, then, &c., will give the plaintiff an estate tail, according to the cases of Langley V. Baldwin, and Shaw and Weigh, 1 Abr. Eq. Ca. 184, 185, Fitzg. 7. It was also further urged, that, from the face of the whole will, and by comparing this clause with the other, it appears that the testator intended the plaintiff, the Lady Glenorchy, should take an estate tail, and that the several clauses in a will are to be taken to- gether, and make but one conveyance; and that it was a proper argument to prove the intention of the party from the different penning of the several clauses. The person who drew the will knew how to convey, either by words of limitation or purchase, where there was occasion for it; for where he limits the estate to (e) S. C. 2 Lev. 58, 61. (/) Cook V. Cook. 76 LORD GLENORCUY V. BOSVILLE. * G Mrs. Ireland, it is in strict settlement by proper words of purchase; and so where he limits it to the Lady Glenorchy, in case she had married a Papist. But further, to shew he well understood the doctrine of conveyances, when he limits by words of purchase to sons not in esse, he has put in trustees to preserve contingent remainders, which he would certainly have done in this case had he intended the Lady Glenorchy an estate for life only. Argument for the 'defendant. — For the defendant, it was argued, that though in the construction of wills in this Court, uses and trusts are to be governed by the same rules as legal estates, and that there is but little difference between uses and trusts executed and legal es- tates; yet trusts executory are by no means under the same consid- eration. In the cases of Legatt v. Seivell and Bade v. Coleman, the Judges were divided in their opinions, and since that time there is an express authority for the defendant. In the case of Papil- lon v. Voice, Hil. 5 Geo. 2 {g) ; so likewise in the *case of the [ * 6 ] Attorney -General v. Young, in the Court of Exchequer; and the case of Leonard v. Earl of Sussex, 2 Veru. 520; as also in the case of Bramston v. Kinaston, heard at the Rolls in June, 1728, where an estate was given by the testator to be settled upon his grandchild for her life, remainder to the issue of her body; and, when she applied to have an estate tail conveyed to her, she was de- creed an estate for life only. And to show that this Court is not tied up to the rules of law in cases of executory trusts, the case of the Ea7'l of Stamford v. Sir John Hobart, concerning Serjeant May- nard's will, was cited, where an estate was given to trustees to con- vey one moiety to Sir John Hobai't, for ninety-nine years, in case he should so long live, with several remainders over; and this Court decreed the Master should settle the conveyance according to the letter of the will; but upon exceptions to the Master's* Report, Nov. 19, 1709, it was ordered that proper estates should be made to sup- port the remainders, that the testator's intent might not be frus- trated; and this resolution was affirmed in the House of Lords (h). So in all matters executory, this Court endeavours to find the intent of the parties, and lets it prevail against the rules of law. In mar- riage settlements it was never doubted but that this Court would carry any words into strict settlement, if the intent of the' parties was such; and so held in the case of West v. Erisey, in the House {g) 2 P. Wms. 471. {h) 3 Bro. P. C. 31, Toml. ed., 3()th Mar. 1710. 77 * 7 LORD GLENORCHY V. BOSVILLE. of Lords (?■); and in that of Trevor v. Trevor, 1 Abr. Eq. Ca. 387 (A;); and the same rules will prevail in cases executory, whether wills or articles. Besides, the present case is very much like that of mar- riage articles. The testator had all along the marriage of his grand- daughter in view, and intended this will as no more than heads or directions for the trustees in what manner he would have it settled: and so it remains to be carried into execution by the aid of this Court. Then as to the word issue, it is sometimes a word of limitation, sometimes of purchase. There is a case mentioned in Wild's Case, 6 Co. 16, where to one and his children is held to be an estate [ *7 ] tail; yet had it been to * one for life, remainder to his chil- dren, there can be no doubt but that it had been a bare estate for life. And as to the objection, that the issue, if purchasers, are to take jointly and for life only, why shall it not be as in cases where the limitation is to the first and every other son, and wherever heirs of the body are held to be words of purchase, they are construed to the first and every other son? To make an estate tail arise by implication upon the words " and for xvant of such issue,'^ has been cited the case of Langley v. Bald- win, 1 Abr. Eq. Ca. 185. But there is the case of Bamfield v. Pojy- ham, 2 Vern. 427, 449, for the defendant, so the case of Loddington V. Kime, 3 Lev. 431, and that of Backhouse v. Wells, 1 Abr. Eq. Ca. 184'; besides, it is a general rule, that where an estate is to be raised by implication, it must be a necessary and inevitable implication, and such as that the words can have no other construction whatso- ever; and in the present case, there is the word "issue" mentioned before; so that these last words must relate to the issue before men- tioned. Whereas in the case of Langley v. Baldwin, the limitation is to six sons only; then come the words " and for want of issue,'' which words could not have relation to anything before mentioned. Lord Chancellor Talbot had taken time to advise, and to have the opinion of the judges upon this case: And the same coming now again to be argued upon the same points that had been before the late Lord Chancellor (Lord King). Argument for the plaintiffs. — It was insisted by the plaintifF's (i) 1 Bro. P. C. 225. Toml. eel., overruling the decision of the Barons of the Exchequer, reported 2 P. Wins. 349. v {k) S. C, 1 P. Wms. 622; 5 Bro. P. C. 122, Toml. ed. 78 LORD QLENORCIIY V. BOSVILLE. *8 counsel, that the Lady Glenorchy's marryiug a Protestant of the Church of England at or after the age of twenty-one, or, if under that ago, marrying such an one with her aunt's, or incase she was dead, with the other trusteos' consent, w'as a condition precedent; which, when performed, would give hor an estate tail. That this intent appeared from the different penning of the several clauses in this will; for it provides, in case she should not marry such a person as is before described, that she should have but a moiety for * life, and trustees are appointed to preserve contingent ro- [ * 8 ] mainders; none of which are injoined in case she should marry a Protestant of the Church of England; which shows a differ- ence was intended in case of performance and non-performance of the condition. Then considering it as a legal devise, no doubt but that a devise to one and the issue of his body will make an estate tail; and so it was held in the case of King v. Melling, 1 Vent. 214, 225, notwithstanding the proviso there, empowering the devisee to make a jointure; so if in this case the land itself had been devised to the Lady Glenorchy, it would have made an entail at law; and there is no difference between an entail of a legal es- tate and of an equitable one. TF^7d's Case, 6 Co. 16, devise to a man and his children, who had then two children alive, the devisee took but for life; but in King v. Melling, 1 Vent. 214, 225, Lord Hale said, that had there been no children living, in that case of Wild, it would have been an estate tail; though "children" be not 80 strong a word as "issue"; which in many statutes, particularly the Statute de Donis (13 Edw. 1), takes in all the children. In Shellei/s Case, 1 Co. 88 b (L. Cas. R. Prop. 507, 2nd ed.), it is said, that if there be a gift to one for life, be it by deed or will, and afterwards comes a gift to the heirs of his body, it is an entail; otherwise indeed, if the limitation be to the heirs male of such heir male, as in Archer'' s Case, 1 Co. 66; there it would make but an estate for life, because the limitation thei'e is grafted upon the word "heirs." So, in the case of Backhouse v. Wells, m B. R. 1712, 1 Abr.Eq. Ca. 184, the devisee took but for life, the limitation being there grafted upon the word "issue;" which for that reason was taken to be only a description of the person in that case; but in Cosen's Case, Owen, 29, and in Langley v. Baldicin, 1 Abr. Eq. Ca. 185, the estate tail was raised by implication; which shews that an estate tail may pass not only by express words but by impli- cation also. In Ki7ig v. Melling, the Lord Hale said upon Wild's 79 * 10 LORD GLENORCHY V. BOSVILLK. Case, " That had it been to the children of the body, it would have passed an entail;" and yet none of those cases seem so [ * 9 ] * strong as the present. So in the ease of Cook v. Cook, 2 Vei-n. 545, it is said, " That a devise to one and his children, if there be no children living, will be an estate tail." The exception of waste is next to be considered; and had it not been for that, this would clearly have passed an entail; but this exception varies not the case, for here the estates must disjoin ac- cording to Lewis Bowles's Case, 11 Co. 79 b (L. Cas. R. Prop. 37, 3rd ed.), to let in the husband's estate, which must intervene be- tween her estate and that of her issue; and the power of commit- ting waste [voluntary ivaste in houses excepted) was given only to make her dispunishable of waste during the time she should be tenant for life only; which she must be until her husband's death, by reason of the remainder to him, but not at all to restrain the es- tate, which the words of the will give her, which is plainly an es- tate tail. The adding the words, "^uiithout impeachment of waste,^^ can alter nothing; for if she was tenant in tail, she had already in her that power which these words would give her; and the express- ing the power which was already in her could no more abridge her estate (according to the maxim of Expressio eorum quce tacith in- sunt nil operatur) than the power of making the jointure did in King and Melling^s Case. In Langley v. Baldwin there were the same words as here; and in that of Shatv and Weigh, or Sparroiv v. Shaiv {l),l Abr. Eq. Ca. 184, which went up to the House of Lords, the prohibition went not only to voluntary but to all manner of waste, and yet there it was decreed to be an estate tail; which was a much stronger implication to make the sister to be but tenant for life than any in the present case. And in Baile v. Coleman, 2 Vern. 670, an estate tail was decreed by the Lord Harcourt, not- withstanding the power of leasing given to Christopher Baile. Nor can the other words voluntary waste in houses excepted, carry the implication further than the former; since this Court will often re- strain a tenant for life without impeachment of waste, from com- mitting waste, notwithstanding his power, as was declared [ * 10 ] by the Earl of Nottingham in Williams v. Day, * 2 Ch. Ca. 32, who there said, that he would stop the pulling down of houses or defacing a seat by tenant in tail after possibility of issue extinct, or by tenant for life, though dispunishable of waste by ex- (?) 3 Bro. P. C. 120, Toml. ed. 80 LORD GLENORCIIY V. BOSVILLE. * 1 1 press grant or by trust; and the like has been since done in the case of Vane v. Lord Barnard., 2 Yern. 733. By comparing this with the other clauses of this will, it appears plainly that the testa- tor did not intend the Lady Glenorchy a less estate than to the other devisees; but that his design was to prefer her and her issue to that of Mrs. Frances Ireland, though Frances was dead at the time of the will; and that lier son, who could expect no more fa- vour than his mother could, had she been living, should not have an immediate estate tail, and so a greater estate than she who was in- tended to be most preferred. It is plain the testator well knew the difference between giving an estate for life and an estate tail, by the different wording of the clauses of this will. In that, whereby he devises the remainder to Mr. Bosville, these words are purposely omitted; and in others he gives the Lady Glenorchy several es- tates, according to her marrying such or such persons, Protestants or Papists; and, consequently, he must be thought to have intended her a greater estate upon her performing than upon her not per- forming the condition. If, therefore, these words would create an estate tail at law, the construction will be the same here, since a Court of equity ought Hot to go further than the Courts of law; as was held by Lord Coicper in the case of Legatt v. Seivell, 2 .Vern. 551, 1 Abr. Eq. Ca. 394, and was also held by Lord Harcourt in the case of Baile v. Coleman, 2 Vern. 670, where he takes a differ- ence between cases arising upon wills and cases arising upon marriage articles, where the persons being all purchasers, the agreement is to be carried into stricter execution than in the case of a Avill, where, the parties being but volunteers, the words must be taken as you find them. The same is held totidem verbis in the case of Sweeiapple v. Bindon, 2 Vern. 536, where it is said, " That in a devise, all being volunteers, the devisee's estate is not to be restrained, nor is there any argument to be * drawn [ * 11 ] from this being an executory trust, since the case of Baile V. Coleman was such, and looked upon as such by the Lords Coiv- per and Harcourt; and the case of Leonard v. Earl of Stissex, 2 Vern. 526, is widely different from ours, for there was an express injunction that it should be settled in such manner as that the sons should never have it in their power to bar the issue. Argument for the defendant. — It was argued for the defendant by Mr. Attorney -General, Mr. Fen? ei/, and Mr. Fazakerley, that the L^dy Glenorchy could take but an estate for life; and they took a 6 WHITE ON EQUITY. . 81 * 12 LORD GLENORCHY V. BOSVILLE. difiPerence between the present case, being of an executory trust, and those of Cosen's, and of Cook v. Cook, which were legal estates and executed. The resolution in Sondaifs Case, 9 Co. 127 b (which was likewise of a legal estate) was chiefly founded upon the proviso, restraining the son or his issue from aliening, which made the argument that ho was intended by the testator to be tenant in tail, since, if he had been but tenant for life, the restraint had been vain add needless. In the case of Langley v. Baldivin, an estate tail was raised by implication upon the words, " if he die without issue male; " because the devise extending no further than the sixth son> no son born after could have taken; but the heir-at-law must have been preferred; whereas his intent was to provide equally for all his sons, and, therefore, the raising an estate tail by implication (besides that it Avas in the case of a legal estate) was carrying the testator's intent into execution. The case of King \. Melling has, indeed, gone very far, but has always been looked upon as the ne plus ultra, beyond which no Court would ever go. This appears from the resolution in the case of Backhouse v. 'Wells, where the intent of the parties prevailed against the doctrine now insisted on. But it is said, the word issue is always a word of limitation. In that of Sweetapple v. Bindon, the words did of themselves carry an ' estate tail, and there was no intent appearing to the contrary. And in Legatt v. Servell, one judge was of opinion it was but an estate for life, and that case was afterwards agreed. [ * 12 ] The difference which was insisted on in the former * argu- ment, and is still strongly relied on for the defendant, be- tween legal estates and trusts executed and trusts executory, is evi- dent, and appears plainly from the case of Leonard v. Earl of Sussex, where the words were much stronger to create an estate tail than they are here; but yet, in that case, the Court declared, that, it being a trust executory, the provision should be looked upon as strong for the benefit of the issue, as if it had been in marriage articles; and that the testator's intent (appearing by the subsequent words), '■'that none should have poirer to dock the entail,'' should be observed, therefore decreed but an es- tate for life. This difference appears likewise from the cases of White v. Thornhorough, 2 Vern. 702, and Trevor v. Trevor, Eq. Ca. Ab. 387, and from that of Papillion v. Voice, Hil. 5 Geo. 2, which is not distinguishable from our case, except that there were trustees appointed in that case to preserve contin- 82 LORD GLENORCIIY V. B03VILLH. * 13 gent remainders, which are not in this. But notwithBtanding that provision, the hito Lord Chancellor King declared, in that case, that the limitation, had it been by act executed, would have created an estate tail ; but that the trust being executory, and to be carried into execution by the assistance of this Court, he Avould keep the parties to the observance of the testator's intent, which plainly governs the present case; and by all those it appears that the testa- tor's intent is as much to be observed in cases of executory devises as of marriage articles. If, therefoie, the testator's intent is to be observed, and that no words which may have any operation are to bo rejected, it plainly appears from this and the other clauses of this will, that Sir Thomas Pershall intended this lady only an estate for life. It is true, indeed, that the word " issue " in a will is generally a word of limitation, and creates an estate tail; but that is only where no intent appears to control it. And in every clause of this will, where he intends only an estate for life, he mentions the word "/or life; " and where he intends an estate tail, there is not a woi'd mentioned of impeachment of waste, which shews he knew what he was doing when he inserted this exception, and was not* ignorant of the operation these words would have [*13] on the several estates. And these words were, in the case of LodcUngton v. Kime, 3 Lev. 431, taken to be a strong implication of the testator's meaning to give but an estate for life, notwith- standing the other words, which seemed to carry an entail. Nor is there any colour for what has been insisted on for the plaintifp, that the power of committing waste, with the restraint of voluntary waste in houses, was designed only to attend on her estate for life, till, by her husband's death, she should come to be tenant in tail, since no more could be meant by it than ^o restrain her from de- facing or pulling down houses while she was in her husband's power, the testator not knowing who her husband might be. This power of committing waste has been compared to the power of leas- ing in the case of Bailie v. Coleman, though they are widely differ- ent; nor can it be compared to that of making a jointure in King v. Melling; for, since tenant in tail cannot make a jointure without a recovery, the power was as proper to be annexed to an estate tail as to an estate for life, which was one of the reasons of Lord Hale's opinion in that case. In our case, to serve the intent of restraint of waste in houses, she must be decreed but an estate for life; if it be an estate tail, she will bo enabled to commit waste in houses as 83 * 14 LORD GLENORCHY V. BOSVILLE. well as in all the other parts of the estate, notwithstanding any re- straint to the contrary. Nor will the answer that has been given to this, that she might be restrained in this Court, avail; since no instance can be shewn where a tenant in tail has been restrained from committing waste by an injunction of this Court. [Lord Chancellor. — That was refused in Mr. Saville's Case (a), of Yorkshire, who, being an infant, and tenant in tail in possession, in a very bad state of health, and not likely to live to full age, cut down by his guardian a great quantity of timber just before his death, to a very great value; the remainderman applied here for an injunction to restrain him, but could not prevail.] The other objection, that Sir Thomas Persball could never [ * 14 ] intend the Lady Glenorchy a less estate than the * children of his other grand- daughter, Frances Ireland, turns rather against the plaintiff; for the testator's intent was to provide for the Lady Glenorchy's children preferably to those of Frances Ireland) and therefore he makes the lady herself but tenant for life, and her children tenants in tail. Nor is anything more common than to limit an estate for life only to the first taker, by which the intent of providing for children is better answered than if the first taker was made tenant in tail, Nor will there in this case follow the in- convenience that has been mentioned, by making the issue to be purchasers, viz., that the issue must take jointly, and takes estates for life only; for if issue benomen collectivum, as has been insisted for the plaintiflPs, why may it not be so as well where they take by purchase, as where they take by limitation ? especially where the testator's intent, that they should take successively, and by seniority of birth, is as well served by their taking one way as the other. And if the word issue be«tantamount to the word heirs, as it has been agreed to be, they have answered themselves. In the case of Burchett v. Durdant, 2 Vent. 311, and in 2 Lev. 232, by the name of James v. Richardson, the words, " heirs of the body,^' were held to be words of purchase, by reason of the words " noio Uving,'^ which came just after, and yet were at the same time determined to carry an estate tail, the word " /*ezVs " being nomen collectivum; and if so, in case of a legal estate executed, much more ought this construction to hold here; this will being meant by the testator only as heads of a settlement to be made, and so may well be thought (a) See Mos. 224. 84 LORD GLENORCIIY V. LOSVILLE. * 15 not to have been so accurate in the wording as if the conveyance were then to have been drawn up with advice of counsel, and all other assistances to make it formal. Lord Chancellor Talbot. — Several observations have been made on the different penning of several clauses of this will, from which I think no inference can be drawn; the testator having expressed himself variously in many, if not in all of them. It is plain, that by the * hrst part of this will he intended her [ * 15 ] but an estate for life till marriage; then comes the clause upon which the question depends. But before I give my opinion of that, I must observe, that the trustee has not done right; for nothing was to vest till after her maiTying a Protestant. The trustee therefore by conveying, and enabling her to suffer a recovery before marriage, which has been done accordingly, has done wrong. Construction of the devise assuming it to he legal and executed. — But the great question is, what estate she shall take ? And first, considering it as a legal devise executed, it is plain that the first limitation, with the power and restriction, carries an estate for life only; so likewise of the remainder to the husband: But then come the words ^-remainder to the issue of her body,'''' upon which the question arises. The word ^'issue" does, ex vi termini, comprehend all the issue; but sometimes a testator may not intend it in so large a sense, as where there are children alive, &c. Th^at it may be a word of purchase is clear, from the case of Backhouse v. Wells, and of limitation, by that of King v. MelUng; but that it may be both in the same will has not nor can be proved. The word "/iciVs" is naturally a word of limitation; and when some other words express- ing the testator's intent are added, it may be looked on as a word both of limitation and purchase in the same will; but should the word 'Hssiie^' be looked upon as both, in the same will, what a con- fusion would it breed; for the moment any issue was born, or any issue of that issue, they would all take. The question then will be, whether Sir Thomas Pershall intended the Lady Glenorchy's issue to take by descent or by purchase ? If by purchase, they can take but for life, and so every issue of that issue will take for life; which will make a succession ad infinitum, a perpetuity of estates for life. This inconvenience was the reason of Lord Hale's opinion in King V. Mclling, that the limitation there created an estate tail. It may be, the testator's intent is by this construction rendered a little pre- 85 * 17 LORD GLENORCHY '^. BOSVILLE. carious; but that is from the power of the law over men's [ * IG] estates, and to prevent confusion, Restraint *from waste has been annexed to estates for life, which have been after- wards construed to be estates tail. I do not say that where an ex- press estate tail is devised, that the annexing a power inconsistent with it will defeat the estate : No, the power shall be void. But there the power is annexed to the estate for life, which she took first; and therefore I am rather inclined to think it stronger than King v. Melling, where there was no mediate estate, as there is here to the husband; there, there was an immediate devise, here a mediate one; so the applying this power to the estate for life carries no incon- gruity with it. As the estate of Kivg v. Melling has never been shaken, and that of Shaw v. Weiglt, or Sparroiv v. Shaic, which went up to the House of Lords, was stronger, I do not think that Courts of equity ought to go otherwise .than the Courts of law; and therefore am inclinable to think it an estate tail as it would be at law. Construction of the devise, it being executory. — But there is another question, viz.. How far in cased of trusts executory, as this is, the testator's intent is to prevail over the strength and legal sig- nification of the words ? I repeat it, I think, in cases of trusts ex- ecuted or immediate devises, the constimction of the Courts of laiu and equity ought to be the same; for, there the testator does not sup- pose any other conveyance ivill be made; but in executory trusts he leaves someivhat to be done ; the trusts to be exectded in a more care- ful and more accurate manner. The case of Leonard v. the Earl of Sussex, had it been by act executed, would have been an estate tail, and the restraint had been void; but being an executory trust, the Court decreed according to the intent as it icas found expressed in the will, which must now govern our construction. And though all par- ties claiming under this will are volunteers, yet are they entitled to the aid of this Court to direct their trustees. I have already said what I should incline to, if this was an immediate devise; but as it is executory, and that such construction may be made as that the issue may take without any of the inconveniences which [*17] were the foundation of the ^resolution in King v. Melling'' s Case, and that -as the testator's intent is plain that the issue should take, due conveyance, by being in the common form, viz., to the Lady Glenorchy for life, remainder to her husband the Lord Glenorchy for life, remainder to their first and every other son 86* LORD GLENORCHY V. BOSVILLK. * 18 with a remainder to the daughters, will best serve the testator's intent. In the case of Earl of Stamford v. Sir John Hobart, Dec. 10, 1709, it appeared tliat, for want of trustees to preserve the con- tintrent remainders, all the uses intended in the will and in the Act of Parliament to take effect, might have been avoided: and there- fore the Lord (Joicper did, notwithstanding the words of the Act, upon great deliberation, insert trustees. In the case of Leyutt v. Sewill, the words, if in a settlement, would have made an estate tail; and in that of Baile v. Coleman, the execution was to be of the same estate as he had in the trust, which in construction of law was an estate tail. Nor is the rule generally true, that in articles and executory trusts different constructions are to be admitted; the late case of Papillon v. Voice is directly against this, and it seems to me a very strong authority for executing the intent in the one case as well as the other. And so decreed the Lady Glenorchy but an estate for life, with remainder, &c. LEGG V. GOLDWIRE. [reported CAS. TEMP. TALBOT, 20.] [Nov. 10th, 1736.] ° . Rectification or Marriage Settlement.] — When a Marriage Set- tlement will he rectified by Marriage Articles. N. B. By Lord Chancellor Talbot. — ^Where articles are entered into before marriage, and a settlement is made after marriage dif- ferent from those articles (as if by articles the estate was to be in strict settlement, and * by the settlement the husband [ * 18 ] is made tenant in tail whereby he hath it in his power to bar the issue), this Court will set up the articles against the settle- ment; but where both articles and settlement are j^i^^vious to the marriage, at a time when all parties are at liberty, the settlement differing fi-om the articles will be taken as a new agreement between them and shall control the articles [m). And although, in the case of West\. Errissey (n), Mich. 1726, in the Court of Exchequer, and {m) See, however. Bold v. Hutchinson. 5 De G. Mao. t^c G. 55S, 567 (n) 2 P. Wms. 349; 3 Bio. P. C. :}27; Collectanea, Jur. 4fi:]. 87 * 19 LORD GLENCRCHY V. BOSVILLE. afterwards in the House of Lords, in 1727, the articles were made to control the settlement made before marriage, yet that resolution no way contradicts the general rule; for in that case the settlement was expressly mentioned to be made in pursuance and performance of the said marriage articles, whereby the intent appeared to be still the same as it was at the making of the articles. ''Lord Glenorchy v. Bosville, in Lord TalboVs time," observes Lord Hardivicke, "has established the distinction between trusts executed and executory: " Bagshaw v. Spencer, 2 Atk. 582: His Lord- ship, however, in the same case, almost denied that any such distinc- tion existed, although he afterwards fully admitted it {Exel v. Wal- lace, 2 Ves, 323; Bastard v. Prohy, 2 Cox, 8); and it has since been recognized by a long series of decisions. See Austen v. Tai/lor, 1 Eden, 367, 3G8; Countess of Lincoln v. Duke of Newcastle, 12 Ves. 227; Jervoise v. Dake of Northumberland, 1 J. & W. 570; Black- burn V. Stables, 2Y. & B. 309; Lord Deerhurstv. Duke of St. Albans, 5 Madd. 233; S. C, nom. Tollemache v. Coventry, 2 C. & F. 611; Douglas v. Cofigreve, 1 Beav. 59; S. C, 4 Bing. N. C. 1, 5 Bing. N. C. 318; Boswell v. Dillon, 1 Dru. 297. See also Earl of Stamford V. Sir John Hobart, 3 Bro. P. C. 33, Toml. ed. ; Papillon v. Voice, 2 P. Wms. 471; Dillon v. Blake, 16 Ir. Ch. Eep. 24; 2 Seton on Decrees, 1235—1242, 4th ed. [The difference between executory and executed trusts is now well settled both in England and the United States. Dennison v. Goehring, 7 Barr. 177; Wood v. Burnham, 6 Paige, 518; Garner \. Garner, 1 Dessaus, 448; Edmondson v. Dyson, 2 Kelly, 307; Bei-ry v. Williamson, 11 B. Mont. 245; Gushing \. Blake, 30 N. J. Eq. 689; Weehaivken Ferry Co. v. Sisson, 2 C. E. Green, 476; MullonyY. Id., 3 Gr. Ch. 16.] It is proposed in this note to consider the distinction between trusts executed and executory, and the consequences which result there- from principally with reference to the limitation of estates. A trust is said to be executed when no act is necessary to be done to give efiect to it, the limitation being originally complete, as where an estate is conveyed or devised unto and to the use of A. [ * 19 ] * and his heirs in'trust for B. and the heirs of his body. A trust is said to be executory where some further act is nec- essary to be done by the author of the trust or the trustees, to give effect to it, as in the case of marriage articles, and as in the case of a will where property is vested in trustees in trust to settle or convey in a more perfect and accurate manner; in both of which cases a further act, viz., a settlement or conveyance, is contemplated. [The distinction between executed and executory trusts, depends upon the manner in which the trust is declared. When the limitations LORD GLENORCIIY V. BOSVILLE. * 19 are fully and perfectly declared the trust is regarded as an executed trust. It is only where the limitations are imperfectly declared and the intention of the creator is expressed in general terms, leaving the manner in which his intent is to be canned into effect, substanially in the discretion of the trustee, that a Court of equity regards the trust as an executory one. A mere direction to the trustee to convey, will convey a trust into an executory trust, see, Gushing v. Blake, 8 Stewart (N. J. Eq.), G94; Cushing v, Slicrard, 5 Wallace, 2G8; YarnelVs Appeal, 20 P. F. Smith, 340; Neves v. Scott, 9 How. 211.] It is now clearly estal)lished, as laid down by Lord Talbot in Lord Glenorchij\. j5osr//fc,thataCourtof equity in cases of execn^ed /ru.s/.s will construe the limitations in the same manner as similar legal limitations. If, for instance, an estate is vested in trustees and their heirs in trust for A. for life, Avithout impeachment of waste, with remainder to trustees to preserve contingent remainders, with remainder in trust for the heirs of A.'s body, the trust being an executed trust. A., according to the rule in Shelley's Case (1 Co. 936, L. Cas. K P. 589, 3rd Ed.), which is a rule of law, will be held to take an estate tail. Here it will bo observed that the rule pre- vails over the evident intention, that A. should have only a life interest, evidenced by its being given to him without impeachment of waste, and by the limitation to trustees to preserve contingent remainders. See Wright v. Pearson, 1 Eden, 119; Austen v. Taylor, 1 Eden, 301; Jmies v. Morgan, 1 Bro. C. C. 206; Jervoise v. Duke of Northumberland, 1 J. & W. 559; clearly overruling the opinion expressed by Lord Hardivicke in BagsJtaw v. Spencer, 2 Atk. 577, when he erroneously reversed the decision of Sir Joseph Jekyll, M. Pt. See also Bosivell v. Dillon, 1 Dru. 291. In cases, however, of execidory trusts, where, according to Lord Talbofs observation in Lord Glenorchyy. Bosvillc, something is left to be done viz., the trusts are left to be executed in a more careful and more accurate manner, a Court of equity is not, as in cases of executed trusts, bound to construe technical expressions with legal strictness, but will mould the trusts according to the intent of those who create them. [ In an executed trust the instrument must be interpreted according to the rules of law although by such an in- terpretation the intention is defeated. If an estate is given to A. and his heirs in trust for B. for life with remainder to the heirs of B. B. will take an estate in fee according to the rule in Sbelly's case, but if the instrument was intended only as a draft of a scheme for settling as estate the same provision would be construed as in- dicating an intention to give B. a life estate and then the heirs would take by purchase. When the formal instrument comes to be drawn the Court of Chancery will see that a settlement is made which will in due form of legal conveyancing carry out the inten- tion of the creator of the trust and B. will take but a life estate and his heirs will take as purchasers in remainder: Porter v. Doby, 2 89 *20 LORD GLENORCIIY ^. BOS VILLE. Eicb. Eq. 49; Bacons Appeal, 7 P. F. Smith, 340; Neves v. Scott, 9 How. 211; YarnalVs Ajjpeal, 20 P. F. Smith, 340.] A mere direction, howevei*, to convey, upon certain trusts, will not render those trusts executory, in the sense in which the word is used in this note, if the author of the trust has, as it were, taken upon himself to be his own conveyancer, and instead of leaving anything to be done beyond the mere execution of a conveyance, has defined what the trusts or limitations are to be in accurate and technical terms. "All trusts," observes Lord »S'^. Leonards, "are in a sense executory, because a trust cannot be executed except by conveyance, and [ "^' 20 ] therefore there is something always to be done. * But that is not the sense which a court of equity puts upon the term 'executory trust.' A Court of equity considers an executory trust as distinguished from a trust executing itself, and distinguishes the two in this manner: — Has the testator been what is called, and very properly called, his own conveyancer? Has he left it to the Court to make out, from general expressions, what his intention is, or has he so defined that intention that you have nothing to do but to take the limitations he has given to you, and to convert them into legal estates?" Egerton v. Earl of Broivnloiv, 4 Ho. L. Cas. 210, and see lb. pp. 49, 60, 61, 181, "l88, 209; Austen v. Tcujlor, 1 Eden, Eep. 361, 367, 868; Wight v. Leigh, 15 Ves. 564, 568; Graham v. Stewart, 2 Macq. Ho. L. Cas. 295, 325; Herbert v. Blnnden, 1 Dru. & Walsh, 78, 89, 91; East v. Twi/ford, 9 Hare, 713, 733, 4 Ho. L. Ca 517; Doncaster v. Doncaster, 3 K.. & J. 26; Tathaniy. Vernon, 29 Beav. 604, 614; Osborn v. Bellman, 2 Giff. 593; Fullerton v. Martin, 1 Drew. & Sm. 31; De Haviland v. De Saumarez, 14 W. K. (L. J.) 118; Lees v. Lees, 5 I. K £q. 549; In re Whittles Trust, 9 I. R. Eq. 41; Sackville-WestY. Viscount Hohnesdale, 4L. R. Ho. L. Ca. 571; Miles \. Harford, 12 Ch. D. 691,699; Shelley y. Shelley, 6 L. R. Eq. 540. \Tillinghast v. Coggeshall, 7 Rhode Island, 383; Saunders v. Edtvards, 2 Jones, Eq. 135.] And though there is a direction by the testator to the trustees to correct any defect or in- correct expression in his will, and to form a settlement from what appears to them to be his meaning, it will not authorize any change in the limitations: Stanley v. Stanley, 16 Yes.- 491, 511 It is observed by Lord Talbot, in Lord Glenorchy v. Bosville, that the rule is not generally true, that in articles and executory trusts (meaning executory trusts in wills) different constructions are to be admitted. This is correct with the qualification or distinction that, in executory trusts under marriage articles, the intention of the parties may fairly be presumed a priori from the nature of the transaction; in executory trusts in wiilc, it must be gathered from the words of the will alone. Lord Eldon seems to have denied this distinction in Countess of Lincoln v. Duke of Neivcastle, 12 Ves. 227, 230; but see his explanation in the case of Jervoise v. Duke of Northumberland, 1 J. & W. 574. The distinction has been well put by Sir William Grant, M. R., in Blackburn v. Stables, 2 Y. & 90 LORD GLENORCIIY V- BOSVILLE. * 21 B. 369. [In executory trusts created by will there is no presump- tion as to the intention of the testator. Allen v. Henderson, 49 Pa. St. 333; Bobertson V. Johnson, 30 Ala. 197; McPliersimw. Snoivden, 19 Md. 197.] "I know," observes his Honor, "of no difference between an executory trust in marriage articles and in a will, except that the object and purpose of the former furnish an indication of intention which must bo wanting in the latter. AVhen the object is to make a provision, by the settlement of an estate, for the issue of * a marriage, it is not to be presumed that the parties [ * 21 ] meant to put it in the power of . the father to defeat that purpose, and appropriate the estate to himself. If, therefore, the agreement is to limit an estate for life, with remainder to the heirs of the body, the Court decrees a strict settlement in conformity to the presumal)lo intention; bat if a will directs a limitation for life, with remainder to the heirs of the body, the Court has no such ground for decreeing a strict settlement. A testator gives arbitrarily what estate he thinks fit; there is no presumption that he means one quantity of interest rather than another, — an estate for life rather than in tail or in fee. The subject being mere bounty, the intended extent of that bounty can be known only from the words in which it is given; but, if it is cleai'ly to be ascertained from any- thing in the will, that the testator did not mean to use the expres- sions which he has employed, in their strict, proper technical sense, the Court, in decreeing such settlement as he has directed, will depart from his words, in order to execute his intention." See also Lord Deerhurst v. Duke of St. Alban^s, 5 Madd. 260; Magidre v. Sciilhj, 2 Hog. 113; Stratford v. Foicell, 1 Ball & B. 25; Scarisbrick V. Lord Skelmersdale, 4 Y. & C. Exc. Ca. 117; Cocqie v. Arnold, 4 De G. M. & G. 585; Sackville-West v. Viscount Hohnesdale, 4 L. R. Ho. L. 543; Viscount Hohnesdale v. West, 3 L. E. Eq. 474; Magrath v. Morehead, 12 L. R. Eq. 491. In consequence of the distinction adverted to, it will be most con- venient to consider executory trusts under marriage articles, and executory trusts under wills, separately. 1. As to Execidory Trusts under Marriage Articles.] — If, in ar- ticles before marriage, for making a settlement of the real estate of either the intended husband or wife, it is agreed that the same shall be settled upon the heirs of the body or the issue of them or either of them, in such terms as would, if construed with legal strictness, according to the rule in Shellei/s Case, give either of them an estate tail, and enable either of them to defeat the provi- sion for their issue. Courts of equity, considering the object of the articles, viz. to make a provision for the issue of the marriage, will, in conformity with the presumed intention of the parties, decree a settlement to be made upon the husband or wife for life only, with remainder to the issue of the marriage in tail, as purchasers. [A settlement under marriage articles will be made according to the 91 * 23 LORD GLENORCHY V. BOSVILLE. intentions of the parties if possible, Gause v. Hale, 2 Ired. Eq. 24] ; Allen v. Rumph, 2 Hill Eq. 1.] Thus, in Trevor v. Tre- vor (1 Eq. Ca. Abr. 387; S. C, 1 P. Wms. 622), A., in consid- eration of an intended marriage, covenanted with trustees to settle an estate to the use of himself for life, withoiit im- [ * 22 ] peachment * of waste, remainder to his intended wife for life, remainder to the use of the heirs males of him on her body to be begotten, and the heirs males of such heirs males issu- ing, remainder to the right heirs of the said A. for ever. Lord Macclesfield said, that upon articles the case was stronger than on a will; that articles were only minutes or heads of the agreement of the parties, and ought to be so modelled, when they came to be carried into execution, as to make them effectual; that the intention was to give A. only an estate for life; that, if it had been otherwise, the settlement would have been vain and ineffectual, and it would have been in A.'s power, as soon as the articles were made, to have destroyed them. And his Lordship therefore held, that A. was en- titled to an estate for life only, and that his eldest son took by pur- chase as tenant in tail. This decision was affirmed on appeal in the House of Lords; 5 Bro. P. C, Toml. ed., 122. In Streat field v. Streat field, Ca. t. Talb. 176 (selected as a lead- ing case on another point), T. S., by articles, agreed to settle lands to the use of himself and M. his intended wife, for their lives and the life of the survivor; and after the survivor's decease, to the use of the heirs of the body of him the said T. S., on his wife begotten, with other remainders over. After marriage, by a deed reciting the articles, he settled the lands to the use of himself and his wife for their lives and the life of the longest liver of them, without im- peachment of waste during the life of T. S. ; and after their decease, to the use of the heirs of the body of the said T. S. on the said M. to be begotten; and for want of such issue, to the right heirs of T. S. Lord Talbot held, that the settlement was not a proper execu- tion of the articles, and said that it could not be doubted, but that, upon application to the Court for carrying the articles into execu- tion, it would have decreed it to be done in the strictest manner, and would never leave it in the husband's power to defeat and an- nul everything he had been doing; and that the nature of the pro- vision was strong enough, without express words. See also Jones V. Laughton,! Eq. Ca. Abr. 392; Cusack v. Cusack, 5 Bro. P. C, Toml. ed., 116; Griffith v. Buckle, 2 Vern. 13; Stonor v. Curicen, 5 Sim. 268, 269; Davies v. Davies,4, Beav. 54; Lambert v. Peyton, 8 Ho. L. Ca. 1; In re Griefs estate, 6 I. E. Eq. 1; S. C. nom. Grier V. Grier, 5 L. B. Ho. Lo. 688. "Where in marriage articles the words " heirs of the body," or " issue," are held to indicate an intention that the issue of the marriage should take as purchasers, a settlement will be decreed in favour of daughters as well as sons, viz. 'in first and other [ * 23 ] sons successively in tail, with remainder ^ to the daughters 92 LORD GLENORCHY V. BOSVILLE. * 24 as tenants in common in tail, with cross remainders between them: Nandick v. Wilkes, Gilb. Eq. Rep. 114; S. C. 1 Eq. Ca. Abr. 893, c. 5; Burton v. Hai^tingt^, (iilb. Eq. Kep. llo; S. C, 1 Eq. Ca. Abr. 398; Hart v. Middlehurst, 3 Atk. 371; Mamjat v. Ton-nly, 1 Vea. 105; Maguire v. Scully, 2 Hog. 113; S. C, 1 Beat. 370; Burn- ahy V. Grijjin, 3 Ves. 2(36; Home v. Barton, 19 Ves. 398, Coop. 257; S. C, on an application for a rehearing, 20 L. J. N. S. (Cb.) 225; Phillips V. James, 2 D. & Sm. 404, 408, 3 De G. J. & Sm. 72; in re Grier's estate, G I. R. Eq. 1, U ; S. C. nom. Grier v. Grier, 5 L. R. Ho. Lo. 088. In Rossiter v. Rossiter, 14 Ir. Ch. Rep. 247, the hnsband agreed to convey to trustees for himself for life, and if his wife survived, to the use of the '"wife and children," if no child, to the wife in fee. A settlement upon the wife for life with remainder to the children, was decreed, Wildes Case (6 Co. 16) being held inapplicable to mar- riage articles. Where it is agreed to settle real estate to the use of the intended husband for life, i-emaiuder to the heirs male of his body, remain- der to the heirs female of his body, the words "heirs female" will be held to mean daughters of the marriage, and a settlement will bo made upon them as tenants in common in tail, with cross remain- ders between them: West v. Errissey, 2 P. Wms. 849, Comyn's Rep. 412, 1 Bro. P. C, Toml. ed., 225. A limitation, however, to the heirs of the body, following after a remainder to the first and other sons of the mari'iage in tail male, and a remainder to heirs male generally, will not, it seems, be so construed in favour of the daughters of the marriage, especially where portions are by the articles expressly provided for them: Poii-eU V. Price, 2 P. Wms. 535. The principle upon which Courts of equity, in such cases as have been considered, decree a strict settlement, seems to be this, viz. to give effect to the presumed intention of the parties to the articles, to make such a provision for the issue of the marriage as it would not be in the power of either -piirent to defeat; where, however, ar- ticles are so framed that the concurrence of both parents is requi- site, in order to defeat the provision for the issue, the same princi- ple does not apply, as it might have been the intention of the par- ties to the articles, that the husband and wife should jointly have such power. Thus, where the husband has by articles agreed to settle his oivn property upon himself for life, remainder to his wife for life, with remainder to the heirs of the body of the wife by him, as she would in, this case be tenant in tail exprovisione viri, and consequently could not, by * reason of the Statute [ * 24 ] of Jointures (11 Hen. 7, c. 20), if the property were settled upon her previous to the passing of the Fines and Recoveries Act (3 & 4 Will. 4, c. 74), bar the entail without the concurrence of her husband, a settlement making the issue take by purchase would not be decreed: Whately v. Kemp, cited in Hoiuel v. Hoicel, 2 Ves. 358; 93 * 25 LORD GLENORCHY V. BOSVILLE. Honor v. Honor, 1 P. Wms. 123, Green v. Ekins, 2 Atk. 477: High- ivay V. Banner, 1 Bro. C. C. 584; *SacA;^J^7Ze-TFes^ v. Viscount Holmes- dale, 4 L. R. Ho. Lo. 554. As, however, the statute 11 Hen. 7, c. 20, has been repealed as to estates tail ex provisione viri by 3 &■ 4 Will. 4, c. 74, s. 16, this exception from the general rule will cease to be part of the law: Rochfordy. Fitzmaurice, 2 D. & W. 19. So, also, where it appears on the face of the articles that the parties themselves knew and made a distinction between limitations in strict settlement, and limitations leaving it in the power of one of the parents to bar the issue, a strict settlement will not be de- creed. Thus, where by articles part of an estate was limited to the husband for life, remainder to the wife for life, remainder to the first and every other son and daughter in tail, and another part to the husband for life and the heirs male of his body by that wife, Lord Macclesfield said, that if the latter had been the sole limita- tion, he should without scruple decree in strict settlement, accord- ing to the common rule; but where the parties had shown they knew the distinction when to put it out of the power of the father, and when to leave it in his power, he would not vary the last limi- tation decreeing to the father in tail as to the last, though not as to the first: Anon., cited 2 Ves. 359; Howel v. Hotvel, 2 Ves. 358; Poivell V. Price, 2 P. Wms. 535; Chambers v. Chambers, Fitzg. Rep. 127; S. C, Mos. 333, 2 Eq. Ca. Abr. 35, c. 4; Highway v. Banner, 1 Bro. C. C, 584. Where words in articles for a settlement would, if interpreted in their strict legal sense, create a joint-tenancy among the children of the marriage, equity will decree a settlement upon them as ten- ants in common, either with provisions for limiting over the shares of any who died under age and without issue ( Taggart v. Taggari, 1 S. & L 89), or for making the interests of the children contingent on their attaining twenty-one being sons, or being daughters attain- ing that age or marrying: Young v. Macintosh, 13 Sim. 445; Cogan V. Diiffield, 2 Ch. D. 44, 50. The reason given by Lord Redesdale for preferring a tenancy in common is that a joint tenancy as a pro- vision for the children of a marriage is an inconvenient mode of settlement, because during their minorities no use can be made of their portions for their advancement, as the joint-tenancy [* 25] cannot * be severed: Taggart v. Taggart, 1 S. & L. 88. See also Mayn v. Mayn, 5 L. R. Eq. 150; Liddard v. Lid- dard, 28 Beav. 266. The rule was not departed from in In re Bel- lasis' Trust, 12 L. R. Eq. 218, as the trust there, though informal, appears to have been treated by the learned judge as executed, and not executory, as it is stated to be in the head note. When articles direct personal jyrojierty of the wife to be settled upon trust for the husband and wile " during their lives," they will be carried into effect by giving the wife the first life interest td her separate use: Cogan v. Diiffield, 20 L. R. Eq. 789, 2 Ch. D. 44. Although provisions in marriage articles may be vague, the Court 94 LOKD GLENORCHY V. BOSVILLE. * 20 will endeavour to carry them out as well as it can. Thus where in marriage articles there was a trust " to ])rovide suitably " for the settlor s younger children, it was held in a case in Irelard, that it was not too vague to be executed, and that the Court ought to direct an inquiry what the provisions should be: Brenan v. Brenan, 2 Ir. R. Eq. 26(1 [A chancellor in decreeing a settlement in con- formity with marriage articles will take care that the issue are pro- vided for: Bispham's Equity, sec. 57.] A very good example of the mode in which the Court will carry out informal marriage articles of the intended wife's personal property is to be found in Cogau v. Dujjield, 2 Ch. D. 44. And it has been laid down that executory trusts in postnuptial settlements will receive the same construction as executory trusts in ivills: Rochford v. Fitzmaurice, 1 C. & L. 158, 172, 173. Where, by a postnuptial agreement, a settlement was directed to be made upon a son of the marriage and his issue, it was held that the same considerations did not apply as in the case of a similar limitation to an intended husband and his issue by articles before marriage, so as to cut down the interest of the son to a life interest. See Dillon v. Blake, 10 Ir. Ch. Hep. 24; there by executory aritcles for valuable consideration, made between H. Blake and his Avife and sons, it was agreed that after the death of H. Blake, his estates should be limited to and settled upon B., his eldest son and his issue, with remainder, in the evetit of B. dying in the lifetime of H. Blake, without lawful issue, to each of the other sons of H. Blake, in succession, according to their seniority, with an ultimate remain- der to the right heirs of H. Blake. And power was given to tho trustees to lease any part of tho lands, with the concurrence of H. Blake. B. survived H. Blake, and had issue. It was held by the Lord Chancellor of Ireland ( Blackburne) , in a suit to carry these articles into execution, that B. was entitled to an estate tail in pos- session, with remainder to him in fee. Covenants to settle chattels on the same tmsts as realty. ] — Where chattels are settled immediately * or by [ * 26 ] a trust executed upon the same trusts as have been de- clared of real estate in strict settlement, viz., upon first and other sons successively in tail, if there is no restriction as to the attain- ment of twenty-one years or the fulfilment of any other condition, such chattels will vest absolutely in the first tenant in tail at his birth whether the limitation of tho chattels be expressed in cxtenso, or created by reference to the limitations of the realty (Doncaster v. Doncaster, 3 K. & J. 26), and such reference may be effectually made either by declaring that tho chattels are to go upon the limi- tations of the realty or by saying that they are to be treated as heirlooms: Lord Scarsdalev. Curzon, 1 J. & H 40. See In re John- son's Trusts, 2 L. R. Eq. 716. This result is prevented in well -drawn settlements by a clause in clear words suspending the vesting of the chattels in the first ten- 95 * 2? LORD GLENORCHY V. BOSVILLE. ant in tail " unless he should attain the age of twenty -one years," or " unless he should die under twenty-one years leaving issue." And see forms suggested in Davidson, 3rd Ed. vol. iii. p. 566, with reference to Gosling v. Gosling, 1 De G. J. & S. 1; S. C. nom. Christie v. Gosling, 1 L. R. Ho. Lo. 279. The best form, for preventing the separation of the chattels and the freeholds is a declaration that such chattels shall not vest abso- lutely in any tenant-in-tail hy purchase, who may die under twenty- one, but shall at his death devolve as nearly as possible in the same manner as the freeholds: Davidson, vol. i. pp. 401, 464, 3rd Ed. In cases, however, of executed trusts, doubtful words tending to restrict the interests of chattels to those who come into the posses- sion of the realty, will not overrule the operation of the general canons of construction, nor suspend the interest until possession of the realty is acquired: Lord Scarsdale v. Curzon, 1 J. & H. 40; John- sort's Trusts, 2, L. R.' Eq. 716. In the case of an executory trust by settloment, as where a person has agreed or covenanted to settle chattels upon similar trusts to real estate in strict settlement, a Court of equity, upon the prin- ciple of carrying into efPect the intent of the parties as far as pos- sible, will order a clause to be inserted in the settlement of the chattels — that the tenant in tail should not under the limitations be entitled to the absolute property in the chattels " unless he should attain the age of twenty- one years," or " unless he should die under twenty-one, leaving issue." See Duke of Neiccastle v. Countess of Lincoln, 3 Ves. 387, in which case there was a covenant in a mar- riage settlement to settle leaseholds in trast for such persons and for such or the like ends, intents, and purposes, as far as the law in that case ivoulcl allow and permit, as were declared [ * 27 ] * concerning certain real estates which were limited to A. for life, remainder to his first and other sons in tail male, remainder to B. for life, remainder to B.'s first and other sons in tale male, remainders over. A. died, leaving a son who lived only nine months. Ijord Loughborough stated it to be his decided opin- ion, that in cases of marriage articles, where leasehold property was covenanted to be settled upon the same limitations as freehold es- tate and the limitations of the freehold estate were to all the sons successively in tail, the settlement to be made of the leaseholds ought to be analogous to that of the freeholds, so that no child born and not attaining twenty-one should by his birth attain a vested in- terest to transmit to his representatives, and thereby defeat the ulterior object of the articles, which were not in favour of one son, but equally extended to every son; and his Lordship (admitting the law as laid down in Vaughan v. Burslem, 8 Bro. C. C. 101, to be applicable to wills) observed that "it is not true that you are to do for the testator all that can be done by law. You are to do for the testator no more than what he has intended to be done, and accord- ing to the common acceptation of the words But," said his Lord- 96 LORD GLENOIICIIY V. BOSVILLE. * 28 ship, "I wish to put it to yon, whotber in the nature of things there is not a radical and essential ditt'erenco between marriage settle- ments and wills ? The parties contract upon a settlement for all the remainders. They are not voluntary, but within the considera- tion. The issue, then, are all purchasers. Suppose, then, a settle- ment to be made of freehold estate, and as to the leasehold there is only this article, that the settlement shall be analogous to that of the freehold; do I execute it and make a like settlement by giv- ing an interest which cuts off all the issue ? Suppose the whole subject was leasehold estate, and stood upon an article that it should be conveyed according to the limitations of an honour, and a bill was brought to carry that settlement into effect after a child had lived a day, should I permit the father to say it was his propei-ty? It is utterly impossible to make the identical settlement of the leasehold estate as of the freehold; but if I am to make it by analogy to the settlement of the freehold, shall I not carry it on to all the near events? and shall they fail because I cannot embrace all the remote events ?" And his Lordship thought there was no ol)jection to a proviso that no person should be entitled to the absolute property unless he should attain the age of twenty-one years or die under that age leaving issue male. Upon an appeal to the House of Lords (reported 1 2 Ves. 218), a son of B.'s having in the meantime at- tained his majority, it was decreed that the leasehold estate * vested absolutely in him; Lord Ellenhorough and Lord [ * 28 ] Erskine, then Lord Chancellor, to this extent approving of the decree of Lord Loughborough, that the absolute interest did not vest in the first tenant in tail, A.'s son, on his birth; but it was un- necessary to decide what was the proper limitation to have been in- serted in the settlement, whether a limitation over on " dying under twenty- one," or on " dying under twenty-one without issue male." Lord EldoH, however, denying the distinction between wills and marriage articles, expressed some dissatisfaction with the decree, and stated that he could not reconcile the decision with Vaughan v. Burslem (3 Bro. C. C. 101) and Foley v. Burnell(l Bro. C. C. 274), decided by Lord Thurloio, although he did not move an amend- ment. The cases, however, of Vaughan v. Burslem and Foley v. Burnell are cases of wills; and Lord Eldon himself afterwards, in Jervoise v. Duke of Nortlmmberland, fully admitted the distinction between executory trusts in marriage articles and wills: see 1 J. & "VV. 574; Scarsdale v. Curzon, 1 J. & H. 51, 54; Sackville-Wcst v. Viscount Holmesdale, 4 L. R. Ho. Lo. 543. It may be here mentioned, that although, properly speaking, a marriage settlement ought to be executed, in order to carry the ex- ecutory provisions of marriage articles into effect, the Court has, where the property was personal, at the request of the parties, in order to save expense, made a declaration as to the true meaning of the articles, upon which the parties were able to act, without causing a formal intrument to be prepared and executed : Byam v. T WHITE OX EQUITY. 97 * 29 LORD GLENORCIIY V. BOSVILLE. Byam, 19 Beav. 58, 63. But tho judgment should be stamped, post, p. 37. 2. As to Executory Trusts in Wills.^ — The intention of the testa- tor must appear from the will itself, that he meant "heirs of the body," or words of similar legal import, to be words of purchase : otherwise Courts of equity will direct a settlement to be made ac- cording to the strict legal construction of those words. Suppose, for instance, a devise to trustees in trust to convey to A. for life, and after his decease to the heirs of his body or words equivalent to heirs of the body ; or a devise in trust for A., with a direction to make a proper entail to the heir male by him ; as no indication of intention appears that the issue of A. should take as purchasers, the rule of law will prevail, and A. will take an estate tail, although, as we have already seen in the case of marriage articles similarly worded, he would take only as tenant for life. Thus, in Siveetapple V. Bindon, 2 Vern. 536, B. by will gave 300Z. to her daughter Mary, to be laid out by her executrix in lands and settled to the only [ * 29] use of her daughter Mary and her children, and if she * died without issue the land to be equally divided between her brothers and sisters then living ; Lord Cowper said, that, had it been an immediate devise of land, Mary, the daughter, would have been, by the words of the will, tenant in tail : and in the case of a voluntary devise, tho Court must take it as they found it, and not lessen the estate or benefit of the legatee : although upon the like words in marriage articles it might bo otherwise. See, also Legatt V. Sewell, 2 Vern. 551 ; Seale v. Seals, 1 P. AVms. 290 ; Samuel v. Samuel, 14 L. J. Ch. 222 ; 9 Jur. 222 ; Harrison v. Naylor, 2 Cox, 247 ; Marshall v. Bousfield, 2 Madd. 166 ; Blackburn v. Stables, 2 V. & B. 370 ; Meure v. Meure, 2 Atk. 266 ; Jervoise v. Duke of Northumberland, 1 J. & W. 559 ; Randall v. Daniel, 24 Beav. 193 ; Loicry v. Loicry, 13 L. R. I. 317, In the following cases, however, it has been held that there has been a sufficient indication of the testator's intention, that the words "heirs of the body," or words of similar import, should be consid- ered as words of purchase and not of limitation, viz., where trustees were directed to settle an estate upon A. and the heirs of his body taking special care in such settlement that it should not be in the power of A. to dock the entail of the estate given to him during his life: Leonard v. Earl of Sussex, 2 Vern. 526. So in Thompson v. Fisher, 10 L. R. Eq. 207, a testator subject to the life interest of his widow, devised freehold property to trustees "upon trust to convey, assign and assure" the same "unto and to the use of his son T. Fisher, and the heirs of his body lawfully issuing, but in such manner and form nevertheless, and subject to such limitations and restrictions, as that if T. Fisher shall happen to die u'ithoid leaving lairful issue, then that the property may after his death descend unincumbered unto and belong to his daugh- 98 LORD GLENORCIIY V. DOSVILLE. * 30 ter, Ruth Fisher, her heirs, executors, administrators, and assigns." Sir W. M. James, V.-C, held that the devise was an executory trust to be executed by a conveyance to the use of T. Fisher during his life, with the remainder to his first and other sons and daughters as purchasers in tail, with remainder to the testator's daughter lluth in fee. See also Shelton v. Watson, 10 Sim. 548. So, directions in a will that heirs of the body or issue shall take, "in succession and pi'iorily of birth," or that the settlement shall be made "as counsel shall advise" or ^'as executors shall think fiV^ have been helcj. strongly to indicate an intention that an estate should be settled strictly: see White \. Carter, 2 Eden, 368; Bastard \. Prolnj, 2 Cox, 6; Rochford v. Fitzmaurice, 2D. & W. 1; Read v. Snell, 2 Atk. 642; Haddelsey v. Adams, 22 I^eav. 276. * So, where a testator directed trustees to convey an estate [ * 30 ] to his daughter for her life, and so as she alone, or such other person as she should appoint, should take or receive the rents and profits thereof, and so that her husband should not intermed- dle therewith, and from and after her decease in trust for the heirs of her body for ever; Lord Hardwicke, considering that it was plainly the intention of the testator that the husband should have no manner of benefit from the estate, either in the lifetime of his wife or after her decease, held, that the words "heirs of her body" were words of purchase, and that the wife was entitled to a life estate only; for had they been construed as Avords of limitation, and the wife had taken as tenant in tail, the husband, contrary to the intention of the testator, would have had considerable benefit from the estate as tenant by the curtesy; Roberts v. Dixwell, 1 Atk. 607; S. C , West's Kep. temp. Lord Hardwicke, 536; see also ;S^o??07' v. Cuncen, 5 Sim. •^M•, Parker v. Bolton, 5 L. J. N. S. (Ch.) 98; Earl of Verulam \. Bathurst, 13 Sim. 386; Shelton \. Watson, 16 Sim. 543; sed vide Samuel v. Samuel, 14 L. J. N. S. (Ch. ) 222; Young V. Macintosh, 13 Sim. 445; Head v. Randall, 2 Y. & C. C. C. 231; Coape v. Arnold, 2 Sm. and G. 311, 4 De G. Mac. & G. 574. Where a testator, as in Lord Glenorchy v. Bosivell, directs an es- tate to be conveyed to a person for life ^'■icithoid impeachment of iraste," or to a person for life with a limitation to trustees "/o pre- scrve contingent remainders," he will be held sufficiently to have indicated his intention, that in a subsequent limitation to the issue or heirs of the body of the person to whom the life interest is given, such issue or heirs should take as purchasers, and a strict settle- ment will accordingly be directed: see Pajyillon v. Voice, 2 P. Wms. 471, in which case the distinction between executed and executory trusts in wills is most strikingly illustrated. There A. bequeathed a sum of money to trustees, in trust, to be laid out in a purchase of lands and to be settled on B. for life, without impeachment of tvaste, remainder to trustees and their heirs during the life of B. to preserve contingent remainders, remainder to the heirs of the body of B., remainder over, with power to B. to make a 99 * 31 LORD GLENORCHY V. BOSVILLE. jointure; and by the same will A. devised lands to B., for his life, ivithout impeachment of icaste, remainder to trastees and their heirs durincr the life of B. to support contingent remainders, remainder to the heirs of the body of B., remainder over: though it was de- creed at the Rolls that an estate for life only passed to B.,-with re- mainder to the heirs of his body by purchase as well in the lands devised as in those directed to be purchased, yet upon an [ * 31 ] appeal from this decree Lord * Chancellor King declared as to that part of the case where lands were devised to B. for life, though said to be without impeachment of waste, with re- mainder to trustees to support contingent remainders,remainder to the heirs of the body of B., this last remainder was within the general rule, and must operate as words of limitation, and consequently create a vested estate tail in B., and that the breaking into this rule would occasion the utmost uncertainly'; but as to the other point he de- clared the Court had a power over the money directed by the will to be invested in land, and that the diversity was where the will passed a legal estate and where it was only executory, and the party must come to the Court in order to have the benefit of the will; that in the latter case the intention should take place and not the rules of law, so that as to the lands to be purchased they should be limited to B. for life, with power to B. to make a jointure, remainder to trustees during his life to preserve contingent remainders, remain- der to his first and every other son in tail male successively, remainder over: Venables v. Morris, 7 T. R. 342; Doe v. Hicks, 7 T. R. 433. So, where a testator directed his estates and house property to be settled on his son, T. F. D., and his heirs male; and if he should have no heirs male, on his grandson, J. B., on his taking the name of D. in addition to his own, within twelve months after his succes- sion; and in the event of his having no heirs male, then the estate to go to his brother, G. A. B , and his heirs male, he taking the name of D. ; it was held by the Master of the Rolls of Ireland that an executory trust was created which the Court directed to be car- ried out by a settlement with limitations to the several devisees for life, and with remainders to their sons in tail male successively: Duncan v. Bluett, 4 Ir. Eq. 469; see also Parker v. Bolton, 5 L. J. (N. S.)Ch. 98. AY here, however, the trusts and limitations of land to be purchased by trustees are expressly declared by the testator, that is to say, ■ where the testator has been, what is called his own conveyancer, it has been decided that the Court has no authority to make them different from what they would be at law. Thus, in Austen v. Taylor, 1 Eden, 361, land was devised to trustees in trust to pay an annuity; and subject thereto in trust for A. for life, without im- peachment of waste, remainder to trustees to preserve contingent remainders, remainder to the heirs of the body of A., remainder to the testator's right heirs; and the residue of the testator's personal 100 LORD GLENORCHY V. BOSVILLE. * 33 f estate was to be laid out in the purchase of lands which should thereafter remain, continue, and be, to, for, and upon such and the *like estate or estates, uses, trusts, intents, and p,ur- [*32] poses, and under and subject to the like charges, restrictions, and limitations, as were by him before devised, limited, and de- clared of and concerning his lands and premises last before devised, or as near thereto as might bo, and the deaths of persons would admit. Lord Norfldngton distinguished the case from Papillon v. Voice, on the ground that the testator refers no settlement to his trustees to complete, but declares his own uses and trusts, which being declared, ho knew no instance where the Court had proceeded 80 far as to alter or change them; and he therefore held that A. was entitled to an estate tail in the lands to be purchased; and see East V. Twyford, 9 Hare, 713, 783, 4 Ho. Lo. 517; Franks \. Price, 3Beav. 1^2; Rochford v. Fitzmaurice, 1 C. & L. 172, 2 Dru. & Warr. 21; Doncaster v. Doncaster, 3 K. & J. 20. See, however, Meure v. Meiire, 2 Atk. 265; Harrison v. Naylor, 2 Cox, 247; Green V. Stephens, 17 Ves. 7(); Jervoise v. Duke of Northumberland, 1 J. & W. 572; In re Nelleifs Tnists, W. N., 1877, p. 120; 20 W. R. 88. The word "issue" as observed by Lord Talbot in Lord Glenorchy v. Bosville, is both a word of purchase and of limitation ; but the word "heirs" is naturally a word of limitation. In executory trusts in wills, therefore, it will be seen, upon examining the cases, that where the word "issue" is made use of, Courts of equity will more readily decree a strict settlement, than where the words "heirs of the body" have been used. See Meure v. Meure, 2 Atk. 205; Ash- ton V. Ashton (cited in Bagshaic v. Spencer,) 1 Coll. Jur. 402 Home V. Barton, Coop. 257; Dodson v. Hay, 3 Bro. C. C. 405 Stonor V. Cunven, 5 Sim. 264; Crozier v. Crozier, 2 C. & L. 311 Haddelsey v. Adams, 22 Beav. 266. "Wherever in executory trusts, in wills, the words "heirs of the body" or "issue," are construed as words of purchase, they will be held to include daughters as well as sons, and the settlement, as in Lord Glenorchy v. Bosville, will be decreed to be made in default of sons and their issue upon daughters, as tenants in common in 'tail general, with cross remainders between them; Bastard v. Proby, 2 Cox, 6. Where a testator devised his estates to trustees, in trust, to settle and convey the same to the use of or in trust for G. R., who had then no issue, for life, without impeachment of waste, with remain- der to his issue in tail male in strict settlement, Sir L. Shadwell, V. C, held, that the estates ought to be settled upon G. R. for life, without impeachment of waste, with remainder to his sons suc- cessively in tail male, with remainder to his daughters as tenants in common in tail male with cross remainders in tail male; * Trevor v. Trevor, 13 Sim. 108. This decision was affirmed [ * 33 ] . in the House of Lords: 1 H. L. Cas. 239. See also Shelton 101 * 34 LOKD GLENORCIIY V. BOSVILLE. V. Watson, 16 Sim. 543; Coape v. Arnold, 2 Sm. & GifP. 311, 4 De G. Mac. & G. 574. Where a testator directed his trustees to purchase lands in certain counties to he settled, on the death of the eldest son of J. S. (which event happened) to the use of every son of J. S. then living, or who should be born in the testator's lifetime, and the assigns of such son during his life, with remainder to trustees to preserve contingent remainders, bat to permit such son and his assigns to receive the rents during his life, and after his decease to the use of such son's first and every other son successively in tail male, and on failure of such issue, to the use of the testator's right heirs. It was held by Lord Romilty, M. R., that the younger sons of J. S. took as tenants- in-common for life with remainder as to each son's share to his first and other sons in tail male with cross remainders over; Surtees v. Surtees, 12 L. R. Eq. 400. Whenever a strict settlement is decreed, limitations to trustees to preserve contingent remainders will if necessary be inserted: Stam- ford V. Hobart, 3 Bro. P. C. 31, Toml. ed., 1 Atk. 593; Baskerville V. Baskerville, 2 Atk. 279; Hai^risou v. Naylor, 2 Cox, 247; but since the passing of the Law of Property Amendment Act (8 &9 Vict. c. 106), (repealing 7 & 8 Vict. c. 76, s. 8), such limitations are in some cases unnecessary (see s. 8.) And now by 40 & 41 Vict. c. 33 (which passed on the second of August, 1877), it is enacted that "every contingent remainder created by any instrument executed after the passing of this act, or by any will or codicil revived or republished by any will or codicil executed after that date, in tenements or hereditaments of any tenure, which would have been valid, as a springing or shifting use or executory devise or other limitation, had it not bad a sufficient estate to sup- port it as a contingent remainder, shall, in the event of the partic- ular estate determining before the contingent remainder vests, be capable of taking effect in all respects as if the contingent remainder had originally been created as a springing or shifting use or execu- tory devise or other executory limitation," s. 1. But such limitations may be inserted, with the object of the trus- tees interposing to prevent wilful waste and destruction on the part of the tenant for life before any remainderman comes in esse. See Garth v. Cotton, and note post. Sometimes, moreover, when such settlement is decreed, the freehold will be vested in trustees, [ * 34 ] during the life of the tenant for life {Woolmore v. *Burrou-s, 1 Sim. 512): but the Court has refused to appoint a pro- tector to the settlement; Bankes v. Le Despencer, 11 Sim. 508, 527. For the manner in which a direction to entail real and personal estate will be carried into effect. See Tennent v. Tennent, 1 Dru. 161; Jervoise v. Duke of Northumberland, 1 J. & W. 559; Graves \. Hicks, 11 Sim. 536; Randall \. Daniel, 24 Beav. 193; andseeSealey V. Stawell, 2 I. R. E. 326; 9 I. R. E. 499. [Estates tail are abolished and turned into estates in fee simple 102 LORD GLENORCIIY V. BOSVILLE. * 6.) in New York, Indiana, Michigan, Wisconsin, Minnfisota, Virginia, "West Virginia, North Carolina, Kentucky, Tennessee, California, Georgia, Dakota, Alabama, and Mississippi. In all of these, and also in Penn- sylvania and New York, a grant or devise in tail creates a fee simple. In Arkansas, Colorado, Missouri, Vermont, and Illinois, estates tail are made a life estates. In the following Stat© and Territories the laws are silent, and es- states tail would logically seem to be preserved as at common-law, but presumably they would not be recognized by the Courts: South Carolina, Idaho, INIontana, Wyoming, Washington, Oregon, Texas, Nevada, Kansas, Iowa, Oregon and Now Hampshire.] As to an entail directed to be made of land in Scotland, see Gra- ham v. Stewart, 2 Macq. H. L. Cas. 295. As to the settlement to be made when estates are directed, as far as the law will permit, to be strictly settled so as to go with an ancient barony, see Bankes v. Le Despencer, 10 Sim. 577, 11 Sim. 508; or to go in a course of entail to correspond as nearly as may be with the limitations of a modei'n barony, the patent conferring which contained a shifting clause upon the holder of the barony becoming entitled to an earldom: Sackville-Westv. Viscount Holmes- dale, 4 L. R. Ho. Lo. 543, reversing Viscount Holmesdale v. West, 3 L. li. Eq. 474; and see Viscount Holmesdale v. West, 12 L. R. Eq. 280; Cope v. Earl de la Warr, 8 L. R. Ch. App. 982. And where a trust for the entail of lands is executory, and to be carried into execution by the Court, it will direct a conveyance of such lands notwithstanding they are gavelkind to be made accord- ing to the rule of common law upon first and other sons successively in tail and not according to the custom of gavelkind, Roberts v. Dixivell, 1 Atk. 607, 609, 610. Where real and personal property were by will directed to be set- tled upon the same trusts, the Court did not think itself authorised, through the medium of a trust for sale, to settle the real estate as personalty: Turner v. Sargent, 17 Beav. 515, 520. Where in a will there are directions for a settlement, in terms which are ordinarily construed to create a joint tenancy, the Court has no authority, as in the case of marriage articles, with the same directions, to carry them out by giving a tenancy in common in the settlement, unless there is something to indicate that a tenancy in common was intended: Marryat v. Toicnty, 1 Ves. 102; Si/nge v. Hales, 2 Ball & B. 499. Although in the ordinary construction of a gift by will to a wife and children, they would take as joint tenants (Nevill v. Neinll, 7 L. R. Ch. App. 256, 257), where there has been a direction to '^^seciire^' the fund for the benefit of the wife and children, the Court has laid hold of the word "secure," as indicating an intention that the fund should be settled in the usual mode upon the wife for life, * with remainder to her children. Combe v. Hughes, 14 L. [ * 35 ] R. Eq. 415, see also Bustard v. Saunders, 7 Beav. 92. 103 * 3G LORD GLENORCIIY V. BOSVILLE. As to the construction which will be put upon the word " fam- ily," in case of executory trusts in a will, see White Y.Briggs, 2 Ph. bS'S. There a testator directed that after the death of his wife (to whom he gave a life interest in all his property both real and personal), his nephew, C' W., should " be considered heir to all his property not otherwise disposed of," and added, that, " having had little in- tercourse with him, and being apprehensive that his habits required some control, he directed that whatever portion of his property might thereafter be possessed by him, should be secured by his ex- ecutors for the benefit of his family ; " and he " urged upon his ex- ecutors to consider it an indispensable obligation to secure his es- tate in the nature of a trusteeship for the parties who might be in terested thereafter." It was held, by Lord Cottenham, C, that the real estate should be settled on the nephew for life, with remainder to his sons successively in tale male, with remainder to his daugh- ters as tenants in common in fee ; and that the personal estate should be settled upon the nephew for life, with remainder to all his children as joint tenants, with a proviso that, in the event of all the children dying under twenty-one, and in the case of daugh- ters unmarried, and in the case of sons without lawful issue, the personalty should be held in trust for the nephew absolutely. A direction to trustees to settle property upon a wife of the tes- tator's son, should he marry, has been held in the absence of words indicating an intention to restrict the jointure to the wife of a first marriage, to authorise the settlement of a jointure upon the wife of a second marriage : Mason v. Mason, 5 I. K. Eq. 288. Where a testator directed that his daughters' shares of personalty under his will should be " settled upon themselves strictly ^^ (with- out any mention being made of children), it was held by Lord Romilly, M.R., that the income of each daughter's share should during the joint lives of herself and her husband, be paid to her for life, to her separate use, without power of anticipation ; and if she died in the life of her husband, then her share should go as she should by will appoint, and in default of appointment, to her next of kin, exclusively of her husband ; and if she survived her husband, then to her absolutely ; Loch v. Bagley, 4 L. R. Eq. 122. Although there may be no mention of children in a direction to settle, it seems that the settlement may be extended to them when such appears to be the intention of the testator. See [ * 36 ] * Dnckett v. Thompson, 11 L. R. L 424. There a bequest of £2000 was made for the benefit of a feme sole, "to be paid upon her marriage, and to be settled upon her by her settlement," the interest to be paid to her in the meantime; and in case she should not marry before attaining the age of thirty-five years, the principal sum to be paid to herself. The legatee married under the age of thirty -five years and applied for payment of a sum of. money in Court, which represented the legacy. It was held in Ire- 104 LORD GLENORCUY V. BOSVILLE. * dl land by Chatterton, V.-C, that a settlement should be made of the legacy upon the legatee and her children. As to the mode of settlement, where money is bequeathed to daughters " to be settled on them independent of their coverture, and added to the money already settled on then) on their several marriages," see Eaatace v. Robinson, 7 L. 11. Ir. Ho. But if a sum be bequeathed to a daughter, with a general direc- tion merely that it is to be settled on marriage, the Court will not, it seems, act upon such vague instructions, and the daughter will take the sum absolutely. Thus, in a case where a testator by his will directed his pro])erty to be divided into nine shares, and gave one and a half share to each of his two daughters, " to be settled on themselves at their marriage," and the two daughters, who were infants at the testator's death, having attained twenty- one, and being •unmarried, it was held by Bacon, V.-C, that they were entitled to their shares absolutely, and that there was notrustfor a settlement which Ihe Court could execute : Magruth v. Moreliead, 12 L. R. Eq. 491. See also and consider Laing v. Laiug, 10 Sim. 315 ; Kenner- ley V. Kenncrk'ij, 10 Hare, 160 ; Munt v. Ghjnes, 41 L. J. Ch. 639. "When however the testator's intention is shown that the childrpn of the legatee should take under a settlement which he directs to be made of the legacy, the Court will ordinarily direct a settlement upon the legatee for life, with a power to appoint among his chil- dren, with limitations in default of appointment to children who being sons attain twenty-one, or being daughters attain that age or marry, as tenants in common : Taggart\. Taggart, 1 Sch. & L. 84; Young v. Macintosh, 13 Sim. 445 ; Stanley v. Jacknian, 23 Beav. 450 ; Cogan v. Duffield, 2 Ch. D. 44 ; Oliver v. Oliver, 10 Ch. D. 765 ; Goivan v. Goican, 50 L. J. Ch. 248 ; Eustace v. Robinson, 7 L. R. Ir. 83. In Turner v. Sargent, 17 Beav. 515, the testator, after directing a settlement to be made of real and personal property upon his daughter for life, added, that it was "to be secured for the benefit of her children, if more than one, equally, after her death, so that * the issue of any su3h child dying in his daughters [ *37 ] lifetime might take his or her parent's share, and in default of such children or other issue, then to his son W. absolutely." Sir J. Romilly, M. R., directed a settlement to be made according to which, after the decease of her daughter, the property was to be in trust for her children ; but if any child died in her lifetime, leav- ing children or remoter issue who should be living at her death, such children or remoter issue should take the share of the child of the testator's daughter so dying, per sfiVpes, but inter se, as tenants in common, with limitations in the natiu'e of cross remainders in favour of the children and issne who should survive the testator's daughter, as respected the share of any child dying in her lifetime without leaving issue, and as respected the share of any issue dying in her lifetime. And if no child cf the testators daughter or issue 105 * 38 LORD GLENORCHY V. BOSVILLE. of any deceased child should be living at her decease, there was to be an ultimate trust for W., so that the death of the testator's daughter was the period or event at which the vesting of the prop- erty in the children's issue, or in the legatee and devisee over, was to be ascertained. And where trustees have been entrusted with a discretion as to the manner in which the settlement is to be made, a power may be given to the legatee to appoint a life interest in the amount settled to her husband. Charlton v. Rendall, 11 Hare, 296, posf, p. 46. The ultimate trusts of a settlement directed to be made upon a legatee and her issue (excluding her husband) will be as the lega- tee should by will appoint, and in default of appointment to her absolutely. Stanley v. Jackman, 23 Beav. 450. Where a fund was by will bequeathed to a man till married, and after his marriage to be settled on his wife and children, a settle- ment was ordered to be made on the husband for life, remainder to the wife for life, remainder to the children as they should by deed appoint, remainder as the survivor should by deed or will appoint, but if the'husband was the survivor, he was to have power to ap- point to his children by a future marriage. In re Goivan, Goivan V. Goivan, 17 Ch. D. 778, 780. See Form of judgment, ib. 780. Such settlement may be made by the judgment, but it should bear the usual settlement stamp, ib. Chattels directed by will to go in strict settlement.^ — Where chat- tels are given by will, and are directed to go by reference to limi- tations of real estate in strict settlement, to be enjoyed by a peer and his successors and go with the title, or to go as heir- [ * 38 ] looms, either simply or '■^ as far as the rules of laiu * and equity ivill permit,''^ Courts of equity, even although the le- gal estate may be in executors, will not construe the trusts of the will as executory, and prevent the chattels vesting absolutely in the first tenant in tail upon his birth, (although he die immediately afterwards) (See Foley v. Burnell, 1 Bro. C. C 274; Vaughan v. Bursle)n,2 Bro. C. C. 101; Duke of Newcastle v. Countess of Lin- coln, 3 Ves. 387; Carr v. Lord Erroll, 14 Ves. 228; Burrell v. Crutchley, 15 Ves. 544; Roivland v. Morgan, Q Hare, 463; affirmed on appeal, 2 Ph. 764; In re Johnston, Cockerell v. Earl of Essex, 26 Ch. D. 538, overruling Goiuer v. Grosvenor, Barn. Ch. Rep. 54; S. C, 5 Madd. 337; Trafford v. Trafford, 3 Atk. 347. See also Doncaster V. Doncaster, 3 K. & J. 26; Evans v. Evans, 17 Sim. 108; Stcqyleton V. Sfapleton, 2 Sim. N. S. 212; and Tolleniache v. Coventry, 2 C. & F. 611; S. C, 8 Bligh, N. S. 547; oveiTuling Lord Deerhurst v. Duke of St. Albans, 5 Madd. 232; Gosling v. Gosling, 1 De G. J. & S. 1; 1 L. Ep. Ho. Lo. 279, nom. Christie v. Gosling; In re Johnson'' s Trusts, 2 L. R. Eq. 716; Countess of Harrington v. Earl of Har- rington, 5 L. R. Ho. Lo. 87). [Equitable estate tail in possession or remainder, and all remainders and reversions thereon may be bar- 106 LORD GLENORCUY i;. BOSVILLE. * 39 red like legal estates, and the person to whom an equitable estate tail is so conveyed is entitled to have the fee simple so created con- veyed to him by the person having the legal estate. Stimson''s Am, Statue Laws, Sec. 1313.] And even where the future interest of such tenant-in tail is contingent it is transmissible on his death to his personal representative.^ (In re Cresivell, Parkin v. Cresicell, 24 Ch. D. 102), unless the being in existence Avhen the contingency happens is an essential part of the description of the person who is to take, lb. 107, and the cases there cited. But if a tenant for life of the estate lower in the settlement has issue before the tenant for life in possession, the chattels will not vest indefeasibly in such issue: Hogg v. Jones, 32 Beav. 45. Where chattels are directed to go to the person entitled in pos- session to real estate, in the absence of an intention expressed that they are to go with the real estate, or if there is no direction that they are to go as heirlooms with a title the chattels will vest in the first taker, whether he be tenant for life or tenant-in-tail, Trafford V. Trafford, 3 Atk. 347, 348, 349; In re Johnson's Trusts, 2 L. K. Eq. 710; Mackwortli v. Hinxman, 2 Keen, 658. AVhere, however, there is such intention the tenant for life of the real estate, or the first possessor of the title, when the chattels are to go with the title, will take only an estate for life in the chattels, Trafford v. Trafford, 3 Atk. 347; Montagu v. Lord Inchiquin, 23 "W. E. 592. Where chattels are bequeathed as heirlooms, and directed to go to such person as shall first attain twenty-one and be entitled to an estate tail in possession in the settled estate, they will vest abso- lutely in a tenant-in-tail in remainder who attains twenty- one * {In re Johnson's Estate, 2 L. R. Eq. 716; Martelli v. [ * 39 ] Holloway, 5 L. R. Ho. Lo. 532), and if the will contained no limitation as to attaining twenty-one, the tenant in tail in remain- der would take a vested interest in the chattels immediately on his birth. Foley v. Burnell, 1 Bro. C. C. 274; 4 Bro. P. C. 319. Where, however, the intention that no person shall take the chat- tels absolutely, who does not live to become entitled to the posses sion of the real estate, is clearly expressed, the court must execute that intention. Potts v. Potts, 3 J. & L. 353, 1 H. L. Cas 671. See also Trafford v. Trafford, 3 Atk. 347; Foley v. Burnell, 1 Bro. C. C. 101; Lord Scarsdale v. Curzon, 1 J. & H. 40; Sackville-West V. Viscount Homesdale, 4 L. R. Ho. Lo. 543. [In executory trusts created by will, there is no presumptions as to the intentions of the testator. McPhe^'son v. Snowden, 19 Md. 197; Allen v. Anderson, 49 Pa. St. 333; Robertson v. Johnston, 36 Ala. 197.] In order to prevent the separation of the chattels, real or per- sonal, which takes place when they vest absolutely in a tenant-in- tail on whose death they go to his next of kin, while the freeholds go to those entitled under the limitations in the will, it is usual to 107 * 40 LORD GLENORCHY V. I30SVILLE. limit over the chattels in case any such tenants-in-tail (being the sons of persons in esse) should die under twenty-one and without inheritable issue to the person who in that event would succeed to the freeholds, or according to a forro more frequently used, the personalty should be subjected to the same limitations as the free- holds, with a declaration that it should not veet absolutely in any tenant-in-tail by purchase until twenty-one, or death under that age leaving issue inheritable under the entail. But even under these provisions a separation of the chattels from the freeholds would take place in the event of the tenant for life dying under twenty-one, leaving inheritable issue, for in such case the tenant-in-tail would take the chattels absolutely, while the free- holds would go to him in tail. The best form to adopt in order to prevent this result is a de- claration that the chattels should not vest absolutely in any tenant- in-tail h J purchase, who may die under twenty-one, but shall at his death devolve as nearly as possible in the same manner as the free- holds. 1 Davidson's Convey. 464 and see Harrington v. Harring- ton, 3 L. K. Ch. App. 564, 573; 5 L. R. Ho. Lo. 87, 102. "Whatever form a conveyancer may adopt in such cases, care should be taken that the vesting of the chattels should not be suspended for such a period as to offend against the rule with regard to per- petuities. Thus if leaseholds or chattels personal are vested in trustees upon trusts correspondiug with land in strict settlement, but so that they are not to vest in any tenant-in-tail in possession till he shall attain the age of twenty-one, the period of [ * 40 ] ^vesting is to remote ( Ibetson v. Ibetson, 5 My. & Cr. 26; Lord Dungaunon v. Smith, 12 C. & F. 546; Ker v. Lord Dun- gannon, 1 Dru. & Warr. 509; Harvey y. Harvey, 5 Beav. 134; Wain- man V. L'ield, Kay, 507; Harding v. Nott, 26 L. J. (Q. B.) 244), and it is immaterial that the intermediate rents and profits of the leaseholds are given to persons, answering one of these descrip- tions, viz., that of a tenant-in-tail in possession, until a person an- swering to the other description, viz. that of being of the age of twenty-one years, comes into existence, lb., and to see note to Cadell V. Palmer, L. C. R. Prop. 481, 3rd. ed. Where moreover a trust is created to secure the devolution of chattels as heirlooms, any limitations which are to take efPect by way of postponement or defeasance of an absolute interest are subject to all the rules which govern the validity of conditions sub- sequent. Such limitations, therefore, must be certain, not only in expression, but also in operation, and it is essential to their validity that it should be capable of ascertainment at any given moment of time, whether the limitation has or has not taken effect. See Jn re Viscount Exmouth, Viscount Exmouth v. Praed, 23 Ch. D. 158; there a testator who has a peer, bequeathed chattels to trustees, upon trust to permit and suffer the same to go and be held and en- joyed with the title, so far as the rules of law and equity admit, by 108 LORD GLENORCHY" V. BOSVILLE. *41 the person who for the time being should bo actually possessed of the title, in the nature of heirlooms, and so that no person in ex- istence at the time of the testator's decease, or born in duo time afterwards, and afterwards coming to the title should have any other than a life interest in the same, and so that no person should acquire an absolute interest in the same till the ex{)iration of twenty-one years after the decease of all such persons as should be in c^xistence at the time of the testator's decease, and afterwards attaining the title, It was held by Fry, J., that the latter clause of the limitations was void for uncertainty in operation, and that the lirst person born after the death of the testator who attained the title, acquired an abso- lute interest in the chattels, notwithstanding that there was still living a person who was alive at the testator's death, and who Avas capalDle of inheriting the peerage. Where, however, personalty is settled with reference to the limi- tations of real estate, there is a direction to the eflfect that the per- sonalty shall not vest in any tenant-in- tail by purcliase until he shall attain twenty-one, such direction will not offend the rule against perpetuities, inasmuch as a tenant-in-tail by purdcase must come into esse during the life of the parent tenant for life, * Christie v. Gosling, 1 L. R. Ho. Lo. 279; affirming Gosling [ * 41 ] V. Gosling, 1 De G. J. & S. 1, reversing the decision of Lord Romilly, reported 32 Beav. 58; See also Marfelli v. Holloway, 5 L. E. Ho. Lo. 532; affirming the decision of Sir J. Stuart, V.-C, re- ported 6 L. 11. Eq. 523; nom. Holloicay v. Webber. And it seems that the words "tenant-in-tail" alone may from the context have the same meaning as tenant-in-tail /^^pK/-c/(ase. Chris- tie V. Gosling, 1 L. R. Ho. Lo. 279, dissentiente Lord St. Leonards. It is somewhat douljtful as to the effect of the words "as far as the rules of law and equity permit" in restraining such gifts within the rule against perpetuities. See Tollemache v. Earl of Coventry, 2 C. & F. 611; 8 Bl. N. S. 547; 12 C. & F. 555 n. Kerx. LordDun- gannon, 1 Dr. Warr. 536; Mackivorth v. Hinxman, 2 Keen, 658. It is clear, however, that that these words do not make the trust of chattels an executory trust and not a direct gift, so as to enable the court to carry out the general intent of the testator, and without any direction to that effect, carry over the chattels within certain limits to go along wi.th real estate on a tenant-in-tail dying under twenty-one without issue. Countess of Harrington v. Earl of Har- rington, 5 L. R. H. L. 107. Although as we have seen the words "so far as the rules of law and equity will permit" will not make a deviseor bequest executory, or correct a gift which in terms infringes the rule again&t perpetuity {Tollemache v. Earl of Coventry, 2 C. & F. 611; 8 Bli. 547), they may be fairly referred to when a construction warranted by the words used is impugned on the score of inconsistency with the intention of the testator. Harrington v. Harrington, 3 L. R. Ch. App. 564, 574, 5 L. R. Ho. Lo. 102, 107. 109 * 42 LORD GLENORCHY V. BOSVILLE. [ If a will or deed sets forth a trust so definitely that it only re- mains for the trustee to execute it as directed, it is termed a'n exe- cuted trust and is subject to the rules controlling legal estates. But if the trustee receives a trust which is subject to future events or contingencies, and the directions regarding it are informal or com- plete it is an executory trust, because it must be shaped and adapt- ed to the intentions of the settlor or testator. MuUanyv. Mullany, 40. N. J. Eq. 16; Phila. v. Girard, 45 Pa. St. 9; Edmondson v. Dijson, 2 Kelly, 307.] "Where chattels are by will creating an executory trust directed to be settled as heirlooms to go with a title, the court will mould the settlement so as to avoid any infringement of the rule against per- petuities, and will give life interests successively to the holder of the title, and his successors living at the death of the testator. See In re Johnston, Cockerell v. Earl of Essex, 26 Ch. D. 538. There the testatrix bequeathed the contents of her house to trustees upon trust that they should in the first place, select and set aside a col- lection of the best paintings, statuary and china for the Earl of Es- sex (the sixth Earl) and his successors, to be held and settled as heirlooms and to go ivith the title. It was held by Chitty, J., that the bequest to the trustees was a clear direction to settle, and created an executory trust, and a settlement was directed [ * 42 ] (to be settled in Chambers) * giving a life interest to the sixth Earl with remainder to the next Earl (who was living at the death of the testatrix) for his life. The same will be done where leaseholds are by executory trust devised upon trusts corresponding with those of real estates in strict settlement. See Miles v. Harford, 12 Ch. D. 691; there freeholds were devised to A. for life, remainder to his first and other sons in tail-male, with a shifting clause, which provided that if A. or his is- sue male should become entitled to a certain other .estate, the de- vised estate should go over, and leaseholds were given upon such trusts and purposes as, regard being had to the difference of tenure, would most nearly correspond with the uses of the freeholds. It was held by Sir G. Jessel, M. R., that this was an executory trust. " If," said his Lordship, "we imported the limitations of the free- hold estate into the leaseholds they would fail together after the gift to the first. Then when you write it out you are to have re- gard to the difference of the tenure. What does that mean ? ^yhen according to the tenure it will not take effect you cannot put it in, that is all. It will be absurd to suppose that you have regard to the differences of the tenure to make them best correspond, when you simply make them null and void. The testator knew that some- thing'will not work, and he says you are to make them correspond having regard to that — that is, having regard to the effect of the tenure on the limitation or the proviso. But when you see the ten- ure is of such a kind that it cannot be done by literally repeating the provisions, then you must modify them accordingly." 110 LOUD GLEXORCIIY V. BOSVILLi:. * 43 Although it has been doubted whether the Court would limit a sum of money in the same way as real estate, where there was no real estate to guide the limitations (Green v. Ekins, 2 Atk. 478), the objection, if tenable, does not apply to the case of family jew- els, limited by executory trust as heirlooms, ^ao Shelley v. Shelley, L. 11. Eq. 540. There jewels were bequeathed to the testatrix's nephew, John Shelly, "and to be held as heirlooms by him, and by his eldest son on his decease, and to go and descend to the eldest son of such eldest son, and so to the eldest son of his descendants, as far as the rules of laiv or equity will permit. And / request my said nepheiv to do all in his power, by his ivill or otherwise, to give effect to this my ivish as to these things so directed to go as heirlooms as aforesaid.'" It was held by Sir W. Page Wood, V.-C, that a valid executory trust was created for John Shelly for life, with re- mainder to Edward Shelley, his eldest son, for life; and upon the death of Edward Shelley, in trust for Edward Shelley's eldest son, to be a vested * interest in him when he should at- [ * 43 ] tain twenty-one; but if he should die in his, Edward Shel- ley's lifetime, or after Edward Shelley's death, without having at- tained twenty one, leaving an eldest sou born before Edward Shelley's death, in trust for such last mentioned eldest son to be a vested interest when he should attain twenty- one; and in case the jewels should not become vested in any persons .under the limitations aforesaid, then (subject to the life interest of Edward Shelley) in trust for John Shelley absolutely. The execution of a disentailing deed of the real estate by a tenant in tail, who does not live to become entitled to the chattels, will not prevent their vesting in the person who would have been enti- tled to the real estate in possession if such disentailing deed had not been executed: Hogg v. Jones, 32 Beav. 45. Where chattels were bequeathed to executors to hold as heir- looms to be used by the person entitled to a house under a deed of entail (which was non-existent), and the testator died absolutely entitled to the house, it was held that the heirloom passed to the testator's heir-at-law: Marquis of Bute v. Ryder, "W. N., 2 August, 1840, p. 179. It may be here mentioned that by sect. 37 of the Settled Land Act, 1882 (45 & 46 Vict. c. 38), "where personal chattels are set- tled on trust so as to devolve with land until a tenant in tail by purchase is born or attains the age of twenty-one years, or so as otherwise to vest in some person becoming entitled to an estate of freehold of inheritance in the land, a tenant for life of the land may sell the chattels or any of them" (sub-s. 1 ) ; the money arising from the sale to be invested as therein mentioned (sub-s. 2), and it is not to be made without an order of the Court (sub-s. 3). See In re Brown's Will, ^y. N., 5 July, 1884, p. 157. As to the sale of heirlooms under the Act, see In re Houghton Estate , SO Ch. D. 102; In re Duke of Marlborough'' s Settlement, Duke of Marlborough 111 * 44 LORD GLENORCHY V. BOSVILLE. V. Majoribanks, 30 Ch. D. 127. A baronetcy is it seems an incor- poreal hereditament, and as such is within the interpretation clause (s. 2, sub-s. 10) of the Settled Land Act, 1862, and the Court has jurisdiction under that Act to direct a sale of heirlooms settled so as to devolve with the dignity; In re Sir J. Rivett Carnacs Will, 30 Ch. D. 136. Doctrine of cypres, as apjoUcable to executory trusts.l^ — AVhere an executory trust, if carried literally into effect, would be void for illegality, as where it would infringe the rule against perpetuities, the Court, in order to carry the testator's intention into effect as far as possible, or, as it is termed, cy-pres, will direct a settlement to be made as strictly as the law will permit. [In North Carolina, Iowa, Alabama, Connecticut, and Indiana, the cyiwes doctrine has been repudiated. Carter v. Balfoiu- 19 Ala. 814; Grrimes u Har- mon 35 Ind. 198; White v. Fisk 22 Conn. 31; Lepage v. McNamara, 5 Clarke (la.), 147; McAnley v. Wilson, 1 Dev. Eq. 276. In Penn- sylvania the doctrine has been admitted to a limited extent by statute 1855, P. L. 331; and see Zeisweiss v. James, 13 P. F. Smith, 465. In all of the New England States the doctrine has been di- rectly countenanced or left an open question. Howard v. Peace Society, 49 Me. 302; Brown v. Concord, 33 N. H. 296; Burr v. Smith^ 7 Vt. 287; Jackson v. Phillips, 14 Allen, 570; Derby v. Der- by, 4 R. I. 439. In New Jersey the question is not settled, but it has been said that a bequest which would be enforced in England would not be carried into effect in that State, owing to indefinite- ness of the object, or impracticability of its exact execution, Thom- son's Exr's, V. Norris, 5 C. E. Green, 522. In Illinois and Missouri the doctrine has been approved, Gilman V. Hamilton, 16, 111, 231; Academy i'. Clem-ns, 50 Mo. 167. As to the question is Maryland, Virginia, New York and South Carolina, see Pringle v. Dorsev, 3 S. C. (N. S.)509; Bascom v. Al- bertson, 34 N. Y. 584; Gallego u. Atty.-Gen., 3 Leigh, 450; Wilder- man V. Baltimore 8 Md. 551.] Thus, in Humberston v. Humber- ston{l. P. W^ms. 332; S. C. 2 Vern. 737; Prec. Ch. 455), where there was a devise to a corporation in trust to convey to A. for life, and afterwards, upon the death of A., to his first son for life, and so to the first son of that first son for life, with remainder, in default of issue male of A., to B. for life, and to his sons and their [ * 44 ] sons in the same manner; Lord Coicper said * that though the attempt to create a perpetuity was vain, yet, so far as was consistent with the rules of law, it ought to be complied with; and he directed that all the sons already born should take estates for life, with limitations to their unborn sons in tail. See Williams v. Teale, 6 Hare, 239, and cases there cited; Lyddon Ellison, 19 Beav. 565, 573; Peard v. Kekeivich, 15 Beav. 173; Hampton v. Holman, 5 Ch. D. 183; Miles v. Harford, 12 Ch. D. 691; see, however, Blagrove v. Hancock, 16 Sim. 878. [There ap- 112 LORD GLENORCIiy V. BOSVILLE. * 45 pears to bo no reason why the cy pres doctrine as laid down in Jackson v. Phillips, 14 Allen, 571, should not be approved in all of the States in which the Statute of Eliz. is in force, or its princi- ples have been adopted by the law of the State. See Paschal v. Acklin, 27 Texas, 173; Walker?'. Walker, 25 Ga. 420; Dickson v. Montgomery, 1 Swan (Tenn.), 348; Vidal u. Girard, 2 Howard, 128; Chambers v. St. Louis, 29 Mo. 543; The Supreme Court of the United States in Fountain v. liavenel, 17 Howard, 307, seemed op- posed to the doctrine, but the tendency was the other way in Lor- ings V. Marsh, G Wallace 337.] As to li'hat pnwerfi or provisions will be inserted in settlements di- rected to be made bij the Court.\ — "Where in marriage articles or a will, a settlement is directed to be made with the usual powers or proper powers, a Court of equity will order to be inserted in the settlement powers of leasing for twenty-one years {Hill v. Hill, G Sim. 145; Duke of Bedford v. Marquis of Abercotni, 1 My. <*cCr. VI); powers to grant building or mining leases where the property is lit for those purposes {Hill v. Hill, G Sim. 145); powers of sale and ex- change (Hill V. Hill, G Sim. 13G; Peake v. Pendlington, 2 V. & B. 311; Williayns v. Carter, Sug. Fow. App. 22, 7th edit. See, how- ever, Breivster v. Angell, 1 J. & W. 625; Home v. Barton, Jac. 439); of maintenance and advancement {Mayn v. Mayn, 5 L. K. Eq. 150); of varying securities {Sampayo v. Gould, 12 Sim. 42G); powers of partition where there is any joint property {Hill v. Hill, 6 Sim. 145); powers of appointing new trustees {Lindoiv v. Fleet- n'oorZ, G Sim. 152; Sampayo v. Gould, 12 Sim. 42G); but not a power to raise portions {Higginson v. Barneby, 2 S. & S. 518, and Bee In re Grier's Estate, 4 Ir. Eq. 1, 11, 12; S. C. nom. Grier v. Grier, 5 L. R. Ho. Lo. 688); nor to jointure a future wife {Duke of Bedford X. Marquis of Abercorn, 1 My. & C. 312). But such powers were recently inserted in a case where an estate was directed to bo settled to go along with a barony, and the trustees were to in- sert all such powers as they should consider proper, or as counsel should advise; Sackville-West v. Viscount Hohnesdale, 4 L. R. Ho. Lo. 543, 569; as, however, will be hereafter seen, an intention that such powers should be inserted, might have been implied, j^ost, j). 45. [In marriage articles a settlement will bo made according to the intention of the parties if possible: Gause v. Hale, 2 Ired. Eq. 241; Allen v. Rumph, 2 Hill Eq. 1.] In considering these cases, it ought to be remembered that there is a palpable distinction between powers for the management and better enjoyment of the settled estates which are beneficial to all parties, and powers which confer personal privileges on particular parties, such as powers to jointure, or to raise money for any par- ticular purpose. But powers of leasing, of sale, and exchange, and (where there is any joint property, or there are any mines, or any land fit for building purposes) ^powers of partition, [ * 45 ] 8 WHITE ON EQUITY. 113 * 46 LORD GLENORtUY V. BOSVILLE. of leasing mines, and of granting building leases, are powers for the general management and better enjoyment of the estates, and such powers are beneficial to all parties; Hill v. Hill, 6 Sim. 145. But where the insertion of certain powers is specilicall.y directed, the expression " and other usual powers,'''' coming afterwards will be considerably narrowed (Pearse v. Baron, Jac. 158; Hill v. Hill, 6 Sim. 141; Breicster \. Angell, 1 J. & \V. 625; Home v. Barton, Jac. 439; Higginson v. Barneby, 2 S. & S. 51G); unless it is con- tained in a separate and distinct sentence: Lindoio v. Fleeticood, 6 Sim. 152. A power of varying securities is analogous to a power of sale and exchange: so that where real estate was covenanted to be settled upon the same trusts and with the like powers, as stock settled upon trusts with power of varying securities, a power of sale and exchange of the real estate was inserted in the settlement: Wil- liams V. Carter, 2 Sug. Pow. App. 22, 7th ed. ; Home v. Barton, Jac. 440; Elton v. Elton, 27 Beav. 634. In the absence of express words, if in the instrument directing a settlement an intention that certain powers should be inserted in the settlement may be implied, the Court will direct the introduc- tion of such powers. Thus, if in a will directing a settlement to be made, powers of jointuring and charging w'ith portions are to be given to tenants for life; and in a codicil directing a different set- tlement the will is in other respects referred to as the example or model to be followed; the introduction of powers of jointuring and charging, at any rate where there is full discretion given to the trustees as to the insertion of powers, provisoes, declarations, and agreements, will be authorised: Sackville-West \. Viscount Holmes- dale, 4 L. R. Ho. Lo. 543, 569, reversing S. C nom. Viscount Holmse- dale V. West, 3 L. R. Eq. 474. It seems to have been formerly supposed that where no direction as to the insertion of powers was given, a Court of equity would not, in the absence of any expression from which the intention to include any powers might be inferred, authorise their introduction into a settlement. Wheate v. Hall, 17 Ves. 80; Brewster v. Angell, 1 J. & W. 628. But see Wheate v. Hall, 17 Ves. 80, explained in Wise V. Piper, 13 Ch. D. 853. • In the case, however, of Woolmorex. Burrous, 1 Sim. 518, a power of leasing was in such a case introduced, but the property was in Ireland. In a more recent case, where a testator by his will directed a set- tlement of real and personal property to be made, but gave no di- rection as to pou-ers. Sir John Romilly, M.R., was of opinion [*46] that * the testator by simply directing a settlement, ought to be held to have intended ail the usual powers to be in- cluded. That the settlement, therefore, ought to contain the usual powers of leasing, sale and exchange, and for the appointment of new trustees, together with a receipt clause, and provisions for 114 LORD GLENORCHY V. BOSVILLE. * 47 maintenance, education, and advancement for the children or issue livin<:f at the death of the tenant for life, during their minority: Turner v. Sargent, 17 Beav. 515; and see Byam v. Bjjam, 11) Beav. 58; Wise v. rijjer, 18 Ch. D. 848; Scott v. Stcirard, 27 Beav. 307. Where, under a covenant to settle after-acc^uired property upon the same trusts as personalty Avas settled, or as near thereto as the nature of the property would admit, power to grant mining as well as agricultural leases was ordered by the Court to be inserted in the settlement, the prior owner having granted such leases. Scott v. Steward, 27 Beav. 807. Where a testator had directed, that in the event of the man-iage of his daughter, a certain portion of his property should be secured to her, and the issue of her marriage, by a settlement of some or other good assurance, in such manner as his trustees or trustee for the time being might think lit, the Court, on an application to which the surviving trustee was a party, approved of a power in the set- tlement made on the marriage of the daughter, enabling her to ap- point by will a life estate in the property to her husband: Charlton v. Rendall, 1 1 Hare, 290. So where a father by will directed a fund, given to his daughter, to be settled "upon her and her issue," so that "the same might not be liable or subject to the debts, control, or engagements of any husband" whom she might happen to marry during her lifetime. It was held by Sir John RomiMij, M.Il., that the settlement ought to give the daughter a power of appointment by will in default of is- sue. Stanley v. Jackman, 28 Beav. 450. Where by marriage articles personalty is settled upon the issue of the marriage, it seems that the Court would not direct the inser- tion of a hotchpot clause in a settlement, in the absence of any words in the articles indicating the intention of the parties to in- troduce such clause: Lees v. Lees, 5 I. R. Eq. 549. Under an executory agreement to grant a lease of an hotel with general and usual covenants, clauses, and provisions, it was held, under the circumstances, that the lease ought to contain a power of re-entry on the lessee's becoming bankrupt, or taking the benefit of any Insolvent Act: Haines v. Burnett, 27 Beav. 500. In a recent case, it has been held by the Lords Justices reversing the decision of Bacon, V.-C. (reported 19 L. R. Eq. 591), * that under an agreement for a lease to contain " all usual [ * 47 ] and customary mining clauses," the landlord was not enti- tled to have inserted in the lease a proviso for re-entry on breach of any of the covenants by the lessee, or otherwise than on non- payment of rent: Hodgkinson v. Crowe, 10 L. R. Ch. App. 022. In carrying into effect executory trusts, the question sometimes arises whether tenants for life are or are not to be made dispunish- able for waste. It seems, however, to be now settled that where, in order to give eflPect to the general intention, an estate of inherit- ance is cut down to an estate for life, the Court, in order to giv© 115 * 48 LORD GLENORCHY V. BOSVILLE, the holder of such life estate the utmost power over the property consistent with his estate, makes him dispunishable for waste. Leonard \. Earl of Sussex, 2 Vern. 526; Woolmore v. Burrows. 1 Sim. 512; Bankes v. Le Despencer, 10 Sim. 576; 11 Sim. 508; White V. Briggs, 15 Sim. 17; 2 Ph. 583; Sackville-West v. Viscount Holmesdale, 4 L. E. Ho. Lo. 543. Where, however, a settlement has been directed to be made upon persons in succession, expressly for life, with remainders over in tail, the Court will not insert a clause rendering the successive tenants for life dispunishable for waste, although the insertion of usual and proper provisions for giving effect to the intentions of the person directing the settlement be authorised: Davenjyort v. Davenport, 1 H. & M. 775. Higginsonv. Barneby, 2 Sim. & S. 516; Sackville- West v. Viscount Holmesdale, 4 L. R. Ho. Lo. 543. Nor will it do so where an executory trust for the settlement of freehold estates in " strict settlement " directs, either expressly or by reference to the trusts of other property, that certain persons shall take life estates: Stanley v. Coulthurst, 10 L. R. Eq. 250, where the cases are fully explained in the judgment of Sir B. Malins, V. C. And where a settlement of land has been directed to be made upon a woman on marriage, for her life with a restraint upon antici- pation, it has been held that no clause should be added to the settle- ment, making her unimpeachable for waste, inasmuch as a life es- tate without impeachment of waste would be inconsistent with the restraint on anticipation : Clive v. Clive, 7 L. R. Ch. App. 433. But even in the absence of an express direction, an intention that successive tenants for life should be made dispunishable for waste, may be implied. Thus, if in a will, directing a settlement to be made, the tenants for life are made dispunishable for waste, al- though, by a codicil, a difPerent settlement is directed to be made, if the will is in other respects referred to as the model or [ *48 ] example to be followed, its * provisions will not be disre- garded, and will, at any rate, where there is full discretion given to the trustees as to the insertion of powers, provisoes, decla- rations, and agreements, justify the limitation of life estates in the settlement directed by the codicil, with the same provisions as to waste as were given by the will : Sackville- West v. Viscount Holmes- dale, 4 L. R. Ho. Lo. 543, 576. Where a settlement is directed to be made upon a woman to her separate use to the exclusion of her husband, a clause against anti- cipation will be added. Turner v. Sargent, 17 Beav. 515; Stanley V. Jackman, 23 Beav. 450; Re DunnilVs Trusts, 6 I. R. Eq. 322; Symonds v. Wilkes, 1 1 Jur. N. S. 659. Under Lord Cramvortli's Act (23 & 24 Vict. c. 145), certain powers commonly inserted in settlements, mortgages, and wills, were, in the absence of any directions to the contrary, given to trus- tees, mortgagees, and others. Parts IL and III. (ss. 11-30). 116 LORD GLENORCIIY V. BOSVILLE. * 49 These parts andsections have been repealed by the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), sect. 71, subs. 1. Subs. 2, however, preserves to the full extent the power of sale given by Lord Cramvwth^s Act in cases of mortgages prior to 1882. See Conveyancing Acts by ^\'olstenholme and Turner, 8rd ed. citing Quilter v. Mapleson, 9 Q. B. D 675, 677. Parts L and IV, of Lord CranwcrrWs Act (23 & 24 Vict. c. 145) have been repealed by sect. 64 of the Settled Land Act, 1882 (45 & 46 Vict. c. 38). The Settled Estates Amendment Act, 1877 (40 & 41 Vict., c. 18), commencing on the 1st of November, 1877, repealing and consoli- dating similar Acts, viz., the Act to Facilitate Leases and Sales of Settled Estates (19 & 20 Vict. c. 120); the Act to Amend and ex- tend the Settled Estates Act of 1856 (21 & 22 Vict. c. 77); the Act to Further Amend the Settled Estates Act of 1856 (27 & 28 Vict. c. 45); the Leases and Sales of Settled Estates Amendment Act, 1874 (37 & 38 Vict. c. 33), and the Settled Estates Act, 1876 (39 & 40 Vict. c. 30), gives the Court power to authorize leases of settled estate, ss. 4-12, or to vest such powers in trustees, ss, 13, 14 15, and also gives the Court power to authorize sales of settled estate, and timber, s. 16. It also gives power in the case of settlements made after the 1st of November, 1856, to tenants for life, or for a term of years determinable with a life or lives or for any greater estate (unless forbidden by the settlement), and to tenant by the courtesy, or in dower, or in right of a wife seised in fee, icithout application to the Court to grant leases for twenty-one years, except of the principal mansion house and demesnes, ss. 46, 47, 48. * By 45 & 46 Vict. c. 38, extensive general powers of sale, [ * 49 ] enfranchisement, exchange, partition, and leasing, and also special powers are given to tenants for life, amongst whom are included many limited owners (see s. 2, sub-s. 5; ss. 58, 59, 00, 61, 62) of settled estates. Rectification of Settlement.^ — If a settlement directed to be made by a testator is improperly framed, it may, as in Lord Glenorchy v. Bosville, be rectified by the will; but, with regard to a settlement agreed to be made by articles, if both articles and settlement are made before marriage, the settlement will not in general be controlled by the articles, because, as observed by Lord Talbot in the principal case of Legg v. Goldivire, "when all parties are at liberty, the settle- ment will be taken as a new agreement." And an agreement of an informal character which would have been binding if marriage had taken place immediately on the faith of such a document only, will be considered to be superseded by a formal document prepared before the marriage, which does not take place until after a considerable time has elapsed. See In re Bad- cock, 17 Ch. D. 361. 117 * 50 LORD GLENORCHY V. BOSVILLE. Evidence is, however, admissible to show that articles constituted the tinal agreement between the parties, and that the discrepancy between the articles and settlement arose from mistake, and upon this being proved the Court will rectify the settlement, and make it conformable to the real intention of the parties: Bold v. Hutchinson, 5 De G. Mac. & G. 558, 568; but "in order to justify the C^mrt in taking such a course, it is obvious that a clear intention must be proved; it must be shown that the settlement does not carry into effect the intention of the parties. If there be merely evidence of doubtful or ambiguous words having been used, the settlement it- self is the construction which the parties have put upon those doubtful or ambiguous words:" per Lord Cottenham, C., in The Marquis of Breadalbane v. The Marquis of Chandos, 2 My. & Cr. 739. The Court will only rectify a marriage settlement when the mis- take is shown to be common to both parties The Earl of Bradford V. The Earl of Romney, 30 Beav. 431; Bentley v. Mackay, 31 Beav. 143; Sells v. Sells, 1 Drew. & Sm. 42; Thompson v. Whitmore 1 J. 6 H. 268), and it is essential that the extent of the rectification should be clearl}' ascertained and defined by evidence cotemporaneous with or anterior to the deed: The Earl of Bradford v. The Earl of Romney, 30 Beav. 431. [See Ludington v. Ford, 33 Mich. 123.] And the Court will be guided by what was the intention of the parties at the time when the deed was executed, and not by [ * 50 ] what would have been their * intention if, when they executed it, the result of what they did had been present to their minds: Wilkinson v. Nelson, 9 AV. R. (M. R. ) 393. The Court acts with this caution in rectifying mari'iage settle- ments, and in requiring proof of the exact contract which the parties intended to enter into, because it is impossible to undo the marriage or to remit the parties to the same positions they were in before the marriage. See Jlainfis v. Pepper ell, 5 L. R. Eq. 4, and the remarks of Lord Romilly, M. R. A settlement will also be rectified when an improper settlement has been prepared by, or at the instance, of one of the parties, who undertook to prepare a proper one, especially if it were made con- trary to the intention of the party whose property was settled (Corley v. Lord Stafford, 1 De G. & J. 238; Clark v. Girdivood, 1 Ch. D. 9); and a fortiori where the party who prepared the settle- ment in his own favour was the solicitor to the other party and the other party and the only one employed: Lovesy v. Smith, 15 Ch. D. 655. It has recently been laid down as the rule of the Court that where a marriage settlement or any other contract is in an improper form, and not in accordance with the intention of the j^arties, then the intention of the parties ought to be carried out by putting the instrument into that form which will effectuate the intention : Von Witzleben v. Siltzer, 15 Ch. D. 579, cited; Welman \. IVelman, 15 Ch. D. 570. 118 LORD GLENORCIIY V. BOSVILLE. * 51 Ab to cases -whore tho Court has rectified settlements, see Ilamil V. White, 3 J. & L. GU5; Wilson v. Wilson, 15 Sim. 487; 1 H. L. Ca. 538; Walsh v. Trevannion, 10 Sim. 178; Murray v. Parker, 19 Beav. 305; In re Morse's Settlement, 21 Beav, 174; Torre v. Torre, 1 Sm. & G. 518; Walker v. Armstrong, 21 Beav. 284; 8 De. G. Mac. & G. 531; Natjlor\. Wright, 5 AV. R. 770 (V.-C. S.); Woltc.vbc.ekv. Barroiv, 23 Beav. 423; Tomlinson v. Leir;/i, 14 W. li. (M. li. ) 121 ; and see The Earl of Malmesbury v. The Countess of Mahtiesbury, 31 Beav. 407, where a power of sale in a settlement was rectified, on proof that it was not conformable with the contract; King v. King-Harmon, 7 Ir. R. Eq. 440, where a settlement was reformed, by making the trusts of a term provide a portion for a daughter, the only issue of the marriage, of the amount stated in the articles for one younger child. As to cases where the Court has refused to rectify settlements, see Hoivkins v. Jackson, 2 Mac. & G. 372; White v. Anderson, 1 Ir. Ch. Rep. 419; Brougham v. Squire, 1 Drew. 151; Lloyd v. Cocker, 19 Beav. 140; Ftjfe v. Arbuthnot, 1 De G. & Jo. 400; Elwes V. Elwes, 2 Giff. 545; 9 W. R. (L. J.) 820; Sells v. Sells, 1 Drew. & Sm. 42; Fowler v. Fowler, 4 De G. & Jo. 250; Jenner * v. Jenner, Jur. (N. S.) 008; 8 W. R. (V.C. S.) 537; [ ^' 5i;| MacCormack v. MacCormack, 11 L. R. Eq. 130. Where, however, the settlement, though made before marriage, is expressly mentioned to be made in pursuance or in jierformanoe of the marriage articles, the settlement will be rectified by them, and it will not be necessary to resort to evidence: West v. Errissey, 2 P. Wms. 349; 3 Bro. P. C. 327; Bold v. Hutchinson, 5 De G. Mac. & G. 508. AVhero the settlement is made after marriage it will in all cases, whether it is mentioned to be made in pursuance or performance of articles or not, be conti-olled and rectified by them. These distinc- tions as to rectifying settlements by articles (subject to the qualifi- cations laid down by Lord Cranivorth, C, in Bold v. Hufcliinson, 5 Do G. Mac. & G. 558, 508) are well stated by Lord Talbot in Legg V. Goldwire: see also Honor v. Honor, 2 P. Wms. 123; Roberts v. Kingsley, 1 Ves. 238; Streatfield v. Streat field, Ca. t. Talb. 170; Warwick v. Waricick, 3 Atk. 293; Cogan v. Duffield, 20 L. R. Eq. 789; 2 Ch. D. 44. A postnuptial settlement, however, professing to bo madoiu pur- suance of articles before marriage, especially after the settlement has been acted upon for a long time, will not be reformed so as to make it accord with a mere general recital of the articles contained in the settlement, the articles themselves not being produced: Mig- non V. Parry, 31 Beav. 211. It has been held that a deed not professing to be made in pursu- ance of articles cannot be rectified from within itself as by its own recitals (Coates v. Kenva, 7 I. R. Eq. 113, 134). But see I)i re DanieVs Settlement Trusts, 1 Ch. D. 375, where from the recitals, and 119 * 52 LORD GLENORCHY V. BOSVILLE. other parts of a postnuptial settlement, the evident omission of a clanse in favour of daughters who had attained twenty-one vs^as sup- plied. A settlement after marriage made in pursuance of articles before marriage, although in accordance with them, may be rectihed upon its being proved that the articles were not in accordance with the intention of the settlor. See Smith v. lUffe, 20 L. R. Eq. 666. Courts of equity will not reform a voluntary deed as against the grantor {PhilUpson v. Kerry, 32 Beav. 628; Broun v. Kennedy, 33 Beav. 133; Lister v. Hodgson, 4 L. R. Eq. 30, 34; but see Thomjison V. Whitmoy^e, 1 J. «fe H. 268), nor will they decree a settlement as against purchasers for valuable consideration (amongst whom mort- gagees are included), without notice of the articles: West v. Errissey, 2 P. Wms. 349; Poioell v. Price, 2 P. Wms. 535; Warimcky. War- wick, 3 Atk. 291. A settlement, however, will be decreed, against pur- [ * 52 ] chasers with * notice of the articles ; Davies v. Davies, 4 Beav. 54, overruling the decision of Lord Northington in Cordwell v. Mackrill, 2 Eden, 344, secus, according to Sir Edward Sugden, L. C, of Ireland, " after a lapse of time, where there is any- thing so equivocal or ambiguous in the articles as to render it doiibt- ful how they ought to be effectuated: " Thompson v. Simpson, 1 D. & W. 491. See also Abbot v. Geraghty, 4 Ir. Ch. Rep. 15, 24, 25. It may here be mentioned, that in some cases of rectification, in oi'der to get the legal estate, a ro-conveyance is directed by decree ( Malmesbury v. Malmeshury, 31 Beav. 407, 419), but a settlement will sometimes be rectified by a decree merely, without the parties being put to the expense of a fresh deed (Tebbitt v. Tebbitt, 1 De G. & Sm. 506; Stock v. Viuing, 25 Beav. 235; White v. White, 15 L. R. Eq. 247; Hanley v. Pearson, 13 Ch. D. 545). It seems the Court will now rectify a settlement upon a petition: In re Morse'' s Settlement, 21 Beav. 174; In re Hoare's Trusts, 4 Giff. 254; Lewis V. Hillman, 3 Ho. Lo. 607; In re Bird's Tinists, 3 Ch. D. 214. And see Li re De la Touche's Settlement, 10 L. R. Eq. 599. There, although the fact of the mistake was not admitted by all parties, the Court, upon the evidence on a Petition, filed under the Trustee Re- lief Act (10 & 11 Vict. c. 96), did not order the Petition to be rec- tified, but prefacing the order with a declaration, that it appeared the words in question were inserted by mistake, made an order for distribution of the fund as if the clause had not been inserted. See, however, In re Malet, 30 Beav. 407. A settlement, whether made in pursuance of articles or not, may be rectified by the uncontradicted evidence of the Plaintiff alone; Smith V. Iliffe, 20 L. R. Eq. 166; Cook v. Fearn,21 W. R. 211; Edwards v. Bingham, 28 W. R. 89; White v. White, 15 L. R. Eq^ 247; Hanley v. Pearson, 13 Ch. D. 549; Welman v. Welman, 15 Ch. D. 570; Lovesy v. Smith, 15 Ch. D. 655. The Court has no jurisdiction, having regard to ss. 40 & 47 of 120 LORD GLENORCIIY V. BOSVILLE. * 52 the Fines and Recoveries Act (3 & 4 Will. 4, c. 74), to rectify on the ground of mistake, a deed which has been enrolled as a disentailing assurance under the Act, although the rectification asked is not in the disentailing part of the deed, but in a resettlement added to it, which might have been effected by a separate unenrolled deed: Hall- Dare V. Hall- Dare, 29 Ch. D. 133. [Doctrine of Executed and Executory Trusts Restated. — A trust is called executory, not because the performance of the trust lies in the future, but because the trust instrument is to be moulded into form and perfected according to the outlines or instructions made or left by the settlor or testator. Perry on Trust, sec. 359. And in construing executory trusts the Court exercises a large authority in subordinating the language to the intent. As soon as the settlement of conveyance is made the trust becomes executed and it is thereafter governed by the rules of an executed trust. A trust is also executed when no act is necessary to give it effect, and the trust is fully and finally declared in the instrument. It is to be noted that in executory trusts the intention of the settlor governs, and there must be some opportunity for an exercise of judg- ment in determining his intention; and as executory or imperfect trusts are only directory, a Court of equity will determine the inten- tion of the settlor from an examination of the whole instrument. An executory agreement to create a trust will not be enforced. Webb's Estate, 49 Cal. 542. Nor an executed trust, if without con- sideration. Badgley v. Votrain, 08 111. 25. In marriage articles a settlement will be made in accordance with the intentions of the parties if it is possible. In the case of an executory trust created by will, there is no pre- sumption as to the intention of the testator. A Court of equity will entertain jurisdiction in the case of exe- cutory trusts for the purpose of carrying them out, and also for see- ing that the instrument which purports to fulfil the intention of the settlor really does so, and for reforming conveyances which have been improvidently drawn and by which the object sought to be reached by the executory minute or draft have not been attained.] 121 * 53 KEECH V. SANDFORD. [ * 53 ] * KEECH 7). SANDFORD. October 31st, 1726. [kepokted select cases in chancery, 61.] Renewal of a Lease by a Trustee.] — A. beivgjjossessed of a Lease of a Market bequeathed it to B. in trust for an infant. B., before the expiration of the term, apj^lied to the Lessor for a reneival for the beriefit of the Infant. The Lessor refused to grant such reneival, whereiqoon B. got a Lease made to Jdmself Held, that B. icas Trustee of the Lease for the Infant, and must assign .the same to him and account for the profits, but that he ^uas entitled to be indem- nified from the Covenants contained inthe Lease. A PERSON being possessed of a lease of the profits of a market, devised bis estate to a trustee in trust for the infant. Before the expiration of the term the trustee applied to the lessor for a re- newal, for the benefit of the infant, which he refused, in regard that, it being only of the profits of a market, there could be no dis- tress, and must rest singly in covenant, which the infant could not enter into. There was clear proof of the refusal to renew for the benefit of the infant, on which the trustee gets a lease made to himself. Bill is now brought [by the infant] to have the lease assigaed to him, and for an account of the profits, OU' this principle, that wher- ever a lease is renewed by a trustee or executor, it shall be for the benefit of cestui que use, which principle was agreed on the other side, though endeavoured to be difPerenced on account of the express proof of refusal to renew to the infant. Lord Chancellor King. — T must consider this as a trust [ * 54 ] for the infant, for I very well see, if a trustee, on * the re- fusal to renew, might have a lease to himself, few trust es- tates would be renewed to cestui que use. Though I do not say there is a fraud in this case, yet he [the trustee] should rather have let it run out than to have had the lease to himself. This may 122 KEECII V. SANDFORD. * 54 seem bard, that the trustee is the only person of all mankind who might not have the lease ; but it is very proper that rule should be strictly pursued, and not in the least relaxed ; for it is very obvious what would be the consequences of letting. trustees have the lease on refusal to renew to cestei que iise. So decreed, that the lease should be assigned to the infant, and that the trustee should be indemnified from any covenants com- prised in the lease, and an account of the profits made since the re- newal. Keech v. Sandford, sometimes called the Rumford Market Case, is usually cited as the leading authority on the doctrine of con- structive trusts arising upon the renewal of a lease by a trustee or executor in his own name and for his own benefit. The rule here inflexibly laid down by Lord King has ever since been invariably followed ; viz. that a lease renewed by a trustee or executor, in his own name, even in the absence of fraud and upon the refusal of the lessor to grant a new lease to the cestui que trust, shall be held upon trust for the person entitled to the old lease. See Fitzgibbon v. Scanlan, 1 Dow. 201,269; Raivev: Chichester, Amb. 715; S. C, 1 Bro. C. C. 198 n.; 2 Dick. 480; Pickering v. Voicles, 1 Bro. C. C. 198; Pierson v. Shore, 1 Atk. 480; Nesbitt v. Tredennick, 1 Ball & B. 46; Abney v. Miller, 2 Atk. 597; Edwards \. Lewis, 3 Atk. 538; Killick V. Flexney, 4 Bro. C. C. 161; Moody v. Matfheius. 7 Ves. 174; James v. Dean, 11 Ves. 383; Parker v. Brooke, 9 Ves. 583; Lovatt V. Knipe, 12 Ir. Eq. Rep. 124; Kendall v. Marsters, 2 De G. F. & Jo. 200; Li re Morgan, 18 Ch. D. 93; see also Walley v. Walley, 1 Vern. 484, and Holt v. Holt, 1 Ch. Ca. 190, which seems to be the oldest case upon the subject. [ Constructive tj'usts are those which arise purely by construction of equity and are entirely independent of any actual or presumed intention of the parties. Equity makes use of the machinery of a trust for the purpose of affording redress in cases of fraud. As when a party has acquired the legal title to property by un- fair means he is deemed to hold it in trust for the injured party. The pai'ty guilty of the fraud is called a trustee ex malifacio. Squires Appeal, 20 P. F. Smith, 266; Cburch v. Ruland, 14 P. F. Smith, 443; R. R. Co. v. Elliott, 57 N. H. 397; Staats r. Bergen, 2 C. E. Green, v97.] And in a case in Ireland the rule was held to apply to an adminis- tratrix of a deceased tenant from year to year, who upon obtaining a new tenancy from year to year, was held a trustee thereof for the next of kin of the intestate : Kelly v. Kelly, 8 I. R. Eq. 430. 123 * 55 KEECH V. SANDFORD. [As to executors and administrators, see Savage v. Williams, 15 La. Ave. 250; Farron v. Farley, 3 S. C. 11; Colgate v. Colgate, 28 N. J. Eq. 372; Jewett v. Miller, 10 N. Y. 402; Miles v. Wheeler, 43 111. 123; Kruse v. Stephens, 47 111. 112; Woodruff v. Cook, 2 Edw. ch. 259; Beeson v. Beeson, 9 Barr, 279; Eogers v. Rogers, 3 Wend. 503; VanEpps v. VanEpps, 9 Paige, 237; Brickenridge v. Holland, 2 Blackf. 377; Peyton v. Enos, 16 La. An. 135.] [ * 55 ] There the widow and * administratrix of a tenant from year to year, of a holding in Ulster, continued in possession for two years after his death, and the tenancy having been then deter- mined by notice to quit, offered no resistance to an ejectment brought by the landlord, who took formal possession, but left her in undisturbed possession at the same rent. It was held by Chat- terton, V.-C, that though there was no fraud in the transaction, the new tenancy was a graft on the old one for the benefit of the next of kin of the intestate, even though there was a custom on the es- tate that a holding should not be divided amongst the next of kin of an inliestate, but be given to the widow if a desirable tenant. See also M'Cracken v. M'Clelland, 11 Ir. R. Eq. 172. The same rule applies also to an executor de son tort renewing a lease in his own name (Mulvany v. Dillon, 1 Ball & B. 409; Griffin V. Griffin, 1 S. & L. 352), and to a husband obtaining a renewed lease in his own name, by the surrender of the old lease which he had assigned to trustees in trust for the separate use of his wife. See In re Lulham, Brenton v. Liilham, W. N., August 9th, 1884, p. 186, where it was held in such case that the executors of the hus- band wei^ trustees for the benefit of the widow, and that the evi- dence showed that the husband intended to make her a present of the fine paid and all outgoings. The Court of Chancery moreover has refused to appoint the les- see of lands belonging to a charity to be a trustee of the charity unless he gave up the lease. See Foord v. Baker, 27 Beav. 193. There a scheme made in 1855 provided, that no person should act as trustee of the charity who should hold or occupy any part of the charity property. At that time one of the trustees held a small piece of charity land under a twenty-one years' lease granted in 1847 by public tender. It was held by Sir John Romilly, M. R., that he must either give up the lease or the trusteeship. The ground of decreeing renewals by trustees and executors to enure to the benefit of cestui que trusts rests upon public policy to prevent persons in such situations from acting so as to take a bene- fit to themselves : Griffin v. Griffin, 1 S. & L. 354, per Lord Redes- dale; and see Bleimtt v. Alillett, 1 Bro. P. C. 367, Toml. ed. [The trustee is in such a position of confidence and influence over the cestui que trust that the bargain or contract will be either void or he will be a constructive trustee at the election of the cestui que trust. Unless the trustee can show that the contract was entirely fair and advantageous to the cestui que trust: Shelton v. Homer, 5 124 KEECH V. SANDFORD. * 56 Met. 462; Johnson v. Blackman, 31 Conn. 843; Freeman v. Har- wood, 41) Me. 195; Painter v. Henderson, 7 Barr, 48; Scroggins v. McDougald, 8 Ala. 882; Ziiumerman r. Harmon, 4 Itich. Eq. 165; Child V. Bruce, 4 Paige, 309; Michoud v. Girod, 4 How. 508.] So, if a person having a limited 'interest in a renewable lease, as a tenant for life, renews it in his own name, he will be held a trustee for those entitled in remainder to the old lease {Rawe v. Chichester, Amb. 715; S. C. 5 Dick. 480; 1 Bro. C. C. 198 n.; Taster v. Mar- riott, Amb. 668; Owen v. Williams, Amb. 784; Coppin v. Ferny - hough, 2 Bro. C. C. 291; Boivles v. Steivart, 1 S. & L. 209; Randall v. Russell, 8 Mer. 190; * Giddings v. Giddings, 3 [ * 56 ] liuss. 241; Nesbitt v. Tredennick, 1 Ball. & B. 46; Eyre v. Dolphin, 2 Ball & B. 290; Tanner v. Elworthy,A: Beav. 487; Waters V. Bailey, 2 You. & Coll. C. C. 224; Buckley \. Lanauze, L. & G. t. Plunk. 827; Hill v. Mill, 12 Ir. Eq. Eep. 107; Mill v. Hill, 3 H. L. Cas. 828; Trumper v. Trumper, 14 L. R. Eq. 295; 8 L. R. Ch. App. 870; and O'Brien v. Egan, 5 L. R., Ir. 633). And the result is the same, in the case of a tenant for life under a will, obtaining a new lease even although the original lease may have expired during the life of the testator, who had continued to hold merely as tenant from year to year. See James Dean, 11 Ves. 388; S. C, 15 Ves. 236, where a testator bequeathed leaseholds for years determinable upon lives to his widow (who was his residuary legatee and execu- trix) for life, with remainder over; the term expired during the testator's life, who continued to hold as tenant from year to year: a subsequent lease, obtained by his widow was held to be subject to the trusts of the will, as the residue of the term at his death, if any, however short, would have been. If, however, the testator bo merely a tenant at will or at sufferance of leaseholds upon renewal of the lease by his executor, he would not be a trustee for the persons to whom the leaseholds were be- queathed in remainder, for as a tenancy at will or at sufiferance would have determined upon the death of the testator, no interest would have passed to them by the will: James v. Dean. 11 Yes. 391, 392. But an executor in such* a case, although the devisees of the lease could not claim the benefit of the renewal, would hold it as a trustee for the general estate. Thus in the case of James v. Dean, 11 Yes. 383, Lord Eldon said he was inclined to think, that, had the widow not been residuary legatee, she would, in such a case, have been a trustee for the residuary legatee. " The question," ob- served his Lordship (see 11 Yes. 393), "is new, whether an execu- trix, dealing with the opportunities which she derives by her suc- cession without title to the estate a tenant by sufferance or at will had held, is a trustee for the person, "who cannot say he took an interest under the will, or whether it is to be said against her only, that the advantage she made of those opportunities should be for the general estate. The result is this: I think it is impossible she 125 * 57 KEECH V. SANDFORD. could hold it for herself. Not applying it to this case, but suppos- ing another person, not the wife, was residuary legatee, the ques- tion, I should think, would be in favour of that other residuary legatee, being a casual advantage from the dealing of the execu- trix." [The doctrine of construc'tive trusts is well established in the United States, see, King v. Cushman, 41 111. 31; Frank's Appeal, 9 P. F. Smith, 190; Huson u Wallace, 1 Rich. Eq. 2; Irwin v. Har- ris, 6 Ired. 221; Mathews ?;. Dragand, 3 Dess. 25; Van Horn v. Fonda, 5 Johns. Ch. 409; Holridge v. Gilleslie, 2 John. Ch. 30.] See also Randall v. RusseM, 3 Mer. 190; MiU v. Hill, 3 H. [ * 57 ] L. Gas. * S66; Archbold v. Scully, 9 Ho. Lo. Gas. 3G0; In re Tottenham's Estate, 16 Ir. Gh. Rep. 115. Where, however, a testator believing that a certain piece of land (to which he was really not entitled) was included' in a lease, by his will gave the premises comprised in the lease to his executrix for life, with remainders over, and the executrix took a lease of the piece of land, it was held that she was not trustee for those in remainder, but was absolutely entitled thereto: Raive v. Chiches- ter, Amb. 715, 720. Although a tenant for life of a lease under a settlement be him- self the author of it, if he renew the lease in his own name, he will be a trustee for the parties interested under the settlement: Pick- ering v. Voules, 1 Bro. G. G. 197; Colegrave v. Manby.Q Madd. 72; C.S ,2 Russ. 238; In re Liilham, Breyiton v. Lulham, W. N., Aug. 9, 1884, p. 180. And the fact of the settlement containing a special provision that a particular renewal shall enure for the benetit of the trust, will not prevent the application of the general rule in the case of other renewals: Tanner v. Elivorthy, 4 Beav. 487. By analogy to these cases, if not under the 73rd section of the Lands Glauses Gonsolidation Act (8 & 9 Vict. c. 18), when a tenant for life receives a sum of money for withdrawing opposition to a bill, and the act then passes authorising the' taking of the land in settlement, whether the land is taken or not, and whether the act is proceeded upon or not, the money so received must be held for the benefit of all the parties interested: Pole \. Pole, 2 D. & Sm. 420; Re Duke of Marlborough's Estates, 13 Jur. 738; Earl of Shreicsbury V. No7ih Staffordshire Railivay Company, 1 L. R. Eq. 593, 608, sed vide Ex parte Lockwood, 14 Beav. 158; Ex j^cirte The Rector of Lit- tle Steeping, 5 Railway Ga. 207. Even where a tenant for life of renewable leaseholds has a gen- eral power of appointment, which he does not exercise, a renewal in his own name (not being an execution of the power) will enure over at his death for the benefit of the remainderman. In Brook- man V. Hales, 2 V. & B. 45. [The instance which is usually given of a constructive trust is the renewal of a lease by a trustee in his own name and also with his own funds. The renewal so named will according to the equitable doctrine in the case under consider- ation inure to the benetit of the cestui que trust. As no actual 126 KEECII V. SANDFORD. * 58 fraud exists the sole remedy is in equity: Yeackol ?\ Litchfield, 13 Allen, 417.] Upon the same principle where the tenant for life, under a de- vise, of Jin encroachment upon the property of the Crown in the Forest of Dean, took under an Act of Parliament (1 & 2 Vict. c. 42) for confirming the titles to the encroachments, a conveyance to her- self in fee, it was held that as the act was intended only to provide for disputes between parties claiming adversely the legal right (speaking without regard to the Crown's title) to be in possession and treated as holders, the devisee had acquired the fee, not only for her own benefit, but also for the benefit of those in re- mainder: Yem V. Edwards, S K. & J. * 504; 1 De G. & Jo. [ ^' 58 ] 598. On the subject of encroachments by tenants, see An- dreivs v. Hailes, 2 Ell. & B. 849; Kingsmill v. Millard, 1 1 Exch. 313. As to encroachments by copyhold tenants upon the waste of the manor, see Attorney -General v. Tomline, 5 Ch. D. 750. And where a person who is trustee of property for himself and others, acquires, under an Act of Parliament, upon the representa- tion that he was solely entitled, an absolute interest therein, he will nevertheless' be held a trustee for all parties beneficially interested, of whatever estate or right he has so acquired {Cooper v. Phibbs, 2 L. R. Ho'. Lo. 149), subject only to the repayment to him by the parties entitled under the trusts of the moneys properly expended by him in acquiring any additional rights and improving the whole. lb. [If a trustee gets a lease that is merely a graft on the old one it enures to the trustee estate: Davis v. Hamlin, 108 111. 39; Gower V. Andrews, 59 CaL 119.] And in a recent case where the trustees of land, affecting actual ownership, acquired from the Crown a right of fishing in the adja- cent sea, it was held by the House of Lords, affirming the decision of the Court of Session in Scotland, that the acquisition was secur- ed for the benefit of the cestui que trust: Aberdeen Town Council v. Aberdeen University, 2 App. Ca. 544. If one of several persons jointly interested in a lease renew it in his own name, he will hold in trust for the others, accordingr to their respective shares. Thus, in Palmer v. Young, 1 Vern. 276, one of three who held a lease under a dean and chapter, surrendered the old lease and took a new one to himself: the Court said it should be a trust for all. See also Hamilton v. Denny, 1 Ball & B. 199; Jackson v. Welsh, L. & G. t. Plunk. 346. Where a tenant for life, and a remainderman of a lease for lives, take a renewal thereof to themselves and their heirs as joint ten- ants, though they contribute unequally towards the consideration for the new lease, in the absence of anything showing a contrary in- tention, their prior interests in equity will remain unaltered. See Hill V. Hill, 8 Ir. Eq. 140, 622. And if a person jointly interested with an infant, renew, and the renewed lease turn out not to be beneficial, the person renewing 127 * 59 KEECH V. SANDFORD. must sustain the loss; if beneficial, the infant can claim his share of the benefit to be derived from it. This is the peculiar privilege of the unprotected situation of the infant. But to any sums which may have been paid for the renewal of the lease, or in consequence of it, the infant must contribute his due proportion before he can claim any advantage. Ex parte Grace, 1 B. & P. 376. [If the per- son interested with the infant is his guardian, the dealings are closely scrutinized even after the relation is terminated: Smith v. Davis, 49 Md. 470; Mason v. Felton, 13 Pick. 206. The guardian must also account for all the profits, Kepler v. Davis, 80 Pa. St. 153.] . So, likewise, if a partner renew a lease of the partnership prem- ises on his own account, he will, as a general rule, he held a [ * 59 ] trustee of * it for the firm, and there is " no distinction, whether the partnership is for a definite or indefinite pe- riod. If one partner might so act in the latter case, he might equally in the former. Supposing the lease and the partnership to have different terms of duration, he might, having clandestinely ob- tained a renewal of the lease, say to the other partner, ' The prem- ises on which we carried on our trade have become mine exclusively; and I am entitled to demand from you whatever terms I think fit, as the condition for permitting you to carry on that trade here: ' " per Sir William Grant, M. R., in Featherstonhaugh v. Fenicick, 17 Ves. 311, See also Alder v, Fouracre, 3 Swanst. 489 ; Faivcett v. White- house, 1 Russ. & My. 132; Glegg v. Edmofidson, 22 Beav. 125; 8 De Q. Mac. & G. 787; Clements y. Hall, 2 De G. & Jo. 173; re- versing S. a, 24 Beav. 333; Gordon v. Scott, 12 Moo. P. C. C. 1. In Clegg v. Fishivick, 1 Mac. & G. 294, the plaintiff's husband being engaged in partnership with other persons, they took a lease in 1828 of certain coal mines, for the purpose of the partnership. He died in 1836, and the plaintiff took out letters of administra- tion. There was no provision made for the continuance of the part- nership with the administratrix; but it was in fact carried on be- tween her and the other partners up to the year 1849, the same partnership property being used for the purposes of the partner- ship. In that year the old lease having expired a new lease was taken by some of the other partners, without the privity of the plaintiffs. It was held by Lord Cottenham, C, that the administra- trix was entitled to a Receiver in respect of the intestates's share of the partnership including the renewed lease. The rule, however, to be deduced from the last-mentioned class of cases has been to some extent departed from where the trade or business carried on in connection with a lease is one of a specula- tive character, requiring great outlay with uncertain returns, or at any rate it will not be acted upon in favour of parties who lie by in order to see how the speculation turns out. Thus, if in such a business, for instance, as a mining concern, the surviving partner renews the lease in his own sole name and carries on the business 128 KKEOII V. SANDFORD. * 60 with his own capital and in his own name, the Court will not in general assist the representative of the deceased partner unless he comes forward promptly, and is ready to contribut(i a due propor- tion of money for the purpose of the business, for it would be un- just to permit the executor of the deceased partner to lie by and re- main passive while the survivor is incurring all the risk of loss, and only to claim to participate after the affairs have turned out to be prosperous: per * Lord Cramvorth, C, 2 Do G. & [ *G0] Jo. 186. But this exception to the rule does not apply where the surviving partner who renews the lease keeps the representative of the de- ceased partner in ignorance of the real state of the concern, for he is bound to disclose iibcrrimd fide every fact which may enable the representative to exercise a sound discretion as to the course he ought to pursue: Clements v. Hall, 2 De G. & Jo. 173, 188. If a mortgagee renew a lease, the renewal will be for the benefit of the raortgagoi', paying the mortgagee his charges; and per Lord Chancellor Nottingham, " The mortgagee hero doth but graft upon his stock, and it shall be for the mortgagor's benefit: " Iinshworth''s Case, Freem. 12; Luckin v. Rushicorth, Rep. t. Finch. 892; S. C, 2 Ch. Rep. 113; Darrell v. Whitchot, 2 Ch. Rep. 50; nor will the case be altered by the expiration of the lease before renewal : Rakestraw v. ^reiver, 2 P. AVms. 510. Upon the same principle the mort- gagor of a lease renewable by custom, or the assignee of the equity of redemption subject to the mortgage, upon a purchase of the re- version in fee, can only hold the reversion as he would have held a renewed lease, subject to the mortgage, as would also a mortgagee of the reversion in fee: Leigh v. Burnett, 29 Ch. D. 231. [The renewal of leaseholds is only an example of the general principle, viz., that no fiduciary can gain any personal advantage touching the subject of the trust, Hill on Trustees, 539 (849, 4th A. M. ed).] A new lease, however, obtained bona fide by the mortgagee, after giving all parties interested notice, and an opportunity of renewal, has been held not to be in trust for the mortgagor: see Nesbitt v. Tredennick, 1 Ball'& B. 29. There it appeared that the lessee against whom the landlord had recovered in ejectment, had allowed the time for redemption to pass by without tendering rent, tines, and cost, that the mortgagee who had three months further to redeem sent notice to the lessee that he would not himself redeem, but should make the best bargain he could with the landlord. After- wards he agreed to take a new lease, to commence from the expira- tion of three months, with a proviso that if any of the other parties interested should make a lodgment, the agreement should be void. Lord Manners under these circumstances held that the lease granted to the mortgagee was not bound by any trust for the mortgagor. His lordship said that in all previous cases the party had obtained renewal by being in possession, or it was done behind the back or by some contrivance in fraud of those who were interested in the 9 WHITE ox EQUITY. 129 * 61 KEECH V. SANDFORD. old lease, and there was either a remnant of the old lease, or a ten- ant-right of renewal, on which the new lease could be ingrafted, but that here no part of the mortgagee's conduct showed a contrivance, nor was he in possession, and all that the mortgagee treated for was a new lease, giving full opportunity to the lessee to dispose of his interest, or to renew if he was enabled to do so. On the other hand, if a lessee mortgage leaseholds, and after- wards obtain a new lease, the new lease will be held a graft on the old one for the benefit of the mortgagee: Smith v. Chichester, 1 C. & L. 486. [ * 61 ] Upon the same principle if a * person entitled to a lease, subject to debts, legacies, or annuities, renews, either in his own name or in the name of a trustee, the incumbrances will remain a charge upon the renewed lease: Seabourne v. Powel, 2 Vern. 11; Jackson v. Welsh, L. & G. t. Plunk. 346; Winsloiv v. Tighe, 2 Ball & B. 195; Stubbs v. Roth, 2 Ball & B. 548; Webb v. Lugar, 2 You. & Coll. Exch. Ca. 247; Jones v. Kearney, 1 C. & L. 34; Otter v. Vaiix, 6 De G. Mae. & G. 638. And a lessee will not be allowed to evade the operation of the rule laid down in the principal case by fraudulently incurring a for- feiture of the lease which he induces the landlord to take advantage of, and afterwards obtains from him a new lease: Hughes v. Hoiv- ard, 25 Beav. 575; Stratton v. Murphij, 1 I. E. Eq. 345. [Whether a person who renews is bound to renew for the benefit of another, can purchase the reversion for themselves seems to be a doubtful question. Eldredge v. Smith, 34 Vt. 484; Britton v. Lewis, 8 Rich. Eq. 271, and see, Randall v. Russell, Meriv. 190.] If a person, having the right of renewal, sells such right, the money produced by the sale will be afPected by the same trusts as the leaseholds, if renewed, would have been. Thus, in Owen v. Williams, Amb. 734, where a tenant for life of a Crown lease ap- plied for a further term, but a powerful opponent having appHed for a grant, the tenant for life gave up her pretensions for a sum of money, Lord Apsley, upon the authority of the principal case, held that the money ought to be settled upon the same trusts as the lease. And in Lombards. Hickson, 13 Ir. Ch. Rep. 98, an execution cred- itor of the lessee of a share, of renewable leaseholds, of which he had obtained possession by ejectment, and who bought the superior lease, was held bound by a jointure rent created by the lessee, and of which he had notice. A person acting as agent, or in any similar capacity, for a person having an interest in a lease, cannot renew /or his own benefit. See Edwards V. Leivis, 3 Atk. 538; ChHffin v. Griffin,! S. & L. 352; Mulvany v. Dillon, 1 Ball & B. 417; and Mulhallen v. Marum, 3 D. & W. 317, in which case a lease was obtained by a person stand- ing, by delegation, in the place of guardians, and who at the same time, filled the characters of agent, receive!', and tenant. It was 130 KEECII V. SANDFORD. * 62 Ret aside by Sir Edirard Sudcjen, L.C., upon the equity arising out of those relations and upon public policy. The rule laid down in the principal case has been very strictly followed. Thus, as was then decided, the refusal of the lessor to renew to the cestui que trust [ante, p. 53, Griffin v. Griffin, 1 S. & L. 353); the refusal of co-trustees to concur in a renewal for the benefit of the cestui que trust [Bleicett v. Millett, 7 Bro. P. C. 367; the fact that the old lease had expired (Edwards v. Leicis, 3 Atk. 538); that the lease had not customarily been renewed {Killick V. Flexney, 4 Bro. C. C. 161; Featherstonhcmgh *v. Femvick, 17 Ves. 298; Mulvany Dillon, 1 Ball & B. [ * 62 ] 409; Eijre v. Dolphin, 2 Ball & B. 290); the fact that the new lease differed from the old one either as being for lives instead of for a term {Eyre v. Dolphin, 2 Ball k B. 298); or was for a dif- ferent term, or at a different rent {Mulvany v. Dillon, 1 Ball & B. 409; James v. Deaii, 11 Ves. 383; S. C.,15 Ves. 236); or comprised lands not in the old lease ( Giddings v. Giddings, 3 Buss. 241 ) ; has been held not to prevent the application of the rule. It may, however, be here mentioned that where a trustee, or ten- ant for life, obtains a new lease, which comprises not only the prem- ises in the original lease, but also additional lands, the trusts will not attach upon the additional lands: Acheson v. Fair, 3 D. & AV. 512; 2 C. & L. 208; O'Brien v. Egan, 5 L. R. I. 633. A trustee who has renewed will be directed to assign the lease,free from incumbrances, except, it seems, any lease made by him bona fide at the best rent {Boicles v. Steicart, 1 S. &L. 230); and he must ac- count also for the mesne rents and profits and fines which he may have received {Mulvany \. Dillon, 1 Ball & B. 409; Walley v. Walley, I Vern, 484; Luckin v. Rushworth, Finch, 392; Bleicitt v. Millett, 7 Bro. P. C. 367, Toml. ed.; Eawe v. Chichester, Amb. 715); even although the lease had expired before the bill was filed; Eyrey. Dol- phin, 2 Ball & B. 290. But where a tenant for life has renewed, the account will commence only from his decease; Giddings v. Gid- dings, 3 Buss. 241. On the other hand, the person who has renewed the lease will be entitled, as in the principal case, to be indemnified against the cove- nants he may have entered into with the lessor {Giddings v. Gid- dings, 3 Russ. 241); and he will also have a lien upon the estate for the costs and expenses of renewing the lease, with interest Raice V. Chichester, Arab. 715, 720; Coppin v. Fernyhough, 2 Bro. C. C. 291 ; Latcrence v. Maggs, 1 Eden, 453, and note; James v. Dean, II Ves. 383; Kempton v. Packman, cited 7 Ves. 176; Isaac y. Wall, 6 Ch. D. 706); and for the expenses of lasting improvements {Holt V. Holt, 1 Ch. Ca. 190; and see Laicrence v. Maggs, 1 Eden, 453, Endnote; Mill v. Hill, 3 H. L. Cas. 828, 869); even though in- curred after the institution of the suit {Walley v. Walley, 1 Vern. 487); but not for any improvements adopted as a mere matter of taste, or as a matter of personal convenience {Mill v. Hill, 3 H. L. 131 * 64 KEECH V. SANDFORD. Cas. 869. At the same time there may be many charges in the nature of waste, and as to deterioiation, which must be set off against anything found due in respect of improvements. [ * 63 ] *And where new lands not in the old are comprised in the renewed lease, the expenses will be apportioned according to the value of the respective lands: Giddings \. Giddmgs, 3 Russ. 241, 251. Where a tenant for life renews a lease by putting in his own life, he cannot claim to be repaid any part of the expense, because by put- ting in his own life, he obviously conferred no benefit upon those in remainder, who were to take after his death (Laurence v. Maggs, 1 Eden, 453, 455); where, however, the tenant for life, without any obligation to do so, renews a lease by putting in the life of a stranger, the expenses thereof will, on the death of the tenant for life, be ap- portioned by the remaindei'man paying his proportion of the benefit he derived from the renewal: White v. White, 9 Ves. 554; Allan y. Backhouse, 2 V. & B, 65; and such apportioned expenses will be a charge on the premises (Adderley v. Clavering, 2 Bro. C. C. 659, 2 Cox, 192); even although the remaindermen are the children of the tenant for life, and claim as an advancement the sum paid for re- newal by their father: Lawrence v. Maggs, 1 Eden, 453, 456. As to contribution towards payment of fines upon renewals, see White V. White, 9 Ves. 554; Playters v. Abbott, 2 My. & K. 97; Earl of Shaftesbury v. I^ike of Marlborough, 2 My. & K. Ill; Reeves v. Cresicick, 3 You. & Coll. Exch. Ca. 715; Jonesy. Jones, 5 Hare, 440; Giddings v. Giddings, 3 Buss. 241, 259; Tudor's Lead. Cas. Eeal Prop. 90, 97, 3rd ed. Where a testator has devised his interest in a leaseholds subject to an annuity, it has been held by some judges that the annuitant is not bound to contribute towards a renewal ; Maxicell v. Ashe, 7 Ves. 184, cited; Moody v. Mattheivs, 7 Ves. 174; and see Thomas \. Burne, 1 Dru. & Walsh. 657; Jones v. Kearney, 1 C. & L. 47). Lord Manners, however, held that an annuitant ought to contribute according to his interest in the property: Winsloiv v. Tighe, 2 Ball. & B. 195; Stubbs v. Roth, 2 Ball & B. 548. The same remedies which, as we have before seen, may be had against trustees, executors, and persons with limited interests, renew- ing leases in their own names, may also be had against volunteers claiming through them {Boules v. Stewart, 1 S. & L. 209; Eyre v. Dolphin, 2 Ball & B. 290; Bleu^ett v. Millett, 7 Bro. P. C. Toml. ed. 367 ) ; and against purchasers from them, with notice expressed or implied: Walley v. W alley, 1 Vern. 484; Eyre v. DoZp/itw, 2 Ball. & B. 290; Parker v. Brooke, 9 Ves. 583; Stratton v. Murphy, 1 I. R. Eq. 345; Coppin v. Fernyhough, 2 Bro. C. C. 291. See also Hodg- kinson v. Cooper, 9 Beav. 304; In re Morgan, 18 Ch. D. 93; [ * 64 ] Le Neve v. Le Neve, vol. 2, L. C. Eq. * and note, 6th ed. ) ; even although such volunteers and purchasers with notice may have levied a fine (Bowles v. Stewart, I S. & L. 209, 225); or 132 KEECII V. SANDFOR-D. * 04 even have obtained a release from the cestui que tniRts, provided that when the fine was levied and the release executed the trustees were guilty of the concealment of material facts from the cestui que trust, by suppression of deeds and otherwise. lb. 226, 227. And where a deed by which the lease was settled was registered under the Irish Registry Act (6 Ann. c. 2), a purchaser, although without notice from a person having a limited interest, who had re- newed the lease in his own name, was hold to be a trustee for the parties interested under the settlement: Hill v. Mill, 12 Ir. Eq. Eep. 107; S. a, nom. Mill v. Hill, 3 H. L. Cas. 828. But the cestui que trust may be bound by acquiescence and lapse of time. See Isald v. Fitzgerald, cited in Owen v. Williams, Amb. 735, 737; Norris v. LeNeve, 3 Atk. 38, 39; Jackson v. Welsh, L. & G., Ca. t. Plunk. 346), especially where the property sought to be affected with a trust is, as in the case of mines, subject to extraor- dinary contingencies, and is capable of being rendered productive only by a large and uncertain outlay (Clegg v. Edmondson, 8 De G. Mac. & G. 787). [A constructive trust will be barred by long acquiescence, but it is difficult to say as to the length of time: Sherwood v. Sutton, 5 Mason, 143; Kaae v. Bloodgood, 7 John, 93; Pascball r. Hinderer, 28 Ohio, 568; Elmendorf v. Taylor, 10 Wheaton, 168. Twenty years has been held sufficient to bar any relief in such cases: Morris's Appeals, 71 Past. 124; Field v. Wilson, 6 B. Mon. 479; Perry v. Craig, 3 Mo. 360. So has thirty years: Harrod v. Fountleroy, 3 J. J. Marsh, 548. In other case relief was not barred by a delay of twelve years: Newman v. Early, 3 Tenn. Ch. 714; Butler v. Has- kell, 4 Des. 651.] And it is immaterial that the cestui que trust made a continual claim, if during the time he made it he took no effectual steps to enforce his alleged rights, lb. A tenant for life, under a settlement of leaseholds, procuring a renewal to himself, was held not to take the renewal as an express trustee upon the trusts of the settlement; the Statute of Limitations (3 & 4 Will. 4, c. 27) therefore was held to run as against other persons claiming under the settlement: In re Dane' s Estate, 5 I. R. Eq. 498. When it is impossible to obtain the renewal of a lease, if there be no predominant ti;ust for renewal, ovemding the disposition in favour of the subsequent tenant for life, the latter, it seems, will be entitled to the sum accumulated by the direction of the settlor for that purpose. See Morres v. Hodges, 27 Beav. 625. There, by a settlement, the trustees were to use their utmost endeavours to re- new an ecclesiastical lease upon reasonable terms, and to raise the fines out of the rents or by mortgage. A renewal became impracti- cable. It was held by Sir John Romilhj, with evident reluctance, upon the authority of Tardijf v. Robinson, 27 Beav. 629 n.— a deci- sion of Lord Eldon's — that the*f und reserved by the trustees out of the 133 * 60 KEECH V. SANDFORD. rents for the purpose of renewal belonged absolutely to the tenant for life; and see 2 Seton on Decrees, 1275, 4th ed. ; Richardson [ *65 ] V. ilioo?T., 6 *Madd. 83 n. cited; In re Money's Trusts, 2 D. & Sm. 94. Nor would the Court in such a case, where the trustees have a mere power to renew, allow them to purchase the reversion in lease - holds under the Episcopal and Capitular Estates Act (23 & 24 Vict. c. 124) to the prejudice of the tenant for life. See Hayuard v. Pile, 5 L. R. Ch. App. 214. There a testatrix bequeathed lease- holds under a Dean and Chapter to trustees on trust for a tenant for life, with remainders over, and with power to raise money for renewing the leases. The property became vested in the Ecclesi- astical Commissioners, with whom the trustees under 23 & 24 Yict. c. 124, agreed for the purchase of the reversion in part of the leaseholds, in consideration of the surrender of the other part, and the payment of a sum of money. The estate of the testatrix was administered by the Court, and the agreement was made subject to the approval of the Court. If was held by Lord Hatherley, L. C, affirming the decision of Lord Romilly, M. II., that the Court would not approve of the agreement against the wish of the tenant for life, if his income would be considerably reduced by the purchase. See Jones v. Jones, 5 Hare, 440, 460, 462. Where, however, it appears to have been the pa7'a7nount intention of the testator, as indicated by the disposition made by his will, that those entitled in reversion expectant upon the decease of a tenant for life should succeed to the enjoyment of substantially the same estate, the tenant for life, upon the renewal becomiug impracticable, will only be entitled to the income arising from the sum set apart for renewal, and of the sum produced by the sale of the leaseholds. See Maddy v. Hale, 3 Ch. D. 327. There a testator gave to trus- tees a tithe rent-charge held under an ecclesiastical lease for twenty- one years, which was ia practice renewed every seven years on pay- ment of a fine, upon trust to renew out of the proceeds, and to ap- ply the surplus in a certain way during the life of his wife, and directed that after her death it should form part of his residuary estate. He gave his trustees power at any time to sell the lease- hold interest. The lease having ceased to be renewable, it was held by the Court of Appeal, reversing the decision of Malins, V. C, that the leasehold interest ought to be sold, and the proceeds in- vested, and only the income of this fund and the renewal fund ap- plied as income. See 2 Seton on Decrees, 1273, 4th ed. And where a similar intention is shown with regard to renewable leaseholds which are afterwards taken by a railway company under its compulsory powers, a tenant for life will only be en- [ * 66 ] titled to the interest arising * from the purchase-money, although the custom to renew may not have ceased until after the premises were taken by the railway company. Thus, in Re Wood's Estate, 10 L. R. Eq. 572,. leaseholds under a Dean and 134 KEECir V SANDFORD. * 67 Chapter, renewable by custom, were held by trustees upon trust for a tenant for life, with remainder over; and the trustees were di- rected, " two years, or sooner, before the time for renewal," to bring a part of the rental into a fund until a sufficient sum was raised for the renewal, " so that the estates may bo always kept renewed . . for ever." In June, 1805, and February, 1806, notices to treat for parts of the leaseholds, then having about thirteen, and five, years respectively to run were given by a Kail way Company. At Lady- day, 1860, the Dean and Chapter ceased to renew leases; and about the same date their pi'operty was taken over by the Ecclesiastical Commissioners. The values of the two properties having been as- sessed at amounts which, when paid, and invested in £3 per cent, stock, gave a diminished income, it was argued that as the renewal had become impossible, all trust for renewal had ceased, and that the property ought to be dealt with as if it were a mere leasehold for a term of years, to which the tenant for life was entitled in sj^ecie; and that, therefore, the tenant for life was entitled to have the whole fund treated as converted into an annuity of duration equiva- lent to the term, and to have each year one year's payment of the annuity. It was, however, held by Sir W. M. James, L. J., that the tenant for life was only entitled to the dividends of the fund arising from the sale of the leaseholds to the Railway Company. "I am of opinion," said his Lordship, " that I am not in the present case bound by those cases of Morres v. Hodges (27 Beav. 625) and Tardiff v. Robinson (27 Beav. 029, n.). In those cases the conclu- sion arrived at by the Court was, that the tenant for life was en- titled in specie to the whole rents and profits, charged only with the payment of such a sum as might be required for the renewal, and as no renewal was practicable, there was nothing by which the charge could be maintained, and no means by which any substituted benefit could be ascertained by the Court to be given to the remainderman. In this case, however, the primary and paramount intention was ' that the estates may be always kept renewed, and that the younger children may have an equal benefit of time, and so continue to be provided for, for ever.' . . . The testator intended to create, and was creating as he thought, a perpetual estate, out of which he was carving successive interests. . . . The result, in my opinion, of the purchase by the * Railway Company is, that one [ * 67 ] property in perpetuity is substituted for another property in perpetuity; and that as between the tenant for life and the remain- derman, I cannot take away any part of the corpus belonging to the latter, in order to make good the diminished income of the former." Where a trust for renewal of leaseholds is absolute and overrides the interest of the tenant for life, he is not entitled to object, on the ground of the reduction of his interest, to any arrangement in lieu of renewal, which may Iw made under the provisions of the Epis- copal and Capitular Estates Act (23 & 24 Vict. c. 124), where re- newal ceases to be possible, so long as the best practicable terms 135 * 68 KEECH V. SANDFORD. are obtained. See Hollier v. Burne, 16 L. E. Eq. 163. There a testator bequeathed specifically leaseholds held under a Dean and Chapter to trustees upon trust for a tenant for life, with remainders over. The will contained directions amounting to a trast for re- newal overriding the interest of the tenant for life, and also an ab- solute power of sale in the trustees. The reversion became vested in the Ecclesiastical Commissioners, who refused to renew, but were willing to sell the reversion in part of the property in consideration of the surrender of the lease of the rest and payment of a sum of money. The tenant for life opposed the acceptance of such pro- posal, on the gi'ound that her income would be greatly diminished. It was held by Lord Selborne, C, sitting for the Master of the Rolls, that the proposed arrangement was within the powers conferred by the will and the statute 23 & 24 Vict. c. 124, and that the Court had power to direct it to be carried into effect; and an inquiry was directed whether the proposed arrangement was proper and bene- ficial, having regard to the value of the leasehold property and the rio-ht of the remainderman under the will to succeed, upon the death of the tenant for life, to the enjoyment as nearly as might be of the corpus of the same property to the income of which the tenant for life was entitled during his life. And where there is a paramount trust for the renewal of such leases, overriding the interest of the tenant for life, when the re- newal afterwards becomes impossible, it is the duty of trustees (un- less it is impossible so to do) to purchase the reversion from the Ecclesiastical Commissioners: In re Lord Ranelagli' s Will, 2C) Ch. D. 596, 598; citing In re Wood's Estate, 10 L. R. Eq. 572; Hollier V. Bunie, 16 L. R. Eq. 103; Maddy v. Hale, 3 Ch. D. 327. So in Gabbettv. Laivder, 11 L. R. I. 295, A. became entitled, as adminis- trator of an intestate, to certain lands held under a lease from the Commissioners of Church Temporalities in Ireland for twen- [ *68] ty-one years, customarily * renewable; and being so entitled he, as such administrator, obtained fi*om the Commissioners a renewal of the lease for twenty -one years. The Commissioners subsequently, under section 34 of the Irish Church Act, 1869 (32 & 33 Vict, c, 42), offered to sell the reversion in fee in the lands in question to A. as their immediate tenant, at a certain price. A. declined to buy at the price named, and the Commissioners there- upon set up the reversion in fee for sale by auction, and A. pur- chased it at the auction, and obtained a conveyance from the Com- missioners, which was made expressly subject to the lease and to the right of renewal thereunder. It was held by Chatterton, V. C, that A. became a constructive trustee of the reversion so purchased for the persons beneficially entitled to the personal estate of the in- testate, and that it formed a portion of such personal estate, the persons claiming it to pay the purchase-money and all the expenses incurred by A. in the purchase. And where a purchaser of the equitable interest of the tenant 136 KEECII V. SANDFORD. * 69 for life in such reaewablo loaso, nob having tho legal estate in the lease in him, but assuming to act with reference to that j)roperty as if he had the legal estate, purchases tho reversion from theEcch'si- astical Commissioners, he will be considered to have acted in the place of the real trustees of the lease, and to have acquired the prop- erty for the benefit of all the persons entitled under the will (In re Lord lianeluglis Will, 20 Ch. D. 590, 590, 599) ; and if the prop- erty be taken under compulsory powers and the money paid into Court, subject to his right to bo recouped the expense of his pur- chase, he will only be entitled to an order for payment on the in- terest on tho fund in Court during the life of the tenant for life un- der the will, ib. The next case to be noticed, though distinguishable from, is scarcely consistent with the last. The case alluded to is Hardman V. Johnson, 3 Mer. 347. There the testator by his will gave his in- terest in a corporation lease — viz. a lease for three lives and twenty- one years beyond to his daughter, and in case she should die with- out issue living at her death, then it was to go over to her sister. The daughter lived till after the expiration of the three lives, and during the period of twenty-one years which commenced upon the expiration of the last life, she obtained a renewal of the lease, for the lives of herself and two other persons and twenty-one years ex- pectant on the death of the survivor. She then died after the expi- ration of the first twenty-one years, without issue, having by her will given all her property to the defendant Johnson, on the supposition that she was entitled to dispose of the I'enewed lease. Upon herdeath her sister entered *upon the property, claiming to [*G9 ] do so under the will of the testator,and the defendant Johnson brought ejectment against the sister, and succeeded at law and en- tered into possession under the judgment at law, and whilst he teas in possession under that judgment he bought the reversion. Then a bill was filed against him by the sister, claiming that the renewed lease had been taken by the deceased daughter of the testator, and that the reversion had been bought by Johnson, upon the trusts of the will, and they both belonged to the plaintifl. Sir W. Grant, M. R., first doubted whether she was not entitled to the whole relief which she asked; but upon further consideration he gave her the renewed lease which her sister had obtained, but he decided that Johnson was e)ititled to keep the reversion which be had purchased. Pearson, J., in commenting in In re Lord Ranelaglis Will (26 Ch. D. 599) on the case of Hardman v. Johnson, observes that there are two essential differences between the cases. Fix'st, that in the latter there was no trust for renewal in the will; in the second place, it appeared that Johnson bought the reversion whilst he was in possession under the judgment of a Court of law that he was en- titled to the property; that his Lordship suspected (because no reasons were given in the judgment) that Sir W. Grant came to the tonclusion that Johnson had bought the reversion under those 137 * 70 KEECH V. SANDFORD. peculiar circumstaaces, that it was impossible to suppose that he had bought it as a trustee for the persons entitled to the lease under the will. However, according to Sir W. GranVs decision, Johnson was trustee of the renewed lease devised to him by the testatrix, for the testatrix's sister, and it would seem to follow that he ought not to have been allowed, while occupying that position, to purchase the reversion for his own benefit. With respect to the question, in Hardman v. Johnson, whether a tenant for life could become a purchaser of the reversion-, not from a mere stranger but from the lessor. Sir W. Grant, M. R., observed, that it might be said that she thereby intercepted and cut off the chance of future renewals, and consequently made use of her situa- tion to prejudice the interests of those who stood behind her; and that there might be some sort of equity in their claim to have the reversion considered as a substitution for those interests, although he was not aware of any decision to that effect. See Randall v. Russell, 3 Mer. 190, 197; and this view appears to have been taken by Hall, V.-C, in Isaac v. Wall, 6 Ch. D. 706; Norris v. Le Neve, 3 Atk. 37 ; Leslei/s Case, Freem. 52. And in a recent case a testa- trix having devised leaseholds, renewable by custom, to J. P. for the residue of the term, and after the death of J. P. during the residue of the term, to the children of J. P., in equal shares, and J. P. having renewed the leaseholds and pui'chased the reversion, it was held by the Court of Appeal, reversing the decision of Bacon, V.- C, that the fee simple property passed by the devise in the will to the children of J. P., and became subject to the trusts of the will : Phillljjs V. Phillips, 29 Ch. D. 673. [ * 70 ] Where, however, the executor * of a mortgagee purchased the equity of redemption of the mortgaged estate in his own name, with the money due on the mortgage and a small advance beyond it, he was hold to be a trustee of the purchased property for the benefit of the testator's estate: Fosbrooke v. Balgay, 1 My. & K. 226. A quasi tenant in tail of leasehold being the absolute owner of them, is not bound by the same equities as persons having merely limited interests; thus, where a testator devised leaseholds for lives to trustees for A., and the heirs of his body, and if he should die without issue, remainder to B., A. surrendered the old lease, and took a new one to himself and his heirs for three new lives, and died without issue, having devised the leaseholds to his widow for life, remainders over. A bill filed by B., to have the benefit of the new lease, insisting that the surrender of the old lease and taking the new one was not sufficient to bar the limitation to him, and that those claiming under A. ought to be held trustees of the new lease, was dismissed: Blake v. Blake, 1 Cox, 266. Where a stranger obtains a renewal of a lease, or a reversionary lease, the old tenant has no equity against him: Lee v. Lord Vernon, 138 KEEGU V. SANDFORD. * 71 5 Bro. P. C. 10, Toml. ed. ; Earl of Sandwich v. Earl of Lichfield, Colles, P. C. 104; Stokes v. Clarke, Colles, P. C. 192; Nesbitt v. Tredennick, 1 Ball & B. 2'J; LenleiXs Case, Freem. 52; The Attorney - General v. Gains, 11 Beav. 08, Nor, it seem<, has a lessee any equity against his sub-lessee who obtains a renewal from the head landlord without consulting him: Maunsell v. O'Brien, 1 Jones, 170 Exch. Rep. (Ireland). A lessee, however, obtaining a renewal of a lease at an increased rent, or purchasing the reversion, is somewhat in the position of a partner or fiduciary with respect to a sub-lossee with whom he has entered into a toties quofies covenant to renew at a fixed rent or tine, and is bound either to renew upon the old terms or to convey the property to the sub-lessee upon proper terms. In Evans v. Walshe, 2 S. & L. 519, A., the defendant, the lessee of a corporation, underlet to the plaintiff at a certain rent, with a covenant to renew to him at the same rent, as often as the corporation should renew to him. The corporation raised the rent payable by A. Lord Redes- dale granted an injunction to restrain the defendant fi-om proceeding in ejectment, observing, "that he considered the defendant as bound to renew on the old terms, unless he chose to abandon the property, and allow the plaintiff to stand in his place for the renewal which he had obtained, which, as ho had not covenanted to renew with the corporation, he might perhaps be at liberty to do. But if he thought fit to retain the benefit which he * had obtained, [ * 71 ] he was bound specifically to execute his covenant for re- newal," , The result is the same where a lessee having granted a similar sub-lease becomes a purchaser of the reversion from the original lessee. See Postlethwaite v. Leicthicaite, 2 J. & H. 237. There the defendants, lessees for lives from a Dean and Chapter, without a covenant for perpetual renewal, granted an underlease to the plain- tiff for the same lives, of part of the premises, and covenanted that so often as they renewed their lease, they wovild add the same life to the plaintiff's lease, on the payment of a fixed fine, such new lease to contain such or the like rents, covenants, and provisoes as the former lease. The reversion having become vested in the Ecclesiasti- cal Commissioners, they refused to renew, but offered to sell, and the lessee purchased the reversion. Sir W. Page- Wood, V. -C, acting upon the principles laid down by Lord Redesdale in Erans v. Walshe, made the following decree: "The defendants offering to convey the reversion in fee simple of the premises comprised in the plaintift^'s lease, in preference to granting a new lease of the premises with a covenant for perpetual renewal and otherwise on the terms of the present lease, declare that the plaintiff is entitled to have such reversion conveyed to him on the terms of paying the defendants a due proportion of the consideration paid or given by them, and of the expenses incurred by them, in purchasing the fee simple of so much of the property comprised in their original lease as they did 139 * 71 KEECH V. SANDFORD. purchase, regard being had to the existing interest of the plaintiff under his lease, and to the extent of the property therein com- prised. Then there must be an inquiry what this interest is worth." See also Pilkingfon v. Gore, 8 Ir. Ch. Rep. 589; Trumjjer v. Trumper, U L. R. Eq. 295, 310; 8 L. R. Ch. App. 870. A lessee, moreover, cannot, by obtaining a new lease, omitting provisions contained in the former lease, and upon the faith of which he induced another person to take a sub-lease, act in con- travention of such provisions to the injury of the sub-lessee. See Figgott V. Stratton, Johns. 341. And where a trustee or a person in any degree holding a fiduciary position has acquired the legal possession of, and dominion over, an estate, subject to a covenant for perpetual renewal, and should so deal with the property as to make the renewal impossible, by his own act and for his own benefit, he is bound to give full effect to the charges on the trust estate, and to satisfy those charges out of the acquired estate, so far as might be necessary. See Trumper v. Trumper, 14 L. R. Eq. 295, 310; 8 L. R. Ch. App. 870. {Doctrine of Constructive Trusts Restated. — If a person obtains the legal title to property by such arts or acts or circumstances of circumvention, imposition, or fraud, or if he obtains it by virtue of a confidential relation and influence under such circumstances that he ought not, according to the rules of equity and good conscience as administered in chancery to hold and enjoy the beneficial interest of the property, courts of equity in order to administer complete justice between the parties will raise a trust by construction out of such circumstances or relations; and this trust they will fasten upon the conscience of the ofi"ending party and they will convert him into a trustee of the legal title, and order him to hold it or to execute the trust in such manner as to protect the rights of the defrauded party and to promote the safety and interest of society. Such trusts are called Constracties trusts: Perry on Trusts, 192; Hendrix u Minn, 46 Texas, 141; Billow v. Brown, 26 A. K. 240; McLane v. Johnson, 432-48; Thompsons. Thompson, 16 Wis. 91; Hollinshed r. Simms, 51 Cal. 158. The party guilty of the fraud is called a trustee ex malifacio. ^ One of the most ordinary kinds of trusts of this class is that which grows out of the rule of law which forbid a trustee or any other person who occupies a fiduciary relation from gaining any personal advantage touching the thing or subject as to which such fiduciary position exists. The rule applies to trustees, agents, attorneys, executors and ad- ministrators also to those who occupy any position out of which a similar duty ought in equity and good morals to arise. The rule will be enforced against attorneys-at-law, partners, tenants for life, tenants in common, tenants for years, mortgagees, a husband, and vendees under articles: see Stephens v. Black, 27 P. F. Smith, 138; 140 KEECH V. SAXDFORD. ' * 71 Matjews Appeal, 104 Pa. St. 444; Woodlee v. Barch, 43 Mo. 231; Hyndman v. Hyndman, 19 Vt. 9; Dickenson v. Codivise, 1 Sand. F. Ch. 227; CusLing v. Danfortb, H. M. 114; Moore v. Brecken, 27 111. 23. A constructive trust will also arise if a person obtains property from a trustee without paying for it. The method of enforcing those trusts is by a bill to compel the conveyance of the legal title. The statute of frauds will not interfere with the proof of fraud either constructive or active: Ryan v. Dox, 34 N. Y. 307; Camp- bell V. Dearborn, 100 Mass. 130. Constructive, like resulting, trusts do not fall Avithin the statute of fraud. This has been the uniform doctrine both the English and American counts. A person who is 7i07i compis mentis cannot make a binding con- tract and if such a person makes a deed it will be either void or voidable and equity will declare the party to whom the conveyance has been made to be a trustee for the beneht of the insane person. The courts do not measure the extent of a person understanding. A person may not be insane or an idiot but may have a very low order of intelligence and weak reasoning powers, and contracts with such persons will be carefully investigated and the conduct of the person who procures the contract will be carefully watched. A person's weak mind is often a verymaterial fact in determining the character of a transaction, and if any unfairness on any undue influence has been exercised the court will set the contract aside, or convert the offending party into a trustee. If the contract is without adequate consideration, or is of an extraordinary character the courts will interfere and protect a weak- minded person: Hunt v. Moore, 2 Barr. 105; Hutchinson v. Tindall, 2 Green. Ch. 357; Brice v. Brice, 5 Barb. 533; Cruise v. Christopher, 5 Dana. 181: McCraid v. Davis, 2 Ired. 618; Kennedy v. Kennedy, 2. The rule stated apply also to a drunken person because while a drunken person is laboring under the frenzy of drink he is non compis mentis: Coke Litt, 247 a; Barrett r. Buxton, 2 Ark. 167; Harbison v. Temon, 3 Black. 51; Calloway v. "VVetherspoon, 5 Ired. Eq. 128; Phillips V. Moore, 11 Miss. 600. Equity will also relieve in all cases of contracts procured by fear, duress or apprehension: Davis v. McNally, 5 Sneed 583; Graham V. Pittle, 3 Jones Eq. 152; Stewart v. Hubbard, 3 Jones Eq. 186. Trustees are not allowed to purchase at their owa sales, this is so, even if the property is sold at public sale and the trustee is the highest bidder and if he does purchase, he will be considered, at the option of the cestui que trust, a trustee by equitable construc- tion. This rule proceeds on the ground of public policy. Trustees are however, sometimes allowed to bid at their own sale by order of court, but their conduct is closely watched : Cadwallader's Appeal, 14 P. F. Smith, 293; Dundas's Appeal, 14 P. F. Smith, 325. Constructive trusts sometimes arise out of contract. Thus if a 141 * 71 KEECH V. SANDFORD. contract lias been entered into for the sale of a parcel of land, equity will look vipon the things agreed upon as actually having taken place whether in point of fact they have actually taken place or not and the vendor will be considered as a trustee of the legal title for the buyer and the buyer will be considered as a trustee of the purchase money for the vendor. Lapse of time will bar a constructive trust. It is impossible to state an exact time, it seems that it depends upon the circumstances of each case: Michond v. Girod, 4 How. 561; Boone v. Chiles, 10 Peters, 177. The statute of limitations does not necessarily control as to the time in which relief is to be sought. But in some states the statute is applied to constructive trusts unless they are concealed or undiscovered: Flicker v. Flinn, 30 Md. 202; Farnham u. Brooks, 9 Pick. 212; Ashurt's Appeal, 60 Pa. St. 290. In other states in analogy to the statute which bars a real action after twenty years relief must be brought within that time. Perry V. Craig, 3 Miss. 523; Field v. Wilson, 6 B. Mon. 479; Thompson V. Blair, 3 Murph. 593. A stranger to a trust who acts as an agent of the trustee in a transaction within his legal power is not to be held liable as a con- structive trustee, unless he receives and becomes chargeable with part of the trust property, or unless he acts with knowledge of a dishonest and fraudulent design on the part of the trustee. Constructive trusts constitute a very important part of the machinery which is made use of by the courts of equity in the ad- ministration of justice.] 142 ELLIOT V. MERRYMAN. * 73 * ELLIOT V. MERRYMAN. [*72] July 1st, 1740, at the Rolls. [reported barnardiston's chancery reports, 78.] Liability of Purchaser to see to the Application of his Purchase- money.] — A purchaser of personalty from an executor will not be held liable to see to the application of the purchase money, excepA in cases of fraud. It is a general rule, that, ivhere real estate is devised to trustees, upon trust to sell for payment of debts generally, the purchaser is not bound to see that the money is rightly applied. The same rule applies where real estate is not devised to be sold for the payment of debts, but is only charged with such payment. If real estate is devised upon trust to be sold for the payment of certain debts, mentioning to ivhom in particular those debts are owing, the purchaser is bound to see that the money is applied for the payment of those debts. Thomas Smith became indebted to several persons by bond, and likewise by simple contract. In three of those bonds Goodwin was bound with him as surety; and afterwards Goodwin gave his own bond alone to one of the creditors, to whom Smith was bound in a single bond. Smith, being thus indebted, made his will, and in the beginning of it, says, '■'■my ivill is, that all my debts be paid; and I do charge all my lands ivifh the payment thereof.'^ Then came the clause, upon which, together with the other circumstances of the case, the present question principally determines. "Item. — I give all my real and personal estate to Goodwin, to hold to him, his heirs, executors, administrators, and assigns, chargeable, never- theless, with the payment of all my debts and legacies.^^ Of this will he made Goodwin his executor. * The testator died in 1724; Goodwin proved the will, and [ * 73 ] in that same year sold a freehold estate of the testator's to Hunt; in the year following sold a leasehold estate of the testator's 143 * 74: ELLIOT V. MERRYMAN. to "Wright; and, in 1727, sold another estate of the testator's consist- ing of both freehold and leasehold, to Merryman. In the several deeds by which these estates were conveyed from Goodwin to the purchasers, the will of Smith was recited; and to one of those deeds Elliot, a creditor of Smith's, was a subscribing witness. These lands were sold in the neighbourhood by outcry. At the time of these sales, the creditors, all of them, either lived in the town where Goodwin lived, or within three or four miles of it. During all this time, and till the year 1730, the creditors went on regularly receiving their interest, which was at 5Z. per cent., of Goodwin. Goodwin was a solvent man till 1732, and then he be- came a bankrupt. In 1734 the present bill was brought by the creditors of Smith against the purchasers of these lands that have been mentioned, against Goodwin, and against the assignees under his commission, in order to have a satisfaction of their debts out of those lands which were sold by Goodwin. Mr. Chute argued on the part of the plaintifPs, and for authority cited 2 Vern. 528 (o), 616 (p), Pagett v. Hoskins, in Precedents in Chancery (q), and the case of Morley v. Wehh, determined by the present Chancellor [Lord Hardwicke]. Mr. Idle, on the same side, cited 2 Vern. 444 (r); and on the same side Mr. Murray cited the case of Nugent v. Gifford, (s), de- termined by the present Chancellor. Mr. Broivn argued as counsel for Hunt and Wright, and for au- thority cited 2 Cha. Ca. 115 (t), and the case of Abbott v. Gibbs (w). Mr. Noel argued on the same side, and cited 1 Vern. 45 (v), 411 (to) and Williams, 430 (x). Mr. Hoskins argued as counsel for Merryman, and cited 1 Vern. 303 (y). [ * 74 ] * The Hon. John Verney, M. R. — His Honor said, his opin- ion was that the plaintiffs were not entitled to the relief (o) Chadwick i\ Doleman. (p) Crane v. Drake. (q) Prec. Ch. 431. (r) Humble v. Bill. (s) 1 Atk. 463. (<) Culpepper ?'. Aston. (m) 1 Eq. Ca. Abr. 358. (t) Newman v. Johnson. (w) Clowdsley v. Pelham, (x) Freemoult i'. Dedire, 1 P. Wms. 430. {y) Spalding v. Chalmer, 144 ELLIOT V. MERRYMAN. * (5 they sought by the bill. He said it was very true, that it was almost impossible to make a determination iu the present case, but that it must fall out unfortunately on the one party or the other. The dispute arising between creditors on the one side, and purchasers on the other, both these sorts of persons are entitled to the favour of this Court; and in the present case a misfortune must fall upon one of them. On whom it is to fall is the question. And this is a question that must so frequently have happened, that it is extraor- dinary to find no detei'mi nation directly in point. The case is this: — Thomas Smith, being possessed of a real and personal estate, was indebted to several persons by bond, in three of which bonds Goodwin was bound with him as Hurety; and he had contracted likewise some other debts; and being thus indebted he makes his will to the following effect. The will begins with this introduction: — "My will is, that all my debts be paid; and I do charge all my lands with the payment thereof. Item. — I give all my real and personal estate to Goodwin, to hold to him, his heirs, executors, administrators, and assigns, chargeable never- theless with the payment of my debts and legacies." 'Tis indeed true that these words do not amount to a devise of the lands to be sold for the payment of the debts; and they only import a charge upon them for that purpose. However, this is such a devise as is within the meaning of the proviso of the Statute of Fraudulent Devises (3 W. & M. c. 14, repealed by 11 Geo. 4 & 1 Will. 4, c. 47), and does interrupt the descent to the heir-at-law. By this will the de- visee was made executor. The testator died in 1724. Goodwin paid interest for the debts at t>l. per cent, regularly till 1730. After the testator's death, three sales of this estate were made by Goodwin: one, of an estate which was entirely freehold; the other, of an estate entirely leasehold; and a third, consisting of freehold and leasehold both. * The bill in general is brought by the creditors of Smith [ * 75 ] against the purchasers, in order to have a payment of their debts out of the lands of Smith, which were sold to them by Good- win. With regard to the leasehold estate, the case is so extremely plain, that the sale of that must stand, and that the creditors cannot have a satisfaction out of it, that his Honor said it would be monstrous to call it in question. The executors are the proper persons that, by law, have a power to dispose of a testator's personal estate. 'Tis 10 WHITE ON EQUITY. 145 * 76 .ELLIOT V. MERRY MAN. indeed true that personal estate may be clothed with such a particu- lar trust (z), that it is possible the Court in some cases may require a purchaser of it to see the money rightly applied. But unless there is some such j^cirticular trust or a fraud in the case, it is im- possible to say but the sale of a personal estate, when made by an executor, must stand ; and that after the sale is made, the creditors cannot break in upon it. His Honor said, he would now consider the other sales that have been made, and would examine those, first upon the general rules of the Court, and in the next place upon the particular circumstances which this case is attended with. With regard to the first of these matters, the general rule is that if a trust directs that land should be sold for the payment of debts generally, the purchaser is not bound to see that the money be rightly applied. On the other hand, if the trust directs that lands shoidd be sold for the payment of certain debts, mentioning, in particidar, to whom those debts were owing, the purchaser is bound to see that the money be applied for the payment of those debts. The present case, indeed, does not fall within either of these rules, because here lands are not given tobe sold for the payment of debts, but are only charged with sucli payment. However, the ques- tion is, ivhether that circumstance makes any difference. And his Honor ivas of opinion that it did not. And if such a distinction was to be made, the consequence would be, that whenever [ * 76 ] lands * are charged with the payment of debts generally, they could never be discharged of that trust without a suit in this Court, which would be extremely inconvenient. No instances have been produced to show that in any other respect the charging lands ivith the payment of debts differs from the directing them to be sold for such a purpose; and there- fore there is no reason that there should be a difference established in this respect. The only objection that seemed to be of weight with regard to this matter is, that where lands are appointed to be sold for the payments of debts generally, the trusts may be said to be performed as soon as these lands are sold; but where they are only charged with the payment of debts, it may be said that the trust is not performed till those debts are discharged. And so far, indeed, is true that where lands are charged with the payment of annuities, those lands will be charged in the hands of "the pur- {z) See Bonney v. Ridgard, 4 Bro. C. C. 130; 1 Cox, 145. 146 ELLIOT V. MERRYMAN. * 77 chaser (a), because it was the very purpose of making the lands a fund for that payment, that it should bo a constant and subsisting fund; but where lands are not burdened with such a subsisting charge, the purchaser ought not to be bound to look to the ap})li- cation of the money; and that seems to be the true construction. Having thus considered the case under the general rule, his Honor said he would now consider it under the particular circum- stances that attend it; and the particular circumstances are such as are far from strengthening the plaintiff's case, but rather the con- trary. One of those circumstances is the length of time the plaintiffs have lain by, without at all insisting on any charge upon these estates. Goodwin was a solvent man till his bankruptcy, in 1732. Here have been three purchases of these estates, made at different times — the one in 1727, the other two in 1725 and 1724. The first of them was made by Hunt, the second by Wright, and the third by Merryman. During all these transactions the plaintiffs do not mention one word of their charge upon this estate; but, on the con- trary, regularly received their interest of Goodwin till the year 1730. It is indeed * true, that there is no express proof [ * 77 ] that the plaintiffs knew of these purchases, but there is reason to imagine that they did. The purchases were made in the neighbourhood by outcry; some of the creditors lived in the same town that Goodwin did; and all of them lived within three or four miles of him; and Elliott, one of the creditors, was a subscribing witness to one of the purchase deeds. The want of notice, too, on the part of the purchasers, is a considerable circumstance in their favour. It is indeed true, that they had notice that there were debts chargeable upon this estate; but it does not appear they knew to Avhom those debts were owing. Another circumstance is, that Goodwin was a co-obJigor iu three of these bonds, and to an- other of the obligees he afterwards gave his bond alone, which may well be considered as a satisfaction for that bond. By this it ap- pears that the creditors greatly relied upon Goodwin for their pay- master; and there is not much reason therefore that they should now be allowed to resort to the testator's estate. Upon the whole, his Honor's opinion was that the plaintiff's bills must be dismissed; and even with costs, as against Wright, there (rt) Not, it seems, if there is also a charge of debts. See Page v. Adam, 4 Beav. 269. 147 * 78 ELLIOT V. MERRYMAN. being no manner of pretence for the plaintiffs to come upon that estate, it being all leasehold and sold to Wright by the executor, who by law is the proper person entrusted to dispose of the testa- tor's personal estate. However, with regard to the rest of the de- fendants, his Honor said he would only dismiss the bill generally without costs; and so he was pleased to decree accordingly. Elliott V. Merryman is always cited as a leading case, wherever the question arises as to the liability of a purchaser to see to the application of his purchase-money. See Bonney v. Ridgard, 1 Cox, 147; jSVLeod v. Drummond, 17 Ves. 162; Shaiv v. Bonder, 1 Keen, 547; and Colyer v. Finch, 5 H. L. Cas. 923; where the rules laid down in that case were approved of and adopted. It will perhaps be more convenient, before examining the deci- sions upon this and kindred subjects, to notice the legislative [ * 78] * enactments, by which the law, as laid down by the Court, has been from time to time modified and altered. First it was enacted by the Act for Simplifying the Transfer of Real Property (7 & 8 Vict. c. 76, s.lO), taking effect fi^om December 31, 1844, that the bond fide payment to, and the receipt of, any per- son to whom any money should be payable upon any express or implied trust, or for any limited purpose, should effectually dis- charge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the con- ti'aiy should be expre'^sly declared by the instrument creating the trust or security. This Act was, however, repealed by the Law of Real Property Amendment Act (8 & 9 Vict. c. 106), which takes effect, as to this section of the repealed Act, from October 1st, 1845. With regard to wills executed whilst the Act 7 & 8 Vict. c. 76, was in force, such wills must be construed as having annexed to the trusts the incidents resulting from the then existing state of the law, and that the incidents of the trusts, as so defined, were not altered by the change in the law: 3 Dav. Conv. by Waley, 164. By the Property and Trustees Relief Amendment Act (22 & 23 Vict. c. 35), which came into operation on the 13//i August, 1859, it is enacted that " The bond fide payment to, and the receipt of any person to whom any purchase or mortgage money shall be payable upon any express or implied trust, shall effectually discharge the person paying the same from seeing to the application, or being answerable for the misapplication thereof, unless the contrary shall be expressly declared by the instrument creating the trust or se- curity " (sect. 23). It will be observed that the 23rd section applies only to payments made by or to x)urchasers and mortgagees. A more comprehensive power is given by Lord Cranworth's Act 148 ELLIOT V. MERRYMAN. * 79 (23 & 24 Vict. c. 145), passed the 28th August, 1860, which enacts that "the receipts in writing of any trustees or trustee, tor ani/ mo net/ payable to them or him, by reason or in the exercise of any trusts or powers reposed or vested in them or him, shall be sutli- cient discharges for the money therein expressed to be received, and shall effectually exonerate the persons paying such money from seeing to the application thereof, or from being answerable for any loss or misapplication thereof" (sect. 29). A subsequent section, however, enacts, that "the provisions con- tained in this Act shall, except as hereinbefoi'e otherwise provided, extend only to persons entitled or acting under a deed, will, codicil, or other instrument executed after the passing of this Act or under a will or codicil confirmed or revived * by a codi- [ * 79 J cil executed after that date" (sect. 34). The 29th section of Lord Cranworth's Act (23 & 24 Vict. c. 145) is repealed by the 71st section of the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), which came into opera- tion from and after the 31st of December, 1881. So that the 29th section of Lord Cranworth's Act only applies to receipts from trus- tees between the 28th of August, 1860, and the 31st of December, 1881. It is replaced by a much more comprehensive enactment in the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), whereby it is enacted that "the receipt in writing of any trus- tees or trustee for any money, securities, or other personal property or effects payable, transferable, or deliverable to them or him under any trust or power shall be a sufficient discharge for the same, and shall effectually exonerate the person paying, transferring or deliv- ering the same from seeing to the application or being answerable for any loss or misapplication thereof." Sect. 36, sub-s. 1. This section applies to trusts created either before or ^'■after the commencement of this AcV^ (sub-s. 2.) See In re lliomas'a Settle- ment, W. N. 1882, p. 7. Again, under the Settled Land Act, 1882 (45 & 46 Vict. c. 38), coming into operation, except as therein otherwise expressed, from and after the 31st of December, 1882, it is enacted that "the re- ceipt in writing of the trustees of a settlement, or where one trus- tee is empowered to act, of one trustee or the personal rep- resentatives or representative of the last surviving or continuing trustee^ for any money or securities paid or transferred to trustees, trustee, representatives, or representative, as the case may be, eff'ect- ually discharges the payer or transferor therefrom, and from being bound to see to the application or being answerable for any loss or misapplication thereof, and in case of a mortgagee or other person advancing money, fi-om being concerned to see that any money advanced by him is wanted for any purpose of this Act, or that no more than is wanted is raised." Sect. 40. Although recent legislation has rendered the subject of this note 149 * so ELLIOT V. MERRYMAN. of less practical importance, it is still necessary to bear it in mind, should cases occur which do not fall" within the meaning of the en- actments now to force, and, above all in the investigations of titles, in which it may often be necessary still to consider whether trus- tees had or not power to give receipts. [In the United States this doctrine was never received with any favor.] It is proposed now to consider: First, the liability of purchasers of real estate to see to the application of the purchase-money. Sec- ondly, as to whether charges of debts, legacies, or other specific sums on real estate, give power to the executors or devisees [ * 80 ] to sell. * Thirdly, how far real estate in the hands of an alienee of the devisee or heir-at-law is liable for debts. And fourthly, as to the liability of purchasers of personalty from execu.tors to see to the application of the purchase-money. 1. Liability of Purchasers of Real Estate to see to the Applica- tion of the Purchase-money.^ — From the decisions of the Courts, irrespective of the legislative enactments, which have just been noticed, it is clear that trustees in whom real property is vested, upon trust for sale, can at law give a valid discharge for the pur- chase-money, because they are at law the owners. In equity, how- ever, the persons amongst whom the produce of the sale is to be distributed are considered the owners; and Courts of equity have therefore held that a purchaser must obtain a discharge fi'om them unless the power of giving receipts is either expressly or by im- plication given to the trustees. If no such discharge is given, and the trustees have no power to give receipts, the estate, upon a mis- application of the purchase-money, will remain chargeable in the hands of the purchaser. Where a power of giving receipts is in express terms conferred upon trustees, the purchaser will not, in cases free from fraud and collusion, be bound to see to the application of the purchase-money. [If the settlor expressly provides that the receipt of the trustees shall be sufficient discharges of the purchase-money the cestui que trust cannot claim in opposition to the instrument, that confers upon them all their rights; in other words, they cannot claim under one part of the instrument, and reject the other parts: Perry on Trust, Sec. 791.] Where, however, no such power is in express terms given, much difficulty arises in ascertaining the liability of the purchaser, which depends upon the question whether a power of giving receipts can bo implied. One of the rules laid down in the principal case (if no such power be expressly given), and which is invariably followed, is, that, if a trust directs lands to he sold for payment of certain debts, mentioning in particular to whom thoi^e debts are owing, the pur- chaser is bound to see that the money is apx>lied for the p)aynient of 150 ELLIOT y. MERIIYMAN. * 81 those debts. Seo Dunch \. Kent, 1 Vern. 2G1 ; Culpepper v. Aston, 2 Ch. Ca. 228; Cotterell v. Hampson, 2 Vern. 5; Lloyd v. Baldicin, 1 Ves. 173; Ithell v. Beane, 1 Ves. 215; Dorcm v. Wiltshire, 3 Swanst. 701; Smith x. Guyon, 1 Bro. C. C. 180; RoSY. Giorgio, 2 Hare, 024. In cases coming within this rule, as the trusts are of a limited and definite nature, and such as a purchaser might withoiTt inconven- ience see properly performed, a power to give receipts cannot be im- plied. AVhere, however, trustees are directed to sell at a time when the persons amongst whom they are to distribute the proceeds of the sale are either not ascertainable or not of age, it must be implied that the settlor or testator intended by implication to confer upon the trustees a power of giving receipts, inasmuch as the money could not be ])aid at the time of the sale to any persons but the trustees. See Balfour \\ Welland, 10 Yes. 151; there a general assignment for the benefit of certain scheduled creditors, and all other ci'edi tors execut- ing the deed, was made to E. and F. upon trust, as soon as coni^en- ienthj might be, to sell the assigned property, anduith all convenient speed to make such dividends out of the proceeds among the cred- itors as therein mentioned; and the deed contained a provision limit- ing the time for creditors to execute the deed — six months for cred- itors in India, and eighteen months for those in Europe, unless they were disabled by minority, in which cases the same periods were to be allowed respectively after the disability had ceased. Upon an objection being taken by a purchaser from the trustees to the title of a leasehold house, on the ground that he was bound to see to the application of the money in satisfaction of the scheduled creditors 151 * 82 ELLIOT V. MEKRYMAN. and others coming within a limited time after the date of the deed, Sir William Grant, M. R., overruled the objection, upon the ground that the deed clearly conferred an immediate power of sale for a pur- pose that could not be immediately defined, \\z., to pay debts ichich could not be ascertained until a future and distant period. *' It is impossible," observed his Honor, " to contend, that the trustees might not have sold the whole property at any time they thought fit after the execution of the deed; and yet it could not be ascertained until the end of eighteen months who were the persons among whom the produce of the sale was to be distributed. If the sale might take place at a time when the distribution could not possibly be made, it must have been intended that the trustees should of themselves be able to give a discharge for the produce, for the money could [ * 82 ] not be * paid to any other person than the trustees. It is not material, that the objects of the trust may have been actually ascertained before the sale. The deed must receive its con- struction as from the moment of its execution. According to the frame of the deed, the purchasers were or were not liable to see to the application of the money ; and their liability cannot depend upon any subsequent event." See also Groom v. Booth, 1 Drew. 548. So, likewise, in Sowarsby v. Lacy, 4 Madd. 142, where A. devised certain lands to his children, the same to be sold when the executors and trustees of his will should see proper, and the purchase-money to be equally and severally divided amongst his children, some of whom were then infants, Sir J. Leach said, "It is plain the testator intended that the trustees should have an immediate power of sale. Some of the children were infants, and not capable of signing re- ceipts. I must, therefore, infer, that the testator meant to give to the trustees the power to sign receipts, being an authority necessary for the execution of his declared purpose." See also Lavender v. Stanton, 6 Madd. 46; Breedon v. Breedon, 1 Euss. & My. 413; Keon V. Magawly, 1 D. & W. 401. If, however, an estate is charged with a sum of money payable to an infant on his attaining his majority, the purchaser will be bound to see the money duly paid: Dickenson v. Dickenson, 3 Bro. C. C. 19. Where money to arise from a sale is not merely to be paid to cer- tain persons, but is to be applied by the trustees upon trusts requir- ing care and discretion, the presumption arises that the settlor in- tended to confide the execution of the trust to the trustees solely, and the purchaser will not be bound to see to the application of the purchase- money. Thus, in Doran v. Wiltshire, 3 Swanst. 699, the trustees were to receive the purchase-money, and to lay it out in lands to the uses of the settlement, and till that was done to invest it in the Government funds. Scott, Solicitor-General, urged that no good title could be made, because there was no clause in the settlement making the receipt of the trustees a good discharge to the purchaser. But Lord Thurloiv said, " As to the power which the trustees have 152 ELLIOT V. MERRYMAN. * 83 of giving a discharge, it is true, tbat, wbGn land is to be sold, and a particular debt is to be paid with it, tbe pnrcbasor is bound to see to the application of tbe purchase- money. But incases where the ap- plication is to a payment of debts generally, or to a general laying out of the money, he knew of no case which lays down, or any reason- ing in any case which goes the length of saying that a pur- chaser is so bound; and therefore, he conceived that the *re- [ * 83 ] ceipt of the trustees would be a good discharge in this case." See also Balfour^ v. Welland, 10 Ves. 151 ; Tait v. Lathhury, 35 Beav, 112; Ford v. Ryan, 4 Jr. Ch. Eep. 342. An authority given by a testator to trustees to lay out and invest money upon good security is an authority to do all acts essential to that trust, and necessarily, therefore, to give sufficient discharges to borrowers of that money; Wood v. Harnimi, 5 Madd. 308. Upon the same principle, where the trusts of a term were to raise a sum of money, but there was no express authority to give a re- ceipt for such sum, it was implied by the Court, from authority having been given to invest the money, and vary the investment. For "it is not reasonable," as observed by Sir J. Parker, V.-C, "to suppose that the testator, giving the trustees authority to change the investments, and to convert them from time to time, had denied to them authority to receive the money:" Locke v. Loiniis, 5 De G. & Sm. 320, 329. See Pell v. Ve Winton, 2 De G. & J. 13. Where, however, a testator gave a person like powers of sale and exchange as were contained in the will of another person, in which there were also powers to give receipts, the Court held that such person had not by implication a power to give receipts : Cox v. Cox, 1 K. & J. 251. Another rule laid down in the principal case id, '■'■that if a trust directs the land to be sold for the payment of debts generally, the purchaser is not bound to see that the money be rightly applied f [If the trust is generally to pay debts, the purchaser need not see to the application of the purchase money: Potter v. Gardner, 12 Wheat. 498, Hauler v. Shore, 5 Ired. Eq. 357 ; Goodrich v. Proctor, 1 Gray, 5*79; Laurens v. Lucas, 6 Rich. Eq. 217,] and it was, for the first time, there decided, ^''that it makes no difference ichether lands are given to be sold for the payment of debts or are only charged tcith such payment. The principle upon which this rule proceeds appears to be this : that, as it cannot be presumed that the settlor or testator could ex- pect a trust of so general and unlimited a nature to be undertaken by a purchaser, it is to be implied that it was the intention of the settlor or testator that the purchaser shoiald be exempt from the necessity of seeing to the application of the purchase-money: Wil- liamson V. Curtis, 3 Bro. C. C. 90; Smith v. Guyon, 1 Bro. C. C. 180, and Mr. Belt's note; Balfour v. Welland, 10 Ves. 151; Shaiv V. Borrer, 1 Kee. 559; Hardioicke v. Mynd, 1 Anst. 109; Barker v. Duke of Devon, 3 Mer. 310; Jiobinson v. Loicater, 17 Beav. 592; 5 153 * 84 ELLIOT V. MERRYMAN. De G. Mac. & G. 272; Dundas v. Blake, 11 Ir. Eq. Eep. 138, 156; Doivling v. Hudson, 17 Beav. 248; Storrij v. iraZ.s/i, 18 Beav. 559; Glynn v. LocA;e, 3 Dru. & W. 11, 22; Ford v. Rtjan, 4 Ir. Ch. Rep, 342. The rule also is applicable where the tnist is for the pay- [ * 84] ment of a jjarUciilay^ debt, and of the * testator's other debts: Robinson v. Loivater, 17 Beav.*592; 5De. G. Mac. & C. 272. So, also, where there is a trust or charge for the general payment «f debts, as well as for the payment of legacies, the purchaser will not be obliged to see to the application of the purchase money; [Dewey v. Buggies, 25 N. J. Eq. 35; Sims. v. Lively, 14 B. Mon. 435, Andrews v. Sparhawk, 13 Pick. 393,] for, as Lord Thurloiv ob- served, in Jebb v. Abbott (cited by Mr. Butler in his note on Co. Litt. 290, b), he cannot be expected to see to the discharge of legacies, which cannot be paid till after the debts. See als-o Beynon v. Gol- lins, cited also by Mr. Butler in the same note: Rogers y. Stcilli- corne, Amb. 188; Walker v. Flamstead, 2 Ld. Ken. 2nd part, 57; Bowling v. Hudson, 17 Beav. 248. The rule is also applicable where there is a devise or charge for the general payment of debts and annuities. See Page v. Adam, 4 Beav. 269; there a testator gave his real and personal estate to A. subject to the payment of his debts and certain annuities. It was argued, upon the authority of a dictum in the principal case, that annuity legacies charged upon land were different fi-om other lega- cies, inasmuch as it was intended that they should continue a charge upon the land. However, Lord Langdalc, M. Jl., held that A. could make a good title to tha real estate without the concur- rence of the annuitants, and that a purchaser from A. was not bound to see to the application of the purchase-money. "When," observes his Lordship, "an annuity is charged on land, and there is no devise for the payment of debts, and no general charge of debts, it must be deemed that the land was intended to be a constant and subsisting security for the payment of the annuity. But in the case of Elliot v. Merryman, where an expression to that effect is used, it was not considered, and the case did not require it to be consid- ered, whether, in a case in which both debts and annuities were charged, the lands would be charged with the annuities in the hands of a purchaser from the person whose duty it was to sell for payment of debts; and the opinion of Lord Eldon, as stated in the note to Jenkins v. Hiles, 6 Ves. 654, n., is, 'that where a man by deed or will charges or orders an estate to be sold for payment of debts generally, and then makes specific dispositions, the purchaser is not bound to see to the application of the piu'chase money. It is just the same as if the specific bequests were out of the will' Seeing no reason to differ from this opinion, and conceiving that an annuity legacy charged on the estate is, in the sense hero used, a specific disposition, subject to the payment of debts, I do not think that the rule ought to be departed from by reason of the nature of 154 ELLIOT V. merry:\l\n. * 86 the legacy," See Johnfion v. Kcnnetf, 3 My. & K. 624; EInnd V. * Eland, 1 Boa v. 23-"); S. C, 4 My. & Cr. 420. [ *85 ] Where there is a trust or charge for payments uf debts gen- erally and legacies, a purchaser, even after the debts have beenxjaid, and he is aware of their having been paid, will not, inasmuch as the rule is a[)plicable to the state of things at the death of the testator, be liable to see to the application of the purchase-money in pay- ment of the legacies. See Johnson v. Kennett, 3 My. & K. G24. [The purchaser will not be protected if he had any notice of an in- tention to misap])]y the purchase money: Shaw v. Spencer, 100 Mass. 388; AVilliamson r. Morton, 2 Md. Ch. 94; Clyde v. Simpson, 4 Ohio St. 445.] There the testator, subject to his debts and lega- cies, gave all his real and personal estate to his son absolutely, and the son thus became trustee for payment of debts and legacies, but subject to the charge, he was owner. The estate was then settled by the son, who afterwards sold it. Lord Lyndhurst, in reversing the decision of Sir L. Shadiv'ell, V.-C, observed, that it was said that the debts having been paid, and paid out of the personal estate, and nothing remaining but the legacies, the case fell within the general rule applicable to cases where legacies alone were charged upon the real estate. He found no aiithority for such a jiroposition; the rule applied to the state of things at the death of the testator; and if the debts were afterwards paid, and the lega- cies alone left as a charge, that circumstance did not vary the gen- eral rule. In Eland v. Eland, 4 My. & Cr. 429, Lord Cottenham, speaking of the rule, as laid down by Lord Lyndhurst, says: "I entirely concur in that opinion, otherwise the mortgagee must in every case in which there is a charge of legacies, ascertain whether the debts have been paid or not." See also Page v. Adam, 4 Beav. 2C)d. In Forbes v. Peacock, 1 Ph. 717, the testator charged his real es- tate with the payment of his debts, and directed it to be sold (but without saying by whom) upon the death of his wife, who was ten- ant for life, if not sooner disposed of, and the proceeds, with the residue of his personal estate, to be divided among certain of his relations. The executors being thus empowered to sell the real es- tate, the siirviving executor entered into a contract for that purpose with the defendant. Soon after the death of the widow (twenty- live years having elapsed since the testator's death), the defendant, by his solicitor, inquired whether there were any debts due from the estate which remained unsatisfied; and, if not, whether the cestuis que trust would give authority to sell. To this question no answer was returned. Sir L. Shadwell, V.-C, was of opinion that this, under the circumstances, amounted to notice to the purchaser that the debts were paid, and that he was therefore bound to see that the purchase-money was properly applied. See 12 Sim. 528. It followed, that the * concurrence of the cestuis [ * 86 ] que trust was necessary to enable the purchaser to make a 155 * 87 ELLIOT V. MERRYMAN. good title. Lord Lyndhurst reversed the decision of the Vice-Chan- cellor. " The estate," said his Lordship, " being charged in the first instance with the payment of debts, the defendant was not bound, ac- cording to the general rule, to see to the application of the pur- chase-money But assuming that the facts relied tipon in tfiis case amount to notice that the debts had been paid, yet, as the executor had authority sell, not only for the payment of debts, but also for the purpose of distribution among the residuary legatees, this would not afford any inference that the executor was commit- ting a breach of trust iu selling the estate, or that he was not per- forming what his duty required. The case, then, comes to this: if authority is given to sell for the payment of debts and legacies, and the purchaser knows that the debts are paid, is he bound to see to the application of the purchase- money ? I apprehend not. In the case of Johnsoyi v. Kennett, where it was contended that the rule did not apply, because the debts had been paid before the sale took place, I held that the rule had reference to the death of the testator; and, therefore, that even supposing the debts were paid before the sale took place, and that the legacies alone remained as a charge, that circumstance would not vary the general rule." In a note by the learned reporter appended to Forbes v. Peacock (1 Ph. 722), he says: " If, notwithstanding this decision, it should still be inferred from the terms of the dictum in Johnson v. Kennett (3 My. & K. 624), that the rule would not apply to a case in which it should happen that there were no debts due at the testator's death, and that the purchaser knew it, I have the authority of Lord Lyndhurst for stating that he did not intend, on that occasion, to lay down any rule which should govern such a case; and that the guarded and somewhat qualified terms in which the dictum is re- ferred to and adopted in this case, were used for the express pur- pose of excluding that inference." See 1 Ph. 722, n. Lord St. Leonards, however, in a subsequent case, with reference to what fell from Lord Lyndhurst in Johnson v. Kennett (3 My. & K. G29) and. Forbes v. Peacock (1 Ph. 717), and the note of the reporter, makes the following useful observations : "I cannot think that a satis'factory settlement of this important point. The differ-' ence is this: — Lord Lyndhurst represents the Vice-Chancellor as saying that if there be a general charge of debts and legacies, the purchaser is absolved from seeing to the payment of the legacies on account of the charge of debts, but if the charge of debts r* 87 ] has been satisfied, and the * purchaser knows it has been satisfied, he is then in the same situation as if there was only an original charge of legacies, and he is bound to see to the appli- cation of the purchase-money; but to this Lord Lyndhurst ansyxers, that the rule is different, and that if there is a general charge of debts, the case must be taken as it stood at the death of the testa- tor, and if there were (iebts then, although they were afterwards satisfied, the purchaser is not liable. Then he says, as I under- 156 ELLIOT V. :merryman. * 88 stand by the note, that ho did not mean to decide that if there were no debts at the death of the testator, the purchaser was not bound. I cannot, however, follow that distinction. The case must stand upon one of two grounds: either that there are no debts within the knowledge of the purchaser (and then it is indifferent whether there were no debts at the death of the testator or no debts at the time of the purchase) or (which is more satisfactory and open to no ambiguity), on the ground that, when a testator by his will charges his estate with debts and legacies, he shows that he means to en- trust his trustees with the power of receiving the money, anticipat- ing that there will be debts, and thus providing for the payment of of them. It is by implication a declaration by the testator that ho intends to entrust the trustees with the receipt and application of the money, and not to throw any obligation at all upon the pur- chaser or mortgagee. That intention does not cease because there are no debts; it remains just as much if there are no debts, as if there are debts, because, the power arises from the circumstance that the debts are provided for, there being in the very creation of the trust a clear indication amounting to a declaration by the tes- tator that he means, and' the nature of the trust shows that he means, that the trustees are alone to receive the money and apply it. In that way all the cases are reconcilable, and all stand upon one footing, viz., that if a trust be created for the payment of debts and legacies the purchaser or mortgagee shall in no case be bound to see to the application of the money raised. This would be a con- sistent rule, on which everybody would be able to act, authorised, too, by the words of the testator, and drawing none of those fine distinctions which embarass Courts and Counsel, and lead to liti- gation; and it is one to which I shall adhere as long as I sit in this Court." Stroicghill v. Aristey, 1 De Gr. Mac. & G. 652. And see Carlyon v. Truscott, 20 L. R. Eq. 348. "With reference to the ground upon which Lord Lyndhurst decided the case of Johnson v. Kennett, Lord St Leonards said that it was not altogether satisfactory. "The son," said his Lordship, "being absolute owner of the * estate, subject to the debts [ * 88 ] and legacies, was at liberty to settle it to uses for himself just as he thought proper, and when he sold he sold as owner as well as trustee, and a sale was no breach of trust; it was a sale by him in his proper character, but still subject in equity to the pay- ment of the debts and legacies. He stood in the same situation as an heir-at-law, who, being liable to the testator's debts, has power to dispose of the estate by sale, if he thinks proper, but is bound to apply the money that he receives from the sale in payment and satisfaction of the debts, and this Court will compel him to do so, and will not allow him to divert the money to other purposes." See StroughiU v. Anstey, 1 De G. Mac. & G. 650. The liability to debts imposed by statute upon real estates of de- ceased persons has not the same operation as a charge of debts by 157 * S9 ELLIOT V. MERRYMAN. such persons, and a purchaser is still bound to see to the applica- tion of the purchase-money in payment of legacies charged on such estates unaccompanied by a general charge of debts. See Horn v. Horn, 2 S. & S. 448. [The American rule is much less strict regarding the application of the purchase money, than the English: Redheimer v. Pyron, 1 Speer'sEq. 141; Eutledge v. Smith, 1 Bush. Eq. 283.] Where a trader devised his estates, subject to the payment of legacies, it was contended, that as the real estate of a trader was by the Debts of Traders Act, 47 Geo. 3, c. 74 (repealed, and the pro- visions thereof enlarged by 1 Will. 4, c. 47), subject to debts gen- erally, the purchaser was discharged from the obligation to see that his money was applied in payment of the legacies, as he would have been if the estate had been charged by the testator with payment of his debts. However, Sir J. Leach, V.-C, held, that the statute made no difference in this respect. The principle of this decision applies to Lord Romilly's Act (3 & 4 Will. 4, c. ,104), which makes the real estates of all persons, who die after the 29th of August, 1833, liable to simple contract debts. See Shaiv v. Borrer, 1 Kee, 566, 577; Ball v. Harris, 4 My. & Cr. 268; Jones v. Noyes, 4 Jur. N. S. 1033. Where a testator charges his land with the payment of his debts and devises it to trustees upon trust for others, the purchaser is not bound to see to the application of his purchase-money; for, as be- fore observed, the charge is equivalent to a trust, and the same effect will be given to it by a Court of equity as if a direct devise had been made to trustees for payment of debts. Whether the ex- ecutor alone can in such cases sell will be hereafter discussed; it is, however, clear that the devisee in trust and the executor between them, or a person in which those two characters are combined, may sell and make a good title to the estate. In Shaw v. Borrer, 1 Kee, 559, a testator, after commencing his will with words amount- [ * 89 ] ing to a charge of his real estate with payment *of his debts, devised an advowson to trustees, upon trust to present his youngest son to the living when vacant, and subject thereto, in trust to sell and apply the produce of the sale for the special purposes therein mentioned; and he devised his residuary real estate, upon certain trusts, to other trustees and appointed three executors (who proved his will), one of whom was his youugest son, and another, one of the trustees of the adowson. The personal estate being in- sufficient for the payment of debts, the trustees of the advowson, one of whom was an executor, at the instance of the other executors, contracted to sell the adowson, before any vacancy had occurred in the living. In a suit for specific performance by the plaintiffs, the trustees of the advowson, and the executors, against the purchaser, it was held by Lord Langdale, M. R., that, the charge being in effect a devise of the real estate in trust for the payment of debts, a good title could be made by the plaintiff's, without the institution 158 ELLIOT V. MERRYMAN. * 00 of a suit to ascertain the deficiency of the personal estate, and tliat the purchaser was not bound either to irK[uire whether other suffi- cient property ought first be applied in payment of debts, or to see to the application of the purchase money. "It seems clear," said his Lordship, "that a charge of this nature has been and ought to be treated as a trust, which gives the creditors a priority over the special purposes of the devise; and no doubt is raised but that, on the ai)j)licationof the creditors, the Court would, in a suit to which the executors were parties, compel the trustees, for special purposes, to raise the money requisite for payment of the debts. If so, is there any good reason to doubt, but that the trustees and executors may themselves do that which the Court would compel them to do on the application of the creditors ? " Such charge of debts will also authorise a mortgage of the estates upon which they are charged. See Ball v. HaiTis, 4 My. & Cr. 264. There Lord Cottenham, approving of the decision in Shaw v. Borrer, 1 Kee. 559, held, that a charge by will of real estates with the pay- ment of debts, generally, authorised a trustee, who teas also executor, to w^hom, after imposing that charge, the testator had devised the estate, upon trusts for other persons, to make a mortgage (being a conditional sale) of lands purchased under a power and conveyed to him upon the trusts of the will, and exempted the mortgagee from liability to see to the application of the mortgage money. See also Walkers. Smallivood, Amb. 676; Jenkins \\ Hiles, 6 Ves. 654, note; Bailey v. Ekins, 7 Ves. 323; Doltony. Hewen, 6 Madd. 9; Johnson V. Kennett, 3 My. & K. 624; Eland v. Eland, 1 Beav. 235; 4 My. & Cr. 430; Page v. Adam, 4 Beav. * 269; Forbes v. [ * 90 ] Peacock, 1 Ph. 717. And where a direction to executors to pay debts is followed by a devise of real estate to the executors, either as such or in their own names, and they take the legal estate, and whether they take the beneficial interest for themselves or in trust for others, they have a power to sell for payment of debts, and convey the legal estate, and ordinarily a purchaser is not bound to inquire as to whether the debts or legacies have been paid: In re Tanqueray-Willaume and Landau, 20 Ch. D. 465, 479. A purchaser is not bound to ascertain how much land it is necessary to sell for payment of debts, for, as observed by the Lord Keeper in Spalding v. Shalmer, 1 Vern. 303, "if more be sold than is sufficient to pay the debts, that shall not turn to the prejudice of the purchaser, for he is not obliged to enter into the account; and the trustees cannot sell just so much as is sufficient to pay the debts." See also Thomas v. Toicnsend, 16 Jnr. 736. Where, moreover, lands are devised to trustees upon trust to raise so much money as the personal estate shall fall dejicient in paying the testator's debts and legacies, the purchaser is not bound to inquire whether the real estate is wanted or not. Secus if the trustees have a jjoicer merely to raise money upon the deficiency of 159 * 91 ELLIOT V. MERRYMAN. the personal estate, for unless there was a deficiency the power never arose, and consequently the purchaser would take no estate by the supposed execution of it. See Culpepjier v. Aston, 2 Ch. C. 115, 223; Dike v. Ricks, Cro. Car. 335; Pierce v. Scott, 1 Y. & C. Exch. Ca. 257; Butler's note to Co. Litt. 290, b.; Bird v. Fox, 11 Hare, 40. [If it' appears to the purchaser that he is baying trust property, he will be put upon no inquiry, except to ascertain whether the trustee has power to change or vary the securities: Perry on Trusts, sec. 814] In a case where a testator, "in case his personal estate should be insufficient for the payment of his debts," charged them upon his real estate; it was held by Lord Romilly, M. E., that the executor had an implied power to sell and give valid receipts for the pur- chase-money, without showing the insufficiency of the personal estate although thirteen years had elapsed since the testator's death: Gree- thaiii V. CoUon, 34 Beav. 615. Where a trustee for the sale of real estate, with power to give receipts and being entitled beneficially to a share of the proceeds of the sale, has judgments registered against him; it seems that a purchaser, with notice of the judgments, may be bound to see to the application of the purchase-money in payment of the judgments. See Drummond v. Tracy, Johns. 610. "Where, however, a testator gave all his real and personal estate to his daughter upon trusts for sale and conversion, and to hold the proceeds for herself and two others equally with the [ * 91 ] usual receipt * clause, and appointed her executrix; it was held by ^\rW. Page-Wood, V.-C, that the daughter having married and afterwards sold the land, could, with her husband's concurrence, effectually discharge the purchaser, notwithstanding judgments registered against the husband between the date of the sale and the completion: Drummond v. Tracy, Johns. 608. The rule, that a purchaser is not bound, where the debts are charged generally, to see to the application of the purchase-money, " is,'^ as observed by Lord Cottenham, " subject to this obvious ex- ception: that, if a purchaser or mortgagee is a party to a breach of trust, it can afford him no protection. One obvious example is where a devisee "has a right to sell, but he sells to pay his own debt, which is a manifest breach of trust, and the party who^ concurs in the sale is aware or has notice of the fact that such is its object": Eland v. Eland. 4 My. & Cr. 427. See also Rogers v. Skillicorne, Ambr. 189; Wafkins \. Cheek, 2 S. & S. 199; Burt \. Trueman,Q Jur. N. S. 721 ; 8 W. E. (V.-C. K.) 035; Hoivard v. Chaffer, 2 Drew. & Sm. 236; Stroughill v. Anstey, 1 De G. Mac. & G. 648; Colyer v. Finch, 5 Ho. Lo. Ca. 923. [If it appears to the purchaser in any way, that the sale which is made is a breach of trust, or is made for the^ purpose of misapplying the money, or to secure a private debt of the trustee, the purchaser will be liable to the cestui que trust: Ashton V. Atlantic Bank, 3 Allen, 219; Leitch v. Wells, 48 Barb. 637; 160 ELLIOT V. MERRYMAN. , * 5^2 Bingham v. Stewart, 13 Minn. 106; Sturtovant v. Jaquos, 14 Allen, 528.] Another example is where the power to sell the real estate is only in case of a deficiency of the personal estate, and the purchaser has notice that the personal estate is ample and that the debts have been paid; for inasmuch as he has then notice that what is intend- ed to be done is a breach of trust, he would therefore by becoming a purchaser concur in such breach of tntst, and thereby become re- sponsible: Carlyon v. Truscott, 20 L. K. Eq. 351. This case is dis- tinguishable from that of Forbes v. Peacock (1 Fh. 717), ante, p. 85, as what Lord Lyndhurst there held was, that where there was a power to sell for payment of debts and legacies, then inasmuch as, if the property was sold for payment of debts, there was under the general rule an undoubted power to give receipts; the combining of legacies with debts implied also a power to give receipts even if the debts were paid. The burthen of proving that a mortgagee or purchaser had such notice lies upon a creditor of the testator who impeaches the valid- ity of the mortgage or purchase: Corser v. Carticright, 8 L. R. Ch. App. 97; 7 L. II. Ho. Lo. 731 ; Oram v. Richardson, W. N., 27 Jan., 1877, p. 13. Mere absence of statement of the purpose for which the money obtained by the sale or mortgage is to be used, will not make the purchaser or mortgagee liable, on the ground of a presumed knowl- edge that the money was to be applied otherwise than for the pay- ment of the testator's debts. {lb.) * And the fact that an executor, who is also devisee, has [ * 92 ] mortgaged his private property together with the prop- erty devised to him charged with payment of debts, will not raise a presumotion against him that he was not acting in the ordinary discharge of his duty as executor: Barrov v. Griffith, 13 W. R. (V.- C. S.)41; 11 Jur. N. S. 6. Where however trustees, instead of selling under a potcer in a will, raise money by mortgage in a manner not authorised by the power, many years after the death of the testator, the mortgagee being party to a breach of trust, his security will be invalid. [See Duncan v. Jandon, 15 Wallace, 115; Bayard v. Farmers & Mechan- ics' Bank, 52 Pa. St. 222; Baker v. Bliss, 39 N. Y. 70.] Thus, in Stroughill v. Anstey, 1 De G. Mac. & G. 635, where a testator by his will, after appointing three persons his executors, gave to them the residue of his personal estate, and directed them, or the other trus- tees to be appointed under the provisions contained in his will, to stand possessed of his residuary personal estate, upon trust at such time or times as to them should seem meet, to sell and convert into money all such part thereof as should not consist of money, and invest the produce in securities, and to stand possessed of the same, upon trust thereout to pay his funeral expenses and debts, and certain large legacies which he specified, and to stand possess- 11 WHITE ON EQUITY. 161 * 93 . ELLIOT V. MERRTMAN. ed of the residue for his two sons equally; and the will contained a clause which, according to the consiruction put upon it by the Court, empowered the trustees to give receipts. Sixteen year?, after the death of the testator, the then acting trustees of the will, who were not the executors, raised money iqjon a deposit of the title- deeds of two leasehold houses, part of the testator's residuary es- tate. It was held by Lord St. Leonards, C, dismissing a claim fil- ed by the mortgagees to enforce their securities, that inasmuch as the trusts of the will showed a conversion, out and out, of t-lie tes- tator's property, to be absolutely necessary, the trustees were not authorised in raising money by mortgage. In giving judgment, his Lordship made the following important observations upon the subject, whether a power of sale authorises a mortgage: " The first question," said his Lordship, " is, whether a mortgage was or was not authorised by the trusts of this will. 'And in addressing my- self to this point, it ought, I think, to be considered, that in a case where trustees have a legal estate, and are to perform a particular trust through the medium of a sale, although a direction for a sale does not properly authorise a mortgage, yet where the circumstan- ces would justify the raising of the particular charge by a mort- gage, it must be in some measure in the discretion of the Court whether it will sanction that particular mode or not. It [ * 93 ] may be * the saving of an estate, and the most discreet thing that can be done; and as the legal estate would go, and as the purposes of the trust would be satisfied, I think it im- possible for the Court to lay down, that in evei-y case of a trust for sale to raise particular sums, a mortgage might not, under circum- stances, be justified. As a general rule, however, there can be no difficulty in saying, that a mortgage under a mere trust for conver- sion, out and out, is not a due execution of that trust; and looking at the nature of the property in the present case, which was lease- hold, and which, as being varying property, would, as a matter of course, be directed to be converted into money, where, under a gen- eral gift, it was to go to different parties, having different interests, it is impossible to say that this Court could allow the property to remain unconverted under an absolute trust for conversion out and out; and the trustees to deal with it, as if it were property that was to be enjoyed in specie. In the present instance, the trustees went on, receiving the rents, and accounting to the persons who were en- titled to the benefit of the purchase-money of the property produc- ing the rents; and this was done where the will contained a trust that, with all convenient speed after the testator's death, the prop- erty should be converted out and out, not simply for the purpose of paying a charge, which might be more conveniently raised by a mortgage, but for the purpose of conversion. One of the objects of conversion was to pay debts; but there were other and final objects which rendered a conversion out and out absolutely necessary; namely, the dedication of the trust monies to raise particitlar sums 162 ELLIOT V. MERRY MAN. * 04 according to the testator's will; and, therefore, to continue ihe pro- perty unconverted was to set aside the testator's will instead of ex- ecuting the trusts of it; and if the trusts had been properly exe- cuted, the fraud which has been perpetrated could not have taken place." See also M'Neillie v. Acton, 4 De G. Mac. & G.'744; Hal- denhy v. Spofforth, 1 Beav. 390; Raikes v. Hall, cited 1 De^G. Mac. & G. 646; Mather v. Norton, 16 Jur. 809; 21.L. J. Ch. 15; Vevaynes v. Nohle, 2 1 Beav. 87 ; Colijer v. Finch, 5 Ho. Lo. Ca. 923. With reference to the distance of time that had elapsed from the death of the testator to the deposit of the deeds, his Lordship ob- served, " That people who deal with trustees raising ruoney at a con- siderable distance of time, and without any apparent reason for so doing, must be considered as under some obligation to inquire, and look fairly at what they are about. I do not mean to encumber or to lessen the security of purchasers or mortgagees under trusts; but if for a great number of years a trust, such as that here, * remains unperformed, and parties are found in possession [ * 94 ] and receipt of the rents of the trust property, and then an application is made of it without their concurrence by the trustees, it may place those who deal with the trustees in a situation of hav- ing it established that there was a breach of trust, of which they ought to have taken notice:" Stroughill v. Anstey, 1 De G. Mac. & G. 654. See and consider Charlton v. Earl of Durham, 4 L. R. Ch. App. 433. The question as to what period of time is sufficient to raise a pre- sumption that debts have been paid, so as to make it the duty of a purchaser to make inquiries, has, after some conflict of judicial opin- ion {Sabin v. Heape, 27 Beav. 553; Forbes v. Peacock, 12 Sim. 528), been settled at the period of twenty years from the death of the tes- tator. " I think," said Jessel, M. R., it is desirable that a rule should be laid down upon which parties may act without coming to a Court of equity and in my opinion the reasonable period is twenty years. The reason why I say twenty years is this: that is the period of lim- itation for a specialty debt, and we know as a fact that most land- owners owe mortgage debts. It therefore seems reasonable to say that after the lapse of twenty years, which is sufficient to bar mort- gage debts and all other specialty debts, there is a presumption that the debts are paid, especially when you tind a beneficiary in the en- joyment of the estate — a circumstance mentioned by Lord St. Leon- ards in Stroughill v. Anstey (1 De G. Mac. & G. 654). . . . "Where you find a beneficiary in possession, and twenty years have elapsed, I think it is fair to presume that the debts have been paid, and in such a case I think that a purchaser is bound to inquire:" In re Tanqueray-WiUaume and Landau, 20 Ch. D. 480; in which case, as ten years and a half only had elapsed, it was held that presumption of payment of the debts did not arise, and that therefore the pur- chaser not being bound to make any inquiries as to their payment, 1G3 * 95 ELLIOT V. MERRYMAN. a good title might be made by the executors, who were also owners of the real property charged with payment of debts. But a mortgagee in such cases will be entitled to stand as a cred- itor on the produce of the estates, to the extent to which the mort- gage money has been promptly applied: Devaynes v. Robinson, 24 Beav. 86. Another exception is, where the purchaser has notice of a suit hav- ing been instituted, which takes the administration of the estate out of the hands of the trustee: Lloyd v. Baldwin, 1 Ves. 173; Walker V. Sinalwood, Amb. 676. It may be here mentioned, that a question may arise of this nature: assuming that trustees for sale have no power to give receipts, [*95] *can they, by conditions of sale, compel a purchaser to be satisfied with their receipts alone? It seems that they can (Groom v. Booth, 1 Drew. 548), unless the conditions are framed so as to mislead the purchaser (lb. p. 565); or the Court would, by en- forcing specific performance, cause a breach of trust (lb.); at all events, it has been held too late to take an objection to such a con- dition on exceptions, after a decree for specific performance, and the usual reference as to title: Wilkinson v. Hartley, 15 Beav. 183. The difficulty arising from the absence of a receipt clause has sometimes been got rid of by proceedings under the Leases and Sales of Settled Estates Act (19 & 20 Vict. c. 120; Carlyon v. Trus- cott, 20 L. R. Eq. 352), and sometimes bv payment of money into Court under the Trustee Relief Acts (10 & if Vict. c. 96; 12 & 13 Vict. c. 74), (see Cox v. Cox, 1 K. & J. 251); but the application of this relief to the cases under consideration under the last-men- tioned Acts is doubtful; and it has been decided that the purchaser of an estate subject to a pecuniary charge cannot avail himself of those Acts: In re Buckley's Trust, 17 Beav. 110. 2. Whether Charges of Debts, Legacies, or other specific Sums on Real Estate give j^oiver to the Exectdors or Devisees to Sell.^^ — The question has been much discussed by the decisions of the Court, previous to legislative enactments, w^hich will be afterwards noticed, whether a general charge of debts upon real estate authorises a sale by the executors. It is laid down broadly by Sir L. Shadwell,Y. C, in Forbes v. Peacock, (12 Sim. 541; overruled upon another point, 1 Ph. 717), that "if a testator charges his real estate with payment of his debts, that, primd facie, gives his executor power to sell the estate, and to give a good discharge for the purchase-money." If the learned Vice Chancellor meant, that such a charge gave a legal power to the executors to sell, the subsequent authorities render it necessary that his proposition should to some extent be modified. The first case which it is important to notice is that of Shaw v. Borrer, 1 Keen, 559, ante, p. 88. There, in a will containing a general direction to pay debts, so expressed as to constitute a charge 164 ELLIOT V. MERRYMAN. * OG on all the testator's real estates, followed by a devise of a particular portion of the real estate to trustees for a special purpose, aud a residuary devise of real estates for other special purposes, no suit had been instituted in equity to ascertain the deficiency of the per- sonal estate to pay the debts; and the question was, whether the trustees and executors together could make a title to the pur- chaser of that part of the real estate which was devised to * trustees for special purposes. It was argued, that such a [ * 96 ] sale could only be effected under the decree of a Court of equity for the administration of the testator's estate; but Lord Langdale, M. K, held that a good title could be made. "It seems to be clear," said his Lordship, "that a charge of this nature has been, and ought to be, treated as a trust, which gives the creditors a priority over the special purposes of the devise; and no doubt is raised but that, on the application of the creditors, the Court would, in a suit to which the executors were parties, compel the trustees, for special purposes, to raise the money requisite for the payment of the debts. If so, is there any good reason to doubt but that the trustees and executors may themselves do that which the Court would compel them to do on the application of the creditors ? Shmv V. Borrer was approved of by Lord Cotfenham in the case of Ball v. Harris (4 My. & Cr. 264), where he held that an executor who was also trustee of the real estate for other persons, there being a general charge of debts, had power to sell or mort- gage the estate. [Perry on Trusts, Sec. 802-805.] Now, in the first of these cases, it will be observed that the trus- tees joined with the executors in the sale; and, in the second, that the executor was also trustee, so that, as no difficulty arose with respect to the conveyance of the legal estate, a good title could be made; in the first case, by the trustees and executors; and in the second case, by the executor, acting in a double capacity alone. In a subsequent case, on a bill for specific performance, it was held that where there was a general charge of debts the executor had a power to sell; but the question whether the power of sale was legal, so as to preclude the necessity of the party in whom the legal estate was vested (in that case the heir-at-law) from joining in the conveyance, was left undecided. See Gosling v. Carter, 1 Coll. 644. There the testator, after giving a general direction for payment of his debts, gave and bequeathed all his real and personal estate to his wife for life, with a direction to sell the same, and divide the proceeds after her decease; and he made his wife and an- other person executrix and executor. The executrix and executor sold the real estate by auction; and upon a bill filed by them against the purchaser, it was held by Sir J. L. Knight-Bruce, Y.-C, that they had an implied power to sell the estate for payment of debts, but that the dependent ought not to be compelled to complete the purchase without a conveyance from the heir-at-law. "There is," said his Honor, "an implied power of sale, because the life interest 165 * 98 ELLIOT V. MERRYMAN. of the wife is subject to the general charge for payment of [ * 97 ] debts; therefore, *in a sense, and in a manner, there does exist a power of selling during the lifetime of the wife, there being debts, which fact is proved. And I am of opinion, that there is upon this will an intention exhibited, that a sale, if made, should be made by the executors, or one of them, and not other- wise. The next question is, whether this intention is expressed so as to create a legal power? in which case, the concurrence of the heir-at-law would not be necessary. I am of opinion this ques- tion is one of too great nicety and difficulty to decide against the purchaser. If he wishes the conciu-rence of the heir he must pay, or not pay, for the discovery of the heir, according to his contract. Upon that I give no opinion. But I think that in this suit he is not to be compelled to take the title from the executor and execu- trix without the concurrence of the heir. I decide, therefore, with- out prejudice to the question, whether the heir is, or is not, a neces- sary party to the conveyance, that the executor and executrix, as debts are admitted to have existed at the time of the sale, had power to sell." And see Curtis v. Fulbrook, 8 Hare, 25, 278. The question was next considered at law in the case of Doe d. Jones V. Hughes, G Exch. 223; there a testator, after charging all his real and personal estate with his debts, funeral and testamentary expenses, and a legacy therein mentioned, subject thereto, gave and devised the rents and profits of all his messuages, farms, and lands, except his Bala Houses, to his wife for life, with remainder over to another person in fee. And he also bequeathed to his wife the whole of his personal estates, and appointed her sole executrix. It was held by the Court of Exchequer that the executrix had no implied power to sell or mortgage the Bala Houses (which clescended to the heir) for the payment either of the debts or of the funeral or tes- tamentary expenses or legacy. "Upon the argument of this case," said Parke, B. , "the several authorities upon the subject were brought before us; and it was contended on behalf of the defendant, that the efPect of a charge of the real estates with debts was to give to the executrix an implied power of sale. But upon a due consideration of all the cases, it is perfectly clear that not one of them bears out that proposition. One class of cases shows, that by a devise to trustees of the real estate charged with the testator's debts, the trustees have thereby imposed upon them the duty of raising money to pay those debts; for, as the estate is given to them, they can, through the means of the estate, raise money for the payment of those debts. Another class of cases decides, that if fi'om the whole purview of the will it appears to have been the intention of [*98] the testator that * his real estate should be sold, and the proceeds of that real estate are to be distributed for the purpose for which it is given, which the executors alone by law could perform, then there is an implied power given them by the will to sell the estate; and that the executor who is to distribute the money 16G ELLIOT V. MEURYMAN. * 99 is to sell the estate. Several cases were cited which confirm this proposition, and amongst them is that of Forbes v. Peacock, (12 Sim. 541). But upon looking through the cases, not a single authority is to be found which says, that a simple charge of the estate with the payment of the debts does more than make a charge upon the estate iu the hands of the devisee, if the estate is devised, or upon the estate in the hands of the heir-at-law, ii the estate devolves upon him by the law of inheritance .... The estate is oaly subjected in the hands of the heir-at-law to a charge for funeral and testamentary expenses, and the charges attending the proof of the will, which the executrix ruust enforce through the medium of a Court of Equity; and we therefore think the executrix had no power to sell or mortgage the estate. It is not within the principle of any of the cases in which it has been held there is an implied power of sale or mortgage." See also Kenrick v. Lord Beauclerk, 3 B. & P. 175; Doe v. Claridge, G C. B. ()41. The next case to be noticed (apparently conflicting with Doe d. Jones V. Hughes,) is the case of Robinson v. Loivater (17 Bcav. 532): there a testator devised some messuages in Rutland Place to his daughter Elizabeth (since deceased) for life, with remainder to all her children living at her decease, and two closes in Sandfield to his son Richard for life, with remainder to the use of his children who should be living at his decease, as tenants in common, with a limitation over iu the event of that remainder not taking effect. And he devised his estate at Arnold to his son Richard in fee charged with the payment of the sum of 200Z. due on mortgage of his messuages devised to his daughter Elizabeth, and of the legacies therein mentioned, and with and to the payment of his debts, and funeral and testamentary expenses. But if his premises at Arnold should not be sufficient for that purpose, then he charged his closes at Sandfield with the payment of such deficiency; and he appointed his son Richard sole executor of his will. The testator by a codicil revoked the devise of the Arnold property to his son Richard. The will was proved by the executor, who exhausted the personal estates in payment of debts, except the mortgage debt charged on Rutland Place. The executor also sold the two closes in Sandfield to Na- thaniel Sulley {in ivhom the legal estate in fee simple icas vested as a trustee for the testator * and his heirs. ) The [ * 99 ] purchaser had notice of the will. The defendant Lowater derived his title to Sanfield ft-om Nathaniel Sulley. The plaintiffs, the children of the testator's daughter Elizabeth, filed a bill, in- sisting that the Sandfield property was still liable in the hands of the defendant Lowater to pay off the mortgage on the Rutland Place property, which still remained unpaid. The bill however was dismissed by Sir John Romilhi, M.R., with costs. " The case of Doe d. Jones v. Hughes (G Exch. 223), " said his Honor, " is relied upon to show, that the executor could not make a good title to sell, and had no authority to sell vested in him. I find it difficult to 1G7 * 100 ELLIOT V. MERRYMAN. reconcile the decision in that case with the numerous authorities to be found on this subject in Chancery; amongst which I may refer to Ball V. HaiTis (4 My. & Cr. 264), where Lord Cottenham observes, that a charge of debts is equivalent to a trust to sell bo much as may be sufficient to pay them; Forbes v. Peacock (12 Sim. 541), which, on this point, is not affected by the reversal of the decision (1 Ph. 717), and to the case of Gosling v. Carter (1 Coll. 644). "Before the case in the Exchequer, I had considered the law to be, that a charge of debts on an estate devised, gave the executors an implied power of sale, because, to use the expression of Sir J. Leach, in Bentham v. Wiltshire (4 Madd. 49), the power to sell is 'implied, from the produce having to pass through their hands in the execution of their office, as in the payment of debts or legacies.' I am of opinion, therefore, that a good title was made to the pur- chaser Nathaniel Sulley, and that the defendants claiming under him are entitled to hold it, discharged from all claims in favour of the plaintiffs." This decision upon appeal was affirmed by the Lords Justices (5 De G. Mac. & G. 272). During the argument the Lord Justice Knight-Bruce, with reference to Doe d. Jones v. Hughes (6 Exch. 233), put the following pertinent question: ''Does that case deal with anything beyond the question of the legal es- tatef Can it govern the present, which is an application to a Court of equity to give effect to a qharge?" Again, Lord Justice Turner asked: "Does a charge of debts amount to a direction to institute a Chancery suit ? Would not that consequence follow from holding that the executor could not sell ?" In giving judgment. Lord Jus- tice Turner made the following observations: "The question is, how and by whom the money was to be raised. The purpose for which it was to be raised being to pay debts, it must have been in the contemplation of the testator that it would have to be raised immediately, but no power is given to the devisees to raise [ * 100 ] it; and the will * containing a devise of a life estate with contingent remainders over, it is impossible that, during the subsistence of these contingent remainders, the devisees could themselves raise it. On the face of this will, therefore, it was not the intention of the testator that the money should be raised by the devisees. Then who was to raise it ? Surely the persons who would have to apply the fund. It seems to me, therefore, upon the whole scope of this will, without reference to the cases decided upon the subject, that in this case, at least, it was the intention of the testa- tor that the money should be raised by the executor; and if by the executor, then the executor must be considered as invested with all the powers necessary to raise it. I think there is abundant reason for the conclusion at which the Master of the Eolls has arrived in this case." See also Eidsforfh v. Armstead, 2 K. & J. 333; Ogden V. Loim^y, 25 L. J. (Ch.) N. S. 198. In Wrigley v. Sykes, 21 Beav. 337, a testator ordered all his debts, funeral and testamentary expenses, and legacies " to be paid and 168 ELLIOT V. MERRY.MAN. * 101 discharged out of his real and porBonal estate." He then devised certaiu freehold messuages to trustees for a term of 500 years, upoa the trusts thereinafter mentioned, and subject thereto to his five sons in fee, as tenants in common, upon condition that they should pay, in equal shares, certain specified legacies and annuities, and also all his mortgage and otkei' debts. The trusts of Ibo terin of 500 years were declared to be, that if any of the sons should, thirty days after demand, refuse to pay his proportion of the legacies, an- nuities, moi'tgage and other debts, the trustees should, out of the rents of the share of such son, levy such sums unpaid, and all costs; and he appointed his five sons executors. Thirty-three years after the death of the testator, the surviving executors sold the estate, as they alleged, to pay the debts. Sir John Roinilly, M. E., held that they had power to sell, and decreed a specific performance aa^ainst the purchaser. "I do no think," said his Honor, "that the creation of the term, which has a distinct and specified object, supersedes the general charge for payment of debts; which, in my opinion, gives the executors a power of selling the estate for payment of debts. And in that view of the case, I am of opinion, that this is a valid contract. It is very true that the Court will not compel a person to take a doubtful title; but if the Court is of opinion, upon due consideration of the question of law, that the title is good, the Court is bound so to hold, and it cannot, in my opinion, decline to do so because it is possible that when the case arises between the parties^ some other Court may come to an opposite or con- trary conclusion; * and therefore, I am of opinion, that I [ *101 ] am right, in this case, in compelling the purchaser to take what, in my opinion, is not a doubtful title. / shall certainly se- cure to the purchaser, as far as it is competent for the Court to do so, a good legal estate ivhe II tlie conveyance is made; but as I am of opinion that the executors had power to enter into the contract, which is not disputed, and as, in my opinion, the title is good, I must decree specific performance." See also Sabin v. Heape, 27 Beav. 553; Bolton v. Stannard, 6 W. R. (M. li.) 570; Greetham v. Cotton, 34 Beav.Glo; 11 Jur. N. S. 848. The conclusion which may be drawn from these cases, seems to be this, that where there is a general charge of debts upon real estate, the executors have in equity an implied power to sell it, and they alone can give a valid receipt for the purchase money, but as they do not take by implication a legal power to sell, and cannot therefore convey the legal estate, (Doe d. Jones v. Hughes, 6 Exch. 223,) the persons in whom it is vested (if it be not alreadv in the executors by devise or otherwise; In re Tanqueray-Willuume and Landau, 20 Ch. D. 405, 479) must concur with them in the con- veyance. This conclusion reconciles all the cases in equity with the apparently conflicting authority of Doe d. Jones v. Hughes (6 Exch. 223). See also Hodkinson v. Quinn, 1 J. & H. 303,309; Hooper v. Stridton, 12 W. 11. (V. C. S.) 367. "Where the person in 169 * 102 ELLIOT V. MERRYMAN. whom the legal estate is vested is under any disability cr refuses to concur, recourse has been had to the provisions of the Trustee Acts, 1850 and 1852, Dart. V. & P. 618, 5th ed. ; and see now 47 & 48 Vict. c. 01, s. 14. The opinion among conveyancers, nevertheless, appears to be, that where, subject to a charge of debts, an estate is devised to per- sons either beneficially or as trustees for special purposes, a sale can be eifected by the devisees alone; and Lord St. Leonards, in the last edition of his work on Vendors and Purchasers, with refer- ence to the cases of Robinson v. Loivater, and Wrigley v. Sykes, says, "They have introduced considerable difficulty upon titles, by imjilying a power of sale in executors from a charge of debts, al- though the estate is devised to others. This is contrary to the received opinion. It would not be safe to rely on the authority of these cases." See an article in the "Jurist," vol. ii , N. S. 68. Sugd. V. & P., 13th ed. p. 545, n. (1). See also. Dart's V. & P. 618, 619, 620, 621, 5th ed.; 2 David. Con., 299 n., 985 n., 999 n., 3rd ed. We must remember, however, that Robinson v. Loivater is stamped with the high authority of the Lords Justices of the Court of Ap- peal. See also Hamilton v. Buckmaster, 3 L. K. Eq. 323. [ * 102] *It is however clear that where an executor is also devisee of an estate charged icith jyayment of debts, he will be able to give a valid title to it, as a bond fide purchaser or mortgagee may presume that ho is dealing with it for the purpose of adminis- tration. Such purchaser or mortgagee therefore will not be bound to look to the application of the purchase-money. Corser v. Cart- wright, 8 L. R. Ch. App. 971; 7 L. E. Ho. Lo. 731, 736; Colyer v. Finch, 5 Ho. Lo. Ca. 922; West of England and South Wales Dis- trict Bank v. Murch, 23 Ch. D. 138. AVhere there is an express trust for sale, at a particular period which has arrived, the trustees can sell, without the concurrence of the executors, who might previously have sold under the implied power arising from a general charge of debts. See Hodkinson v. Quinn, 1 J. & H. 303; there a testator, after a charge of debts, de- vised certain real estates, subject to the payment of his said debts, to trustees upon trusts for his daughters and their families, and af ter the death of the surviving daughter, upon trust to sell .with power to give receipts, and to apply the proceeds after satisfying all encumbrances affecting the said real estates, upon certain trusts. The daughters being both dead, it was held on demurrer by Sir. W. Page-Wood, V.-C., that the trustees could make a good title without the executors. "It would," said his Honor, "be a very serious conclusion to hold that this decision of Robinsons. Loicater, has rendered it possible for executors to sell after an actual aliena- tion by devisees. None of the authorities have gone that length. They decide only that the executors have that power . . . Irre- spectively of the reasons afforded by this particular will, I should 170 ELLIOT V. MERRYMAN. * 103 be inclined to hold generally, that any sale by trustees under a power, prior to an actual sale by executors, would be effectual. But in this will, even assuming that the executors have a complete legal power, when you find it prescribed as the duty of the trustees to exercise another power at a given period, for the express purpose (among others) of doing what the executors' power is intended to effect it follows that a sale by the trustees must be completely effec- tual, and no executor could afterwards insist on the right under his im])lied power to disturb that sale." The law upon this subject has been partially altered by 22 & 23 Vict. c. 35 (Lord St. Leonards' Act), passed 13th August, Ibf/J, by which it is enacted, that ''where by any will which shall come into operation after the passing of this Act, the testator shall have charged his real estate, or any specific portion thereof, with the payment of his debts, or with the payment of any legacy or other specific sum of money, and shall *have devised the estate [ * 103 ] so charged to any trustee or trustees for the whole of his estate or interest therein, and shall not have made any express provision for the raising of such debt, legacy, or sum of money out of such estate, it shall be lawful for the said devisee or devisees in trust, notwithstanding any trusts actually declared by the tes- tator, to raise such debts, legacy, or money as aforesaid, by a sale and absolute disposition by public auction or private contract of the said hereditaments or any part thereof, or by a mortgage of the same, or partly in one mode and pailly in the other, and any deed or deeds of mortgage so executed may reserve such rate of in- terest, and fix such period or periods of repayment, as the person or persons executing the same shall think proper" (sect. 14). The powers conferred by the last section shall extend to all and every person or persons in whom the estate devised shall for the time being be vested by survivorship, descent, or devise, or to any person or persons who may be appointed under any power in the will, or by the Court of Chancery, to succeed to the trusteeship vested in such devisee or devisees in trust as aforesaid (sect. 15). If any testator who shall have created such a charge as is described in the fourteenth section, shall not have devised the hereditaments charged as aforesaid in such terms as that his whole estate and in- terest therein shall become vested in any trustee or trustees, the execu- tor or executors for the time being named in such will (if any) shall have the same or the like power of raising the said monies as is hereinbefore vested in the devisee or devisees in trust of the said hereditaments, and such power shall from time to time devolve to and become vested in the person or persons (if any; in whom the execiatorship shall for the time being be vested; but any sale or mortgage under this Act shall operate only on the estate and inter- est, whether legal or equitable, of the testator, and shall notxender it unnecessary to get in any outstanding subsisting legal estate (sect. 10). 171 * 104 ELLIOT V. MERRY31AN. Purchasers or mortaagees shall not be bound to inquire whether the powers conferred by sections fourteen, fifteen, and sixteen of this Act, or either of them, shall have been duly and correctly ex- ercised by the person or persons acting in virtue thereof (sect. 17). The provisions contained in sections fourteen, fifteen, and six- teen, shall not in any way prejudice or affect any sale or mortgage already made or hereafter to be made, under or in pursuance of any will coming into operation before the passing of this Act (13th August, 1859) ; but the validity of any such, sale or mort- [ * 104' ] gage shall be * ascertained and determined in all respects as if this Act had not passed; and the said several sections shall not extend to a devise to any person or persons in fee or in tail, or for the testator's whole estate and interest charged with debts or legacies, nor shall they affect the power of any such de - visee or devisees to sell or mortgage as he or they may by law now do (sect. 18). There is no implied power in administrators, even with the will annexed, as in the case of executors, to sell the real estate for pay- ment of debts, nor is power conferred upon them to do so under sect. 16 of 22 & 23 Vict. c. 35. In re Clmj and Tefeleij, 16 Ch. D. 3; Ricketfs v. Leivis, 20 Ch. D. 745. With reference to Lord St. Leonard's Act, a learned writer ob- serves that the difficulty created by the decisions has been removed in two cases: 1st, by giving a devisee of the fee, who is a trustee for totally foreign purposes, a power to sell or mortgage for the satisfaction of the charge of debts; and, 2ndly, by giving the exe- cutor a power to sell or mortgage when the estate is cut up by suc- cessive limitations without the intervention of a trustee of the legal fee. But in cases where the testator died before the 13th August, 1859, or where there is a devise, subject to a charge of debts, to a beneficial owner in fee or in tail, or for all other the testator's in- terest in the estate, the Act leaves this question in the same doubt and perplexity as before. No testator, then, ought to create a charge of debts upon his real estate, without at the same time expressly creating a trust or power for giving effect to the charge, and with- out distinctly pointing out the persons by whom the trust or power is to be exercised: Hayes and Jarm. Cone. Forms of Wills, by East- wood, p. 467. Where there are trustees upon trust to sell and give receipts for the proceeds of real estate, the concurrence of tenants for life of the proceeds is not rendered necessarv by sections 56 and 63 of the Settled Land Act, 1882 (45 & 46 Vict. c. 38), upon the sale by the trustees, and even if such concurrence were necessary, the order of the Court would be sufficient to enable the trustees to sell without joining the tenants for life, or any of them, in the conveyance to the purchaser. Taylor v. Poncia, 25 Ch. D. 646. See also, In re Earle and Webster's Contract, 24 Ch. D. 144. As to the consents of tenants for life within the meaning of sec- 172 ELLIOT V. MEKUYJLVN. * 106 tions m and 03 of the Act of 1882, see the Settled Land Act, 1884 (47 & 48 Vict. c. 18), sect. 6; and as to powers to be exercised only with leave of the Court, see lb., t^ect. 7. 3. How far Real Estate in the hands of an Alienee of the Devisee * or Heir-at-Laiv is liable for JJebfs.] — Real es- [ * 105 ] tate in the bands of an alienee of a devisee, or heir-at-law, where there has been no charge of debts by a testator, is discharg^ed from the debts, and the heir or devisee only remains personally liable to the extent of the value of the land alienated. Richardson v. Norton, 7 Beav. 112; Spademan \. Tin)brcll,S Sim. 253; Prmm v, Insall, 1 Mac. & G. 449; Kinderley v. Jervis, 22 Beav. 1; Jones v. Noi/es, 4 Jur. N. S. 1033; Dillces v. Broadmead, 2 De G. F. & Jo. 506; Hynes v. Redington, 131. Ch. II. 200. But though there be no charge of debts, a conveyance to new trus- tees is not such an alienation under 3 Will. & M. c. 14, s. 7, as would prevent the interests so aliened from being affected by an execution at the suit of the creditors of the devisor: Coojje v. Cressivell, 2 L. R. Ch. App. 112, 122. A mortgage, however, by an equitable tenant for life under the will is such^an alienation pj-o tanto, that, though the creditors might proceed against the trustees and the heir, the interest of the mort- gagee would be protected from execution. Ibid. And it has been recently held by the Lords Justices, reversing ihe decision of Hall, V.-C, that an equitable mortgage by deposit of title deeds with a memorandum of charge, by a devisee, is an alienation which pro tanto prevents a creditor of the testator from subsequently obtaining a charge on the estate as assets under 3 & 4 Will. 4, c. 104. See British Mxdual Investment Company v. Smart, 10 L. R. Ch. App. 507, overruling Carter v. Sanders, 2 Drew. 248. A purchaser from the heir or devisee is not bound to see to the payment of debts of the ancestor or testator, whetherby specialty or simple contract (Higgins v. Shatc, 2 Dru. and War. 35), but if be has not paid the purchase-money he may, at the suit of the creditors of the testator or ancestor, be restrained from parting with it. Green V. Loives, 3 Bro. C. C. 217. Where, however, there is a charge o/de6^s upon real estate, a pur- chaser from the heir or devisee, or their alienee, cannot safely com- plete without either the concurrence of the executors, or without be- ing satistied that all the debts have been paid. See Storryy. WaU^h, 18 Beav. 559; Hope v. Liddell, 21 Beav. 183. In Austin \. Martin, 29 Beav. 523, real estate was devised to A. B. and bis heirs in trust to sell, with power to the trustee or trustees to give receipts for the purchase-money. A. B. was to pay the debts and hold the surplus on certain trusts, and he was appointed sole executor. A. B. hav- ing i-enounced and disclaimed, it was held by Sir J. Romilly, M. R., that the heir-at-law, who had taken out administration, * could sell the estate and give valid receipts. \ * 106 ] 173 * 107 ELLIOT V. MERRTMAN. 4. Liability of Purchasers of Personal Estate from Executors or Administrators to see to application of the Purchase -money. '\ — How- ever personal estate may be bequeathed, it must be applied, iu the first place, by the executors for payment of the debts of the testator, in a due covirse of administration. Upon the same principles, there- fore, by which a purchaser of real estate, devised for the general pay- ment of debts, is exempted from seeing to the application of the pur- chase-money, it is a general rule that a person who purchases or takes a mortgage of leaseholds or other personalty from an executor or administrator is not bound to pee to the application of the pur- chase money. " After the sale is made, the creditors cannot," as ob- served by the Master of the Rolls in the principal case, " break in upon it. See Bonney v. Ridgard, 1 Cox. 145; Scott v. Tijler, 2 Dick. 725; Mead v. Orrery, 3 Atk. 240; Andrew v. IVrigley, 4 Bro. C. C. 125; lifLeod v. Drummond, 17 Ves. 154; Keane v Roberts, 4 Madd. 357; Ward v. Ward, 4 Ir. Ch. Eep. 215; Humble v. Bill, 2 Vern. 444. The last-mentioned case, however, was reversed in the House of Lords, under the name of Savage v. Humble, 3 Bro. P. C. 5, Toml. ed., in the opinion of subsequent judges erroneously: Eicer v. Cor- bet, 2 P. Wms. 148; Andrew v. Wrigley, 4 Bro. C. C. 136. The sale or mortgage of a chattel by an executor will be good against both the residuary pecuniary and specific legatees, as well as the creditors of the testator, whose remedy, in case of the misap- pli nation of the money by the executor, will not be against the pur- chaser or mortgagee, but against the executor; nor will notice of the will or of the bequest contained in it be prejudicial to the purchaser or mortgagee. See Burting v. Stonard, 2 P. Wms. 150; M'Leod v. Drummond, 17 Ves. 163, 169; Andrew v. Wrigley, 4 Bro. C. C. 125; Keane v. Robarts, 4 Madd. 332, 357; Gray v. Johnston, 3 Law R. Ho. Lo. 1 ; Berry v. Gibbons, 8 L. R. Ch. App. 747. In Ewer v. Corbet, 2 P. Wms. 148, one possessed of a term for years devised it to A., and died indebted, having madeB. his execu- tor. The executor sold the term, upon which the legatee of the term brought a bill against the purchaser, insisting that, the term being bequeathed to the plaintiff, the executor was but a trustee, and that the purchaser must have notice of this trust, the term having been bought of the executor, and consequently must be taken subject to the trust. However, Sir J. Jekyll, M. R., observed, '"I take [ * 107 ] it to have been resolved, and with great reason, * that an ex- ecutor, where there are debts, may sell a term, and the devisee of the term has no other remedy but against the executor to recover the value thereof, if there be suflScient assets for the payment of debts. As for the notice of the will and of the devise of the term to a third person, that is nothing; for every person buying of an executor, where he is named executor, must, of necessity, have no- tice; so that if notice were to be an hindrance, then, of consequence, no executor might sell. It is not reasonable to put every purchaser of a lease from an executor to take an account of the testator's debts, 174 ELLIOT V MERRYMAN. *108 nor has be any means to discover tbem. On the contrary, as tbo whole personal estate of the testator is liable to the debts, this lease must f inter alia) of necessity be liable, and therefore may be sold by the executor. If equity were otherwise, it would be a great hind- rance to the payment of debts and legacies, and w-ould lay an em- bargo upon all personal estates in the hands of executors and admin- istrators, which would be attended with great inconvenience." See also Humble v. Bill, 2 Vern. 445; Watts v. Kancie, Toth. 77. The fact that a mortgage of part of the assets has been made to secure a debt originally contracted on the personal security of an executor, and without reference to the assets, i." immaterial. See Miles V. Durvford, 2 De G. Mac. & G. 641, in which the Lord Jus- tices differed as to this point from Sir R. T. Kindersley, V.-C. (See 2 Sim. N. S. 234.) '"The only evidence," said Lord Justice Knight- Bruce, "is that the advances were originally made without security, and that security was afterwards added. That is a circumstance deserving attention, but it does not go far. It is not inconsistent with probability that the advances were made for a purpose for iL'hich the executor viight j^roperly borrow as executor. I think the presumption is in favour of the propriety of the transaction, and that the plaintiff wholly fails." See also Haynes v. Forshaw, 11 Hare, 93. An executor or administrator may not only pledge or mortgage the assets, but may also give to the mortgagee of leaseholds a power to sell and give receipts for the purchase-money. See Russell V. Plaice, 18 Beav. 21; and see Cruikshank v. Duffin, 13 L. R. Eq. 555, where a mortgage with a power of sale by an executor to a Building Society was held good. So it has been held that an executor has power to mortgage lease- hold property of the intestate to secure a sum due for municipal rates partly accrued due during the life of the intestate, and partly afterwards: Douglas v. Douglas, 9 L. R. I. 54. It has been held by Lord Romilly, M. R., that, where there * is an express power to mortgage, the donee, as in- [ * 108 ] cident to such power, has atithority to give a power of sale to the mortgagee. Bridges v. Longman, 24 Beav. 27 ; CooA; v. Da^csov, 29 Beav. 123, 128, 3 De G. F. & J. 121; Leigh v. Lloyd, 2 De G. J. & S. 830. In re Chaioner^s v:ill, 8 L. R. £q. 509; on this point over- ruling Clarke v. The Royal Panopticon, 4 Drew. 26, and Sanders v. Richards, 2 Col. 568. And, by Lord Cranworth's Act (23 & 24 Vict. c. 145), 8. 11, powers of sale were rendered incident to mort- gages. This enactment was repealed by the 71st section of the Conveyancing and Law of Property Act, 1881 (44 & 45 Yict. c. 41), which makes (together with other powers) a power of sale incident to mortgages by deed under the Act (sect. 19). But where an absolute purchase is held, in consequence of the relation between the parties, to be available as a security only, the 175 * 109 ELLIOT V. MERRYMAN. Court will not import into the tz'ansaction a power of sale. Pearson V. Benson, 28 Beav. 598 ; and see Drake v. Williamson, 25 Beav. 622. Where money was ordered by the Conrt to be raised by mort- gage of an infant's estate for payment of debts and costs, the Court will, it seems, if the mortgagee requires it, authorise the insertion of a power of sale in the mortgage deed: Selby v. Cooling, 23 Beav. 418. So likewise an executor may give to a person to whom he has assigned the book debts of the testator by way of mortgage, a power of attorney to collect the debts in his name. Earl of Vane v. Rig- den, 5 L. R. Ch. App. 663. If there be a specific legatee of a chattel, it is desirable to have his concurrence to a sale of it, as the executor may have done some act amounting to an assent (Tomlinson v. Smith, Rep. temp. Finch, 378), but the difficulty does not arise when the legatee is also executor. Cole V. Miles, 10 Hare, 179; Taylor v. Haivkins, 8 Ves. 209; Attor- ney-General y. Potter, 5 Beav. 164 If the executor or other person who by reason of a charge of debts and legacies could make a good title, convey to the devisee or other person entitled to the property subject to the charge by deed, reciting the payment of the charge, out of the personal estate, a purchaser from such devisee or other person will not be bound to see to the application of the purchase-money. Stoiiry v. Walsh, 18 Beav. 559. See also Forshaio v. Higginson, 26 L. J. N. S. Ch. 174, 8 De G. Mac. & G. 827. Although an executor has power to give a person advancing money to him a lien on specific assets, he cannot enable a person from whom he obtains a loan to stand as a creditor upon or to prove against the estate in competition with the creditors of the [ * 109 ] testator. * See Farhall v. Farhall, 7 L. E. Ch. App. 123, reversing S. C, 12 L. R. Eq. 98. The Master of the Rolls, in the principal case, mentions two ex- ceptions from the rule. As to the first, he observes, " that personal estate may be clothed with such a particular trust, that it is possi- ble the Court, in some cases, may require a purchaser of it to see the money rightly applied." This observation has been approved of by Lord Kenyon, M. R., in Bonney v. Ridgard, 4 Bro. C. C. 130; 1 Cox, 145. See M^Leod v. Drummond, 17 Ves. 161, 162; In re Johnston'' s Estate, 15 Ir. Ch. Rep. 260. The second exception from the rule, mentioned by the Master of the Rolls, is, where xhere is a fraud in the case on the part of a purchaser or mortgagee, which fraud will be inferred in many in- stances. Thus, where an executor disposes of or pledges his testa- tor's assets in payment of or as a security /or a debt of his otvn, the person to whom they are disposed of or pledged will take them subject to the claims of the creditors, specific and general legatees, of the testator: thus, in Hill v. Simpson, 7 Ves. 152, Simpson, an executor, immediately after the death of his testatrix, Mrs. Smith, 176 ELLIOT V. MERRYMAN. * 110 transferred certain funds standing in the name of John Rmith, her deceased husband, to whom she was executrix, and other funds • standing in her name and in the name of her co-executor, to Moifatt & Co., his bankers, as a security for such sums as he then owed, or might afterwards owe them. Moffatt «fe Co. denied that they knew, or suspected, that the funds were not at th(i time of the transfer the absolute property of Simpson, as executor or devisee of Mrs. Smith; or that they were part of the personal estate of John Smith; on the contrary, they beheved they were Simpson's own property; and ho represented to them that he was absolutely entitled thereto subject only to an annuity of 20/. to Elizabeth Smith'ssister during her life, and to a few very ^mall legacies: that he had full right to dispose thereof, and would have disposed thereof l)ut for the low ])rico of the funds, which he expected would rise. They also stated that they did not know any of the legacies of John Smith to the plaintiffs, or any other persons, were unpaid. However, Sir 1^^. Grant, M. R., held that the general legatees could follow the funds transferred to the bankers. " In this instance," observed his Honor, "the assign- ment was made in less than a month after the death of Mrs. Smith. There is not, therefore, the least ground for the presumption of right acquired to the assets of Mr. or Mrs. Smith by payments made in that short interval on account of either estate. It is not pretended * it was to satisfy any claim on either es- [ * 110 ] tate; for the express purpose appears to have been to se- cure a debt of his own, which he already owed to the bankers, and other advances they were to make by taking up bills of his then ac- tually outstanding. They had distinct notice, therefore, that the money was not to be applied to any demand upon either estate; but the assets were to be wholly applied to the private purpose of the executor. Allowing every case to remain undisturbed, does it follow from any that an executor in the first month after the testa- tor's death can apply the assets in payment of his own debt; and that a creditor is perfectly safe in so receiving and applying them, provided he abstains from looking at the will, which would show the existence of unsatisfied demands? I am for the moment keep- ing out of sight the representation made by Simpson, and suppos- ing the question to be, whether an executor may thus deal and be dealt with; and it is clear, no rule of justice permits, or of conveni- ence requires, that he should have this unbounded power. Though it may be dangerous at all to restrain the power of purchasing from him, what inconvenience can there be in holding, that the as- sets, known to be such, should not be applied in any case to the ex- ecutor's debt, unless the creditor could be first satisfied of his right? It may be essential that the executor should have the power to sell the assets; but it is not essential that he should have the power to pay his own creditor, and it is not just that one man's property should be applied to the payment of another man's debt. ... It was gross negligence not to look at the will, under which alone a 12 WHITE ON EQUITY. 177 * Hi ELLIOT V. MERRYMAN. title could be given to them. It was not necessary to use any exer- tion to obtain information, but merely not to shut their eyes against the information which, without extraordinary neglect, they could not avoid receiving. No transaction with executors can be render- ed unsafe, by holding that assets transferred under such circum stances may be followed." See also Haynes v. Forshaiv, 11 Hare, 93; Wilson v. Moore, 1 My. & Iv. 337; Wilson \. Leslie, 5 W. R. (V.- C. K) 815; Rolfe v. Gregory, 11 W. R. (V.-C. K.) 1016; Farhall v. Farhall, 7 L. R. Eq. 286; Jones v. Stohivasser, 16 Ch. D. 577. A different doctrine appears to have formerly prevailed in Mead v. Orrery, 3 Atk. 235, and Nugent v. Gifford, 1 Atk. 463. The au- thority of these cases, however, is weakened, if they are not com- pletely overruled, by Hill v. Simpson ; ahd see Bonney v. Ridgard, 1 Cox, 145, where Sir Lloyd Kenyon, M. R., in commenting on Mead V. Loi^d Orrery, says, that if it had come before him, he [ * 111 ] should have decided it in direct * opposition to that au- thority. It may be remarked, however, that in Nugent v. Gifford the executor was the sole residuary legatee; and in Mead v. Lord Orrery, he was one of of the residuary legatees, and his co-ex- ecutors joined with him in the assignment. If, therefore, these cases are rightly decided, they seem to establish that where an ex- ecutor is also residuary legatee, fraud or collusion will not neces- sarily be inferred as against the person to whom he sells or mort- gages a chattel of the testator's in payment of or as a security for his own debt. See M^Leod v. Drimimond, 17 Yes. 163, 164; Bed- ford V. Woodham, 4 Yes. 40, note; William^ v. Massy, 15 Ir. Ch. Rep. 47. It is clear, that, in the absence of fraud or collusion, the assign- ment by an executor, as a security for his own debt, of a chattel spe- cifically bequeathed to him, will be good: Taylor v. Hawkins, 8 Yes. 209. A purchaser, however, with notice of the testator's debts being un- paid, will not be allowed to retain a chattel obtained from an executor as a security for his own debt, although the executor is also specific or residuary legatee. See Crane v. Drake, 2 Yern. 616; there the purchaser, with notice of the plaintiff's debt, bought a lease from the executor and devisee, upon an arrangement that part of the pur- chase-money was to go in payment of a debt due to him from the executor: it was held that the sale was not binding upon the plain- tiff, the Lord Chancellor saying, " The defendant was a party, and consenting to and contriving a devastavit." See also Andreio v. Wrigley, 4 Bro. C. C. 139. See Nugent v. Gifford, 1 Atk. 464; M'Leod V. Drummond, 17 Yes. 163. So, where the executor has sold assets for an undervalue, or has sold or mortgaged them to one who has notice that the testator had left no debts, or that all debts had been paid, a sale or mortgage of the personal estate by the executor will not be valid. Eicer v. Corbet, 2 P. Wms. 148; Scott v. Tyler, 2 Dick. 725; Drohan v. Drohan, 1 178 ELLIOT V. MERRYMAN. * 112 Ball, and B. ISo; Rice v. Gordon, 11 Beav. 265; and see Stroughill V. Anstey, 1 De G. Mac. & G. G35; M'Mullen v. (flieAlly, 15 Ir. Cb. Rep. 251; Hall v. Andrews, 27 L. T. R. (N. S.) 105; 2U W. R. (V.- C. W.) 799. The exceptions from the general rule, that a purchaser from an executor is not Vx^uud to see to the application of the purchase -money, have been well summed up by Lord Thurloic in Scott v. Tyler, 2 Dick. 725. "If," observes his Lordship, "one concerts with an executor, by, obtaining the testator's effects at a nominal price or at a fraudu- lent undervalue, or by applying the real value to the purchase of other subjects for his own behoof, or in extinguishing the * private debt of the executor or in any other manner, [* 112 ] contrary to the duty of the office of executor, such concert will involve the seeming purchaser, or his pawnee, and make him liable for the full value." Length of time and acquiescence, as in the principal case, will prevent creditors and legatees from asserting their claims against purchasers, although the sale by the executor was attended with suspicious circumstances of fraud, and h, fortiori against mesne pur- chasers: Bonney v. Ridgard, 4 Bro. C. C. 138, cited in l^VLeod v. Drummond, 17 Ves. 105; S. C, 1 Cox, 145. And the fact of the legacies being contingent will be no sufficient excuse for the legatees lying by when they have such an interest as will entitle them to know what debts the testator owed, and what part of his estate had been applied in payment of them: Andrew v. Wrigley, 4 Bro. C. C. 135; Rolfe v. Gregory, 11 W. R. (V.-C. K.) lOK); 4 De G. Jo. & Sm. 576. In Mead v. Lord Orrery, 3 Atk. 235, Lord Hardiaicke, seems to think that residuary legatees are never permitted in any case to question the disposition which the executors have made of the assets — that creditors or specific legatees could only do so. However in Hill V. Simpson, 7 Ves. 152, Sir William Grant decided that a mere pecuniary legatee, could follow the assets into the hands of a third person. In WLeodx. Drummond, 17 Ves. 169, Lord ii'ZdoH concurred in the principle laid down by Sir William Grant. "I cannot con- ceive," said his Lordship, "why a creditor and a specific legatee should be able to follow the assets, and not a pecuniary or residuary legatee." A person indebted to a testator's estate, who pays a third party by order of the testator's executor, and obtains the executor's receipt, without notice that the payment is wrongfully made, will ol)tain thereby a complete discharge: Ferrier v. Ferrier, 11 L. R. I. 56. Upon the same principle a banker will not be liable for paying the cheque of his customer, being an executor, who misapplies the money, unless a misapplication thereof was intended by the executor amounting to a breach of trust of which the banker was cognisant, and bv which he derived personally a profit. See Gray v. Johnston, 3 L. R. Ho. Lo. 1. 179 * 113 ELLIOT V. MERRYMAN. Suppose, for instance, that the banker becomes incidentally aware that the. customer, being in a fiduciary or a representative capacity, meditates a breach of trust, and draws a cheque for that purpose, the banker, not being interested in the transaction, has no right to refuse the payment of the cheque; for if he did so he would be making himself a party to an inquiry as between his customer and third persons. lb. p. 14 [ * 113 ] * If , however, an executor or a trustee who is indebted to a banker, or to another person having the legal custody of the assets of a trust estate, applied a portion of them in the pay- ment of his own debt to the individual having that custody, as the individual receiving the debt has at once not only abundant proof of this breach of trust, but participates in it for his own personal benefit, he will be compelled to make restitution. lb. 14; and see Pannell v. Hurley, 2 Coll. 241; Bodenham v. Hoskyns, 2 De G. Mac. & G. 903. [Doctrine of liability of purchaser to see to the application of the pur chase -vioney. Restated. Under the general doctrine of notice, arises the rule that a pur- chaser from a trustee for sale must see to the application of the purchase-money. In all cases where land is sold under a decree of the Court the purchaser is exonerated from all liability or responsibility: Coombs V. Jordon, 3 Bland. 284; Wilson r. Davison, 2 Rob. (Va.) 385. If a purchaser colludes with a trustee or an executor he will be held liable for a misapplication of the trust money. The tendency of the American Courts is not to adopt the doctrine of the neces- sity of the purchaser seeing to the application of the purchase- money and legislation has in some of the States rather strengthened this view, as the doctrine is harsh and causes much inconvenience.] 180 BERING V. EARL OF WINCHELSEA. * 115 * BERING V. EARL OF WINCHELSEA. [ * 114] In the Exchequer. Feb. Qth, 1787. [beported 1 cox, 318.] [>S. a, IB. cfcP. 270.] Contribution between Co-sureties.] — Tlie doctrine of contribution amongst sureties is not founded in contract, but is the residt of general equity, on the gromid of equality of burthen and bene- fit. Therefore, where three sureties are bound by different instru- ments, but for the same principal and the same engagement, they shall contribute. Thomas Dering, Esq., having been appointed collector of some of the duties belonging to the customs, it became necessary, upon such appointment, for him to enter into bonds to the Grown with three securities for the due performance of this office. Sir Edward Dering his brother, the Earl of Winchelsea, and Sir John Rous having agreed to become sureties for him, a joint and several bond was executed by Thomas Dering and Sir Edward Dering to the Crown in penalty of 4000/.; another joint and several bond by Thomas Dering and the Earl of Winchelsea, and a third by Thomas Dering and Sir John Rous, in the same penalty of 4000Z. ; all con- ditioned alike for the due performance of Thomas Dering's duty as collector. Mr. Dering being in arrear to the Crown to the amount of 3883Z. 14s., the Crown put the first bond in suit against Sir Edward Dering, and judgment was obtained thereon for that sum; whereupon Sir Edward filed this bill against the Earl of Win- chelsea and Sir John Rous, claiming from them a contribution to- wards the sum so recovered against him. The cause had been argued at length in Blichaehnas Term last, and now stood for judgment. Lord Chief Baron Eyre. — This bill is brought by * one [ * 115 J surety against his two co-sureties, under the circumstances (above mentioned). Mr. Dering's appointment, the three bonds, 181 * 116 BERING V. EARL OF WINCHELSEA. and the judgment against the plaintiff, are in proof in the cause; the original balance due, and the present state of it, are admitted. The demand is resisted on two grounds: first, that there is no foundation for the demand in the nature of the contract; and, secondly, that the conduct of Sir Edward Dering has been such as to disable him from claiming the benefit of the contract, though it did otherwise exist. There is also a formal objection, which I shall take notice of hereafter. I shall consider the second ground of objection first, in order to lay it out of the case. The misconduct imputed to Sir Edward is, that he encouraged his brother in gaming and other irregulari- ties; that he knew his brother had no fortune of his own, and must necessarily be making use of the public money; and that Sir Ed- ward was privy to his brother's breaking the orders of the Lords of the Treasury, to keep the money in a particular box and in a par- ticular manner, &c. This may all be true, and such a representa- tion of Sir Edward's conduct certainly places him in a bad point of view; and perhaps it is not a very decorous proceeding in Sir Ed- ward to come into this court under these circumstances. He might possibly have involved his brother in some measure, but yet it is not made out to the satisfaction of the Court that these facts will constitute a defence. It is argued that the author of the loss shall not have the benefit of a contribution; but no cases have been cited to this point, nor any principle which applies to this case. It is not laying down any principle to say, that his ill conduct disables him from having any relief in this court. If this can be founded on any principle, it must be that a man must come into a court of equity with clean hands: but when this is said it does not mean a general depravity; it must have an immediate and necessary re- lation to the equity sued for; it must be a depravity in [ * 116 ] a legal as well as in a moral sense. In a * moral sense, the companion, and perhaps, the conductor of Mr. Dering, may be said to be the author of the loss, but, to legal purposes, Mr. Dering himself is the author of it; and if the evil example of Sir Edward led him on, this is not what the Court can take cog- nizance of. Cases, indeed, might be put, in which the proposition would be true. If a contribution were demanded from a ship and cargo for goods thi'own overboard to save the ship, if the plaintiff had actually bored a hole in the ship, he would in that case be cer- tainly the author of the loss, and would not be entitled to any con- 182 BERING V. EARL OF WINCIIELSEA. * 117 tribution. But speaking of the author of the loss is a mere figure of speech, as afiplied to Sir Edward Dering in this case. The real point is, whether a contribution can be demanded be- tween the obligors of distinct and separate obligations under the circumstances of this case. It is admitted that, if there had been only one bond in which the three sureties had joined for 12,000/., there must have been a contribution amongst them to the extent of any loss sustained: but it is said, that that case proceeds on the contract and privity subsisting amongst the sureties, which this case excludes; that this case admits of the supposition that the three sureties are perfect strangers to each other, and each of them might be ignorant of the other sureties, and that it would be strange to imply any contract as amongst the sureties in this situation; that these are perfectly distinct undertakings without connexion with each other, and it is added, that the contribution can never be eodem mode as in the three joining in one bond for 12,000/.; for there, if one of them become insolvent, the two others would be liable to contribute in moieties to the amount of 6000/. Qach, whereas here it is impossible to make them contribute beyond the penalty of the bond. Mr. Madocks has stated what is decisive, if true, that nobody is liable to contribute who does not appear on the face of the bond. If this means only that there is no contract, then it comes back to the question whether the right of contribution is founded on the contract. * If we take a view of the cases, both in law and equity, [ * 117 ] we shall find that contribution is bottomed and fixed on general 2yrinciples of justice, and does not spring from contract; though contract may qualify it, as in Swain v. Wall, 1 Ch. Rep. 149. In the register, 176 b. there are two writs of contribution — one inter co-haeredes, the other inter co feoffatos; these are founded on the Statute of Marlbridge. The great object of the statute is, to protect the inheritance from more suits than are necessary. Though contribution is a part of the provision of the statute, yet in Fitzh. N. B. 338, there is a writ of contribution at common law amongst tenants in common, as for a mill falling to decay (6). In the same page, Fitzherbert takes notice of contribution between co-heirs and co-feoffees; and as between co-feofifees, he supposes there shall be no contribution without an agreement, and the words of the writ (b) Sed vide Leigh v. Dickeson, 12 Q. B. D. 194, 198. 183 * 118 DERING V. EARL OF WINCHELSEA. countenance such an idea, for the words are "ex eorum assensu;" and yet this seems to contravene the express provision of the statute. As to co-heirs, the statute is express; it does not say so , as to feoffees, but gives contribution in the same manner. In Sir William Harberfs case, 3 Co. lib, many cases of contribution are put; and the reason given in the books is, that in sequali jure the law requires equality: one shall not bear the burthen in ease of the rest; and the law is grounded in great equity. Contract is never mentioned. Now, the doctrine of equality operates more effectu- ally in this court than in a court of law. The difficulty in Coke's Cases was, how to make them contribute; they were put to their audita querela, or scire facias. In equity there is a string of cases, in 1 Eq. Ca. Ab. tit. "Contribution and Average." Another case occurs in Hargr. Law Tracts (c), on the right of the King on the prisage of wine^ The King is entitled to one ton before the mast, and one ton behind; and in that case a right of contribution ac- crues, for the King may take by his prerogative any two tons of wine he thinks tit, by which one man might suffer solely. But the contribution is given of course on general principles, which govern all these cases. [ * 118 ] * Now, to come to the particular case of sureties. It is clear that one surety may compel a contribution from an- other towards payment of a debt for which they are jointly bound. On what principle ? Can it be necessary to resort to the circum- stance of a joint bond ? "What if they are jointly and severally bound ? What difference will it make if they are severally bound, and by different instruments, but for the same principal, and the name engagement? In all these cases the sureties have a common interest and a common burthen; they are joined by the common end and purpose of their several obligations as much as if they were joined in one instrument, with this difference only, that the penalties \yill ascertain the proportion in which they are to con- tribute; whereas if they had joined in one bond, it must have de- pended on other circumstances. In this case, the three sureties are all bound that Mr. Dering shall account for the moneys he receives. This is a common burthen. All the bonds are forfeited at law and in this court, as far as the balance due. The balance might have been so great as (c) P. 120. 184 DERING V. EARL OF WINCHELSEA. * 119 to Lave exhausted all the penalties, and then the obligee forces them all to pay; but here the balance is something less than one of the penalties. Now, who ought to pay this? The one wha is sued must pay it to the Crown, as in the case of prisage; but, as between themselves, there shall be a contribution, for they are in sequali jure. This principle is carried a great way where they are joined in one obligation; for if one should pay the whole 12,000Z., and the second were insolvent, the third shall contribute a moiety, though he certainly never meant to be liable for more than a third. This circumstance, and the possibility of one being liable for the whole if the other two should prove insolvent, suggested the mode of en- tering into separate bonds; but this does not vary the reason for contribution, for there is the same principal and the same engage- ment; all are equally liable to the obligee to the extent of the pen- alty of the bonds when they are not all exhausted. If, in the common case of a joint bond, no distinction is to be *made, why shall not the same rule govern here? As in [ * 119 ] the case of average of cargo in a court of law, qui sentit commodum sentire debet et onus. This principle has a direct appli- cation here; for the charging one surety discharges the other,^nd each therefore ought to contribute to the onus. In questions of average, there is no contract or privity in ordinary cases; but it is the result of general justice, from the equality of burthen and benefit. Then there is no ditficulty or absurdity in making a contribution take place in this case, if not founded on contract, nor any difficulty in adjusting the proportions in which they are to contribute, for the penalties will necessarily determine this. The objection in point of form, which I before mentioned, is, that the bill cannot be sustained, inasmuch as it has not charged the in- solvency of the principal debtor, and that such a charge is abso- lutely necessary. As a question of form it ought to have been brought on by demurrer; but, in substance, the insolvency of IVIr. Dering may be collected from the whole proceedings, which strongly imply it; for the plaintiflP appears to have submitted to the judg- ment, and the defendants have made their defence on other grounds. On the whole, therefore, we think the plaintifp is entitled to the relief he prays, and declare that the balance due from Thomas Dering being admitted on all hands to amount to the sum of 3883/. ]4s. 8hd., the plaintiff. Sir Edward Dering, and the two de- fendants, the Earl of ^Vinchelsea and Sir John Rous, ought to con- 185 * 120 DERING V. EARL OF WINCHELSEA. tribute in equal shares to the payment of that sum, and direct that the plaintiff and defendants do pay in discharge thereof, each of them, the sum of 1294L lis. Id.; and that on payment thereof, the Attorney -General shall acknowledge satisfaction on the record of the said judgment, and that the two bonds entered into by the Earl of Winchelsea and Sir John Rous be delivered up to them respec- tively. But this not being a very favourable case to the plaintiff, and the equity he asks being doubtful, we do not think it a case for costs. [ * 120 ] ^Contribution Between Sureties. — " The principle," ob- served Lord Redesdale, "established in the case of Bering \. Lord Winchelsea, is universal, that the right and duty of contribu- tion is founded in doctrines of equity ; it does not depend upon contract. ['" The equity for contribution arises when one of sev- eral parties who are liable to a common debt or obligation dis- charges the same for the benefit of all:" Bispham's Eq. (4th Ed.) 328. AVhere there are two or more sureties and one of them pays, the debt due to all of the sureties, he who pays the debt has the right to recover from each of his co-sureties his proportionate part of the amount paid, he has the right to enforce contribution. The right is asserted through the medium of a bill in equity and is founded not on contract but on the principles of justice above stated: Allen V. Wood, 3 Iredell, 386; Winckle v. Johnson, 11 Oregon, 469; Strong V. Mitchell, 19 Vt. 644; Campbell r. Mesier, 4 Johns. Ch. 334; McKenna v. George, 2 Rich. Eq. 15; Breckenridge v. Taylor, 5 Dana, 110.] If several persons are indebted, and one makes the payment, the creditor is bound in conscience, if not by contract, to give to the party paying the debt all his remedies against the other debtors. The cases of average in equity rest upon the same prin- ciple. It would be against equity for the creditor to exact or re- ceive payment from one, and to permit, or by his conduct to cause, the other debtors to be exempt from payment. He is bound, sel- dom by contract, but always in conscience, as far as he is able, to put the party paying the debt, upon the same footing with those who are equally bound. That was the principle of the decision in Dering v. Lord Winchelsea ; and in that case there was no evidence of contract :" Stirling v. Forrester, 3 Bligh, 59. See also Craythorne v. Sicinburne, 14 Ves. 160, 165, 169; Hartly v. O' Flaherty, 1 Beat. 77, 78; Ware v. Honvood, 14 Ves. 31; Mayhew v. Crickett, and note, 2 Swanst. 189, 192; Spottiswood's Case, 6 De G. Mac. & G. 345, 371, 375; Whiting v. Burke, 10 L. R. Eq. 539; 6 L R. Ch. App. 342; In re MacDonaghs, Minors, 10 I. R. Eq. 269; In re 186 DERING IJ. EARL OF WINCHELSEA. *121 Arcedeckne, Atkins v. Arcedeckne, 24 Ch. D. 714; Ward v. National Bank of New Zealand, 8 App. Ca. <05; liamskill v. Edwards, 31 Ch. D. 100, 109, where the doctrine laid down in Bering v. Lord Winchelsea has been recognized and approved of. [The doctrine of contribution is not so much founded on contract, as on the prin- ciple of equity and justice, that where the interest is common the burden also shall be common: Russell v. Failer, 1 Ohio (N. S.), 327; White v. Banks, 21 Ala. 705; Campbell t'. Meiser, 4 Johns. C. K 834, and Brett's Lead. Cas. in Mod. Eq. 390 (Text Book Series).] The right of the surety to such contribution from his co-sureties, arises upon payment,either voluntarily, or under proceedings against him by the creditor, of the amount due to the creditor by the prin- cipal debtor and for which the surety rendered himself liable by his guarantee. [At law the co-surety was compelled only to contri- bute his pro rata proportion, having regard to the whole number of sureties, -without reference to the fact that some of the sureties might be insolvent. But in equity the burden of the debt is di- vided among the solvent sureties, and the party paying, can recover from each of the others his proportionate part of the contribution; thus, where the plaintiff was one of four sureties on a note, being compelled to pay, he brought suit against, his colleagues and re- covered a judgment against each, for one-fom-th of the entire amount of the cost, interest and principle, but not for an attorney's fee which was provided for on the face of the note, as he was not com- pelled to pay it: American Note 4 to Steel v. Dixon, Brett's Lead. Cas. Mod. Eq. 388 (Text Book Series), and see Henderson v. Mc- dufiee, 5 H. E.; Morrison r. Poyntz, 7 Dana, 307; Stothoff v. Dun- ham, 19 N. J. L. 182. A judgment, however (Douglass v. How- laad, 24 Wendall, 35), or an award (Ex jJarte Young, 17 Ch. D. 668), against the debtor is not, in the absence of a special agree- ment, binding on the surety, and is not evidence against him in an action by the creditor (Douglass v. Howland, 24 Wendall, 35;) and upon the bankruptcy of the surety the creditor cannot prove for the amount of the award, but must show by the usual evidence, to the Bankruptcy Court, the amount at which his proof ought to stand: Ex parte Young, 17 Ch. D. 674. And it is immaterial that the transaction giving rise to the lia- bility is one which, with reference to the parties Who entered into it, was ultra vires. Thus where shares of a company were (pur- suant to a resolution of the Board ultravires) pui'chased and trans- ferred into the name of A., a director, in trust for the com- * pany, and A. afterwards paid calls in respect thereof, it [ * 121 ] was held by Bacon, V.-C, that he was entitled to con- tribution from the directors who concurred in the transaction. Ashnrst v. Mason, 20 L. R. Eq. 225. Courts of common law, in modern times, assumed a jurisdiction to compel contribution between sureties, in the absence of positive 187 * 122 BERING V. EARL OF WINCHELSEA. contract, on tlie ground of implied assumpsit; inasmuch as the principle of contribution being in its operation established, a con- tract might be inferred, upon the implied knowledge of that prin- ciple by all persons. This jurisdiction was convenient enough, in a case simple and uncomplicated, but attended with great ditficulty where the sureties were numerous; especially since it was held, that separate actions might be brought against the different sureties for their respective quotas and proportions. It was easy to foresee the multiplicity of suits to which that led: Craythorne v. Swinburne, 14 Yes. 164; Coivell v. Edwards, 2 B. & P. 268; see also 1 Saund. R, 264, n. (a), William's note (b). In other respects, as will be hereafter seen, the jurisdiction at common law was much more confined and less beneficial than in. equity. Thus, where there were several sureties, and one became insolvent, the surety who paid the entire debt could in equity com- pel the solvent sureties to contribute towards payment of the entire debt. (Peter \. Rich, 1 Ch. Rep. 34; Hole v. Ilarrison, V Ch. Ca. 246; S. C. Finch, Rep. 15,203; Hitchman v. Stewart, 3 Drew. 271; 2 Set on Decrees, 1182, 4th Ed., and see The Mayor of Bencick v. Murray, 25 L. J. N. S. (Ch.) 201; 7 De G. Mac. & G. 497); but at law he could recover no more than an aliquot part of the whole, re- gard being had to the number of co-securities: Coivell v. Edivards, 2 B. & P. 268; Broivne v. Lee, 6 B. & C. 697; S. C, 9 D. & R. 700. See also Rogers v. Mackenzie, 4 Ves. 752; Wright v. Hunter, 5 Ves. 927; Batard v. Hawes, 2 E. & B. 287. [In Equity' the burden of the debt is divided among the solvent sureties and the party paying I'ecovers from each of the other sureties an amount dependent upon the number of those who are actually able to pay. McKenna v. George, 2 Rich. Eq. 15; Breckenridge v. Taylor, 5 Dana, 110.] So, also, if one of the sureties died, in equity contribution could be en- forced as against his representatives; but at law an action lay only against the surviving sureties: Primrose v. Bromley, 1 Atk. 90; Batard v. Haices, 2 E. & B. 287. It may here be observed that in all cases of contribution, the jurisdiction assumed by courts of law did not affect the original jurisdiction of courts of equity {Wright v. Hunter, 5 Ves. 794); and now under the Judicature Act, 1873 (36 & 37 Vict. c. 66), sect. 25, subsect. 11, where there is any conflict and variance between the rules of law and equity with reference to the same matter, the rules of equity will prevail. It is clear, as laid down by the Lord Chief Baron, in [ * 122 ] Bering v. * The Earl of Winchelsea, that a surety may com- pel contribution from another for payment of a debt for which they are jointly or severally, or jointly and severally, bound V)y the same instrument: Fleetivood v. Charnock, Nels. 10; Underhill v. Horwood, 10 Ves. 226; Craythorne v. Swinburne, 14 Ves. 164. It was, however, decided, for the first time in Bering v. The Earl 188 BERING V. EARL OF WTNCHELSEA. *122 of Winchelsea that there is no difFerpnce whether the parties are bound in the same or by different iustrumentH, provided they are co-securities for the sam« princi[)al and in the same engagement. [The sureties may be bound at different times, or by different instru- ments, but this does not affect the right of contribution; provided, they in reality occupy the position of co-sureties: Warner v. Price, 3 Wend. 397; Stout v. Vance, 1 Kobinson (Va)., 109; Arm- itage V. Pulver, 37 N. Y. 494; Bell v. Jasper, 2 Iredell, 597. If, however, each suretyship is a separate and distinct trans- action, the right of contribution will not exist: Langford v. Perrin, 5 Leigh, 552; Moore v. Isley, 2 Dev. & Bat. Eq. 372.] And, further, that there is no difference if they are bound in dif- ferent sums, except that contribution could not be required beyond the sum for which they had become bottnd (see Craythorne v. Swin- burne, 14 Ves. 169; Ware v. Horivood, 14 Ves. 31; Mayhew v. Crickett, 2 Swanst. 192; Stirling v. Forrester, 3 Bligh, 596), each surety being ordinarily bound to contribute his proportionate part. In re MacDonayhs, Minors, 10 I. E. Eq. 269. And it seems that the right of a surety to enforce contribution against co-sureties will not be affected by his ignorance at the time he became surety that they were also co-sureties: Craythorne v. Swinburne, 14 Ves. 163, 165. Where, however, sureties are bound by different instruments for distinct portions of a debt due from the same principal, if the suretyship of eacji is a sej^arate and distinct transaction, the doctrine laid down in Dering v. Lord Winchelsea will not apply, and there will be no right of contribution among the sureties: Coox)e v. Twy- nam, 1 T. & K. 426; Pendlebury v. Walker, 4 Y. & C. 429; Arce- deckne v. Lord Hoivard, 27 L. T. Rep. (N. S.) 194, 20 W. 11. 879, re- versing the decision of Sir R. Malins, reported 20 W. R. 571. Nor would there be any right to contribution among sureties, bound by the same instrument, if they were only liable for distinct portions of a debt from the same principal, for which none of them were liable in the aggregate. Suppose, for instance, the principal under a bond was bound to the creditor in 1000?, and four sure- ties became thereby guarantees for the payment, not of the whole lOOOZ., jointly and severally with the others, but each guaranteed severally 250Z. parcel of the lOOOZ. Then the creditor could only apply to each surety for payment of the 250Z., or such proportion of it as'remained due after any payment by the principal, and there could be no contribution between the sureties, because they were not liable for the same debt. See Ellis v. Emanuel, 1 Ex. D. 162, case put and observations of Blackburn, J. [If the sureties are not bound for the same thing and do not occupy the position of co- sureties, then, the surety paying the debt cannot enforce con- tribution, (2) a subsequent surety may have no right as against the first, (3) the surety first in point of time may have no remedy against one who is subsequent. As to (1) see Longlev v. Griggs, 189 * 123 DERING V. EARL OF WINCUELSEA. 10 Pick. 121; (2) Burns t;. The Huntingdon Bank, 1 B. & W. 395; Scbaitzell's Appeal, 13 Wright (Pa.) 23: Douglass r. Fagg, 8 Leigh,' 588; (3) Harris v. Warner, 13 Wend. 400; Thompsons. Sanders, 4 Dev. & Bat. Eq. 404.] Although the liabilities of successive indorsers of a bill [ * 123 ] or note must, in the absence of all evidence * to the con- trary, be determined according to the ordinary principles of law merchant, whereby a prior indorser must indemnify a subse- quent one; if, however, it appear from the evidence that the parties made the indorsements pursuant to a mutual agreement to be co- sureties, they will be entitled and liable to equal contributions inter se, and are not liable to indemnify each other successively according to the priority of their indorsements: Macdonald v. Whitfield, 8 App. Cas. 733, 744, 745; Reynolds v. Wheeler, IOC. B. (N. S.) 561. The right of a surety to claim contribution from a co-surety arises when the surety has paid either the whole or more than a just proportion of the debt for which they are liable to the princi- pal creditor (Davies v. Hmnphreys,Q M. & W. 153, 168; Hitchman v. Stewart, 3 Drew. 271; Lawson v. Wright, 1 Cox, 275), and until he has done so he cannot claim contribution, even though the co- surety has not been required by the creditor to pay anything, pro- vided that the co-surety has not been released by the creditor: Ex jMrte Snowdon, 17 Ch. D. 44. [Glass r. Pullen, 6 Bush, 346; W^ood V. Leland, 1 Met. 387.] A surety who has been compelled to pay the debt, may in the same action sue the principal debtor for repayment and the co-sure- ties for contribution. And in an action for contribution to which the principal debtor is a party, the principal debtor will be ordered to pay not only the amount which a co-surety has been ordered to pay by way of contribution to the surety who has paid the creditor, but also the amount due to the surety not satisfied by such contri- bution: Laivson v. Wright, 1 Cox, 275; Hitchman v. Steivart, 3 Drew. 271; Greerside v. Benson, 3 Atk. 253 n.; Walker x. Presicick, 2 Ves. 622; Belt's Supp. 427, 428; 2 Seton Decrees, 1181, 4th Ed. [A surety is not allowed to speculate on the debt, and if he com- promises the claim in any way, his co-sureties are entitled to the benefit of such compromise. The co-sureties are liable only for the proportionate part of the amount actually paid with interest. Hickman v. McCurdy, 7 J. J. Marsh, 555; Swan's Estate, 4 Iredell, 209; Bonney v. Selly, 2 Wend. 481; Wynn v. Brooks, 5 Eawle, 106; Lawrence v. Blow, 2 Leigh, 30.] The surety, moreover, has the right (although it appears in prac- tice to be rarely exercised) at any time to apply to the creditor and pay him off, and then (on giving a proper indemnity for costs) to sue the principal debtor in the creditor's name: per Cockburn,C. J., in Swire v. Redman, 1 Q. B. 541. A surety will in equity be entitled to interest from the principal debtor and his co-sureties for the money which he has paid: Laiv- 190 BERING V. EARL OF WINCUELSEA. * 124 sonv. Wright,! Cox, 275, 277; 2 Seton Decrees, 1181, 4th Ed; Hitchman v. Stewart, 3 Drew. 271; Swain v. Wall, 1 Ch. Rep. 149; Petre v. Duncombe, 15 Jur. 80. See, however, Onge v. Truclock, 2 Moll. 31, 42; Bell v. Free, 1 Swaast. 90; Rigby v. AVNamara, 2 Cox, 415. And it has been held in Ireland, overruling the cases of Onge v. Truelock, 2 Moll. 42, and Salkeld v. Abbott, Hayes and Jones, 110, that where one of. two sureties had paid the full amount of a receiver's * recognizance, he was entitled to use the [ * 124 ] recognizance for the purpose of recovering out of the es- tate of his co-surety, not only one-half of the sum so paid by him, but also interest thereon from the date of payment: In re Swan''s Estate, 4 Ir. Eq. 2u9. It has also been held that a surety is not entitled to interest as against the estate of a deceased principal, but where a fund as- signed as a further security had made interest, he was allowed in- terest therefrom: Cauljield v. Maguire, 2 J. & L. 164. Although the principle of contribution is not founded upon con- tract, still a person may by contract qualify, or take himself out of the reach of, the principle or the implied contract. Thus, where three persons became bound for the principal debtor in an obliga- tion, and agreed among themselves that, if the principal debtor failed to pay the debt, they would pay their respective parts; two became insolvent, and the third paid the money; and one of the in- solvent sureties afterwards becoming solvent, he was held liable to contribute one third only: Swain v. Wall, 1 Ch. Rep. 149; see also Craijthorne v. Swinburne, 14 Ves. 165; Coope v. Ticynam, 1 T. & R. 426; Collins v. Prosser, 1 B. & C. 682; Armstrong v. Cahill 6 L. R. I. 440. [The various liabilities of sureties frequently depends upon the express understanding of the parties to the transaction, and oral testimony is generally admissible to show what the under- standing was: Hendrick v. Whittemore, 105 Mass, 23; Barry v. Ransom, 12 N. Y. 462; Apgar v. Hiler, 4 Zab. 888.] So also a person may take himself entirely out of the principle, as where he becomes merely a collateral surety, by limiting his lia- bility to payment of the debt upon the default of the principal and other sureties; and on a bill in such a case, filed for contribution, parol evidence is admissible to show what the real contract was, and to rebut the implied contract which equity raises in cases of contribution: Craythorne v. Sicinburne, 14 Ves. 160, overruling Cooke V. , 2 Freem. 97; S. C, 2 Eq. Ca. Ab. 223, pi. 1. [Pa- rol evidence is admissible to show the true relations of the parties signing an instrument as between themselves, as that they are co- sureties: Graves V. Johnson, 48 Conn. 160; Mansfield ?'. Edwards, 136 Mass. 15; Paul v. Rider, 58 N. H. 119.] See also Hartley v. O' Flaherty, L. & G. temp. Plunk. 217, where Lord Pliinket says, "■ In the case of A. undertaking that if the principal does not pay, and if B., who has already become security, does not pay, he. A., will 191 * 125 BERING V. EARL OF WINCHELSEA. pay, it seems perfectly clear that B., in that ease paying the whole, would have no claim of contribution against A." As to the mode of working out a joint and several liability affect- ing a class of persons of whom some had died and others become bankrupt, see Asfmrst v. Mason, 2 Seton Decrees, 1183, 1184; Form 6; S. C, 20 L.'K. 225; Joint Stock Discount Company v. Brown, 8 L. R. Eq. 376, 406. The mode of procedure where a defendant claims to be entitled to contribution or indemnity over against any other person not a party to the action, and therein called a third party, may now be found in the Rules of the Supreme Court, 1883, Order XVI., rules 48—54, substituted for the Order 1875, XVI., rules 19— [ * 125] 21, thereby annulled, as to wbich see 2 Seton *on Decrees, 4 Ed., pp. 1184, 1185, Forms 8, 9. Where a defendant claims to be entitled to contribution or indem- nity against any other defendant to the action, a notice may be issued and the same procedure ^hall be adopted for the determination of such questions between the defendants, as would be issued and taken ao-ainst such other defendant if such last-mentioned defendant were a third party ; but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the action: [As soon as the creditor has acquired the right to immediate payment, from the surety, the latter is entitled to call upon the principal debtor to pay the amount of the debt which has been guaranteed, so as to relieve the surety from his obligation. Rice v. Downing, 12 B. Mon. 44 : Bishop V. Day. 13 Vt. 81; Stevenson v. Taverness, 9 Grat. 398; Pride v. Boyce, Rice's Eq. 276.] Rules of Supreme Court, 1883, Order XVI., rule 55, substituted for Order of 1875 XVI., rules 17, 18. Eden v. Weardale Iron and Coal Compamj, 28 Ch. D. 333. Right of surety to certain securites of creditor.'] — Sureties are not only entitled to contribution m^er se, but as a general rule also they are entitled to call upon any one of their co-sureties who may have obtained from the principal debtor a counter-security for the liability he may have undertaken, to bring into hotchpot, for the benefit of all the sureties, whatever he may receive from that source, even though he consented to be a surety only upon the terms of having the security, and the co-sureties were, when they entered into the contract of suretyship, ignorant of his agreement for a security : Sicain v. Wall, 1 Ch. Rep. 140; Steel\. Dixon, 17 Ch. D. 825; Miller v. Sawyer, 30 Vermont, 412; Hall v. Robinson. 8 Iredell, 56; Lake V. Brutton, 8 De G. M. & G. 441; Forbes v. Jackson, 19 Ch. D. 615; Lea v. Hinton, 5 De G. M. & G. 823; Drysdale v. Piggott, 8 De G. M. & G. 546; Knox v. Turner, 5 L. R. Ch. App. 515; Bruce v. Garden, 5 L. R. Ch. App. 32. So if one of several co-sureties pays off the debt and obtains from the creditor an assignment of policies of assurance he had effected on the life of the debtor, contribution will only be enforced against 192 BERING V. EARL OF WINCIIELSEA. * 126 the other co-sureties, in favour of the co surety who had paid the debt, upon the terms of his bringing into account as a set-off the moneys receiveil u[)on the policies on the death of the debtor, creait being lirst given for the premiums and other moneys which had been paid in reference to the transaction: l)i re Arcedeckne, Atkins \. Arcedecktie, 24 Gh. D. 709. Those, how(wer, to whose benefit the security enures mayloy con- tract take themselves out of its benefit, and the question may there- fore well have to be considered in each case whether there has been such a contract between the co-sureties (per Fry, J., in Stez-l v. Dixon, 17 Ch. D. 832); and in such a case as In re Arcedeckne, Atkins V. Arcedeckne, such transactions might take place between the surety taking an assignment of policies on payment of the creditor and his co-sureties, which would show that * the [ * 120 ] co-sureties abandoned the policies altogether and declined to take either the burden or the benefit of them: In re Arcedeckne, Atkins V. Arcedeckne, 24 Ch. D. 716. Cases may also arise in which one co-surety, by reason of his de- fault in performing his duty towards the other, may estop himself from asserting the equity which he would otherwise have had against him: [In order to take away the Equitable right of enforcing con- tribution there must be an evil intent similar to the element of in- tent in the criminal law where an ignorance of fact of a sort to free one from culpability will excuse what otherwise would be punish- able: 1 Bishop's Crim. Law sec. 301; Moore v. Appleton, 26 Ala. 633; Adamson v. Jarvis, 4 Bing. 66; Acheson v. Miller, 2 Ohio. 203.] lb. As a general rule also (subject, however, to some few qualifica- tions) a surety is entitled to the benefit of all the securities xvhichthe creditor has against the princij^al. Thus, if a surety join with the principal in a promissory note or bond, and the sui'ety pays the debt, he will be entitled to have a transfer of any mortgage which the creditor may have taken for his debt. "I take it," says Lord Eldon, "to be exceedingly clear, if at the time a bond is given a mortgage is also made for securing the debt, the surety, if he pays the bond, has aright to stand in the place of the mortgagee; and as the mortgagor cannot get back kis estate again without a conveyance, that security remains a valid and effectual security, notwithstanding the bond debt is paid:" Copis v. Middleton, T. & R. 231; see also Hodgson V. Shaic, 3 My. & K. 195; Gaijner v. Roijner, cited in Robinion v. Wilson, 2 Madd. 434; Yonge v. Reynell, 9 Hare, 809; Goddard v. Whyte, 2 GifF, 449; Brandon v. Brandon, 3 De G. & Jo. 524. And it is immaterial that the surety was not aware of the existence of the security (Mai/hetv v. Crickett, 2 Swanst. 191; Scott v. Knox, 2 Jones, 778); or whether they were taken by the creditor before or after the contract of suretvship: Fledge y. Buss, Johns. 663; Pearl v. Deacon, 24 Beav. 186; f De G. & Jo. 461; Coates v. Coates, 10 Jur. N. S. 532. Sed vide Neivton v. Chorlton, 10 Hare, 646, 2 Drew. 342; 13 WHITE ON EQUITY. 193 * 127 DERING V. EARL OF WINCHELSEA. doubted by Knight- Bruce, L. J., 2 Jur. N. S. 840; see Rees v. Berriugton, vol. 2, post, and note. But the surety may lose his right against the principal security, by taking from the principal debtor a security upon other property (Cooper V. Jenkins, 32 Beav. 337), unless be has done so without knowledge of the security held by the creditor, which was available for his own indemnity: Lake v. Brutton, 18 Beav. 34; 8 De G. Mac. & G. 440; Brandon v. Brandon, 5 Jur. N. S. 256; 3 De G. & Jo. 524. Where, moreover, a surety for a mortgagor pays off part of the mortgage debt, he is entitled as against the mortgagor to a charge on the estate for the amount he has so paid: Gedye v. Matison, 25 Beav. 310. A surety, however, for part of a debt, is not entitled to the benefit of a security given by the debtor to the creditor at a diff- [* 127 ] erent time * in a distinct transaction for another part of the debt: Wadey. Coope, 2 Sim. 155; South v. Bloxam, 2 H. & M. 457. Where a surety pays a sum of money, in discharge of his guar- antee, leaving a balance for which he was not surety still unpaid, if the security of the principal creditor is not delivered up, nor any- thing said about it, the presumption is that the original security was intended to remain as to the balance, and it will not be treated as released. See Waugh v. Wre^i, 9 Jur. N. S. 365; 11 W. R. 244. There a security was given for a floating balance of 2000Z., and when the debt had reached 4600Z., a surety for 2000Z. paid a sum of 3000Z. in discharge of his guarantee, but the security was not given up; it was held that the creditor was entitled to hold the security for the balance. The question has been much discussed whether a mortgagee whose original advance has been secured by a surety, can, as against the surety, tack a subsequent mortgage to the same creditor, or whether the surety, upon paying off the original advance alone, cannot call for an assignment of the original security. In the case of Williams V. Oiven, 13 Sim. 597, where a mortgage debt was further secured by the covenant of a surety for the mortgagor, and the mortgagee made a further advance and then recovered the first mortgage debt from the surety, it was held that the surety must pay the amount of the further advance before he could get an assignment of the prop- erty to him. In the subsequent case of Boivker v. Bull (1 Sim. N. S. 29; 15 Jur. 4), a contrary decision was arrived at by Lord Cra^i- worth, L. C. There the principal debtor mortgaged one estate, and the sureties another, in order to secure the debt, and the principal made a second mortgage of his estate to the same mortgagee for another sum; it was held that the sureties were entitled to redeem the first mortgage on payment of the first mortgage debt only, and the mortgagee was not entitled to tack the second mortgage. Lord C. anworth (as Williams v. Owen, 13 Sim. 507, was not cited to him) 194 BERING V. EARL OF WINCIIELSEA. * 128 was probably not aware of the case, and therefore did not intend to overrule it; but althouj^h Lord Komilly, M. R., in the Bubsequent case of Farebrofher v. Woodhouse, 23 Beav. 1 8, seemed to be of opin- ion that Lord Cranworth's decision in Bowker v. Bull was depend- ent on the special contract in the case, it has been approved of by- subsequent decisions, and the case of Williams v. Given was clearly overruled in and is inconsistent with Uopkinson v. Roll (9 H. L. 514), a decision of the House of Lords. See In re Kirkwood's Es- tate, 1 L. R. I. 108. It seems to be clear, therefore, that in such cases a mort- gagee making a second advance with * notice of the surety- [ * 128] ship cannot tack the two securities, as against the surety paying off the sum secured by the first. See also Bank of White- haven v. Daicson, 4 Ch. D. (349, 650; reversed on, another point, 6 Ch. D. 218; Netcton v. Chorlton, 10 Hare, 646; Forbes v. Jackson, 19 Ch. D. 6 1 5. See and consider Farebrothe v. Wodehouser, 23 Beav. 18, pos^ 129, 130. A surety who pays off a debt for which he became answerable is entitled not only to all the equities which the creditor could have enforced against the principal debtor, but also against all persons claiming under him. [A person who has become surety for another is, if he discharges the debt of his principal, entitled to recover of him, or his co-sureties, or any one claiming under them, on a contract which the law will imply, though nothing on the subject was said when the suretyship was entered into: Clay v. Severance, 55 Vt. 300; Ward v. Henry, 5 Conn. 505; Kimble r. Cummins, 3 Met. (Ky.) 327; Powell v. Smith, 8 Johns. 240; Hassenger r. Solms, 5 S. & R. 4; Gibbs v. Bryant, 1 Pick. 118.] Hence a surety will not be de- prived of his right to the principal security, by a further mortgage by the debtor to a person who had notice of the first mortgage, though the second mortgagee got in the legal estate. See Dreiv v. Lockett, 32 Beav. 499. There A. mortgaged his estate to C, and B. became A.'s surety for the debt. Afterwards A. mortgaged the estate to D., who had notice of the first mortgage. The first mortgage was after- wai-ds paid off, partly by B. the surety, but D. got the transfer of the legal estate. It was held by Sir John Romilhj, M. K., that the surety still had priority over D. for the amount paid by him under the first mortgage as surety for A. See also Bowker v. Bull 1 Sim. J^. S. 29; Lancaster v. Evors, 10 Beav. 154. Upon the same principle a surety, as standing in the place of the creditor, has been held entitled to marshal securities not only as against the principal debtor, but also as against all persons claiming under him. See Heyman v. Dubois, 13 L. R. Eq. 158. There A., having effected policies upon his own life with an assurance office, mortgaged them to the office as a security for successive loans. In one of these mortgages B. became surety for repayment of the amount borrowed. A. subsequently became bankrupt, and B. was compelled as surety to pay part of the debt. Upon A-'s death, it was held by 195. * 129 BERING V. EARL OF WINCHELSEA, Bacou, V.-C, that as against A-'s assignee in bankruptcy, B. was entitled to marshal the securities so as to obtain repayment out of the balance of the several policy moneys of the amount which he had been compelled as surety to pay. See also In re Westzinthus. 5 B. &Ad. 817; Spalding v. Ruding, 6 Beav. 376; note to Aldrich v. Cooper, vol. 2, x>o8t. A surety, moreover, has a right to set off, as against the demand of the creditor, a debt due from the principal debtor to the creditor arising out of the same transaction in which the* liability of the surety arose. See Bechervaise v. Leivis, 7 L. R. C. P. 372. There the defendant as surety joined Rowe in a joint and several note to the plaintiff for a sum which Rowe had agreed to pay the [ * 129 ] * plaintiff. Afterwards, without the consent of the defend- ant, the plaintiff became indebted to Rowe by receiving various partnership debts sold to Rowe, and in payment for which the note was given, thereby rendering it impossible for him, either during the life of Rowe or after his death, to proceed against him or his representatives in order to indemnify the defendant in respect of the note which became due during life of Rowe. It was held by the Court of Common Pleas that the sui-ety by way of equitable defence might plead a special plea of a set-off* due from the creditor, arising out of the same transaction, in respect of which the liability of the surety arose. "A surety," said Willis, J., "has a right, as against the creditor, when he has paid the debt, to have for reimbursement the benefit of all securities which the creditor holds against the prin- cipal. This alone would not help the defendant here, because he has not, nor has the principal, actually paid the creditor, and in our law set-oif is not regarded as an extinction of the debt between the parties. The surety, however, has another right, ^^z., that as soon as his obligation to pay is become absolute, he has a right in equity to be exonerated by his principal. Thus we have a creditor who is equally liable to the principal as to the principal to him, and against whom the principal has a good defence in law and equity; and a surety who is entitled in equity to call upon the principal to exon- erate him. In this state of things we are bound to conclude that the surety has a defence in equity against the creditor; and we are justified in doing so by the authority of the civil law alluded to in the course of the argument, to be found in Dig. Lib. XVI., tit. II., sect. 4. ' Verum est, quod et Neratio placebat et Pomponius ait, ipso jure eo minus fidejussorum ex omni contractu debere quod ex compensatione reus retinere potest. Sicut enim cum totum peto a reo, male peto, ita et fidejussor non tenetur ipso jure in majorem quantitatem, quam reus condemnari potest.' " Where, moreover, a surety pays off a mortgage debt of the prin- cipal debtor, he may set off" in bankruptcy the money which thus becomes due to him as being entitled to the benefit of the securi- ties against money due from himself to the owner of the equity of redemption, and where the equity of redemption belongs to a joint 196 BERING V. EARL OF WINCIIELSEA. * 130 stock company, to which calls are duo from the surety, he may set <;i"f his payment against the calls: Ex parte Barrett, 34 L. J. (Bank.) 41. So likewise, a surety for the payment of the price of goods, as in the case of a broker of the London Dry Goods Market, who contracts for the purchase of ^- goods without dis- [*130] closing his principal, for whom he is liable in default of the principal, upon payment of the price of the goods is entitled to the benefit of the vendor's lien: Imperial Bank v. London and St Katherine Docks Company, 5 Ch. D. 105. It has been held that where separate debts were due upon dis- tinct securities from the principal debtor to the creditor, the latter will not lose his right to consolidate, by the fact that a third party who has become surety for one of the debts, has either voluntarily or upon proceedings taken against him by the creditor, paid off such debt, and that the surety therefore could not call for an assignment of the securities for the debt he had paid off. See Farebrother v. Wodehouse, 23 Beav. 18. There the defendants lent A. B. at the same time two sums of 2000/. and 3000Z. on distinct securities, and the plaintiff was surety for the first sum. It was held by Sir John Bomilhj, M. R, that the plaintiff, on paying the 2000/., was not en- titled to have a transfer of the securities held for that sum, until the defendants had also been paid the 3000Z. There was an appeal, which was afterwards compromised (26 L. J. (Ch.) 240), on this case; it seems, however, to be contrary to the principles of those decisions on tacking in which the right of the surety to an assignment of securities for the debt he has satis- tied has been upheld. See ante, p. 1 27. When a mortgagor has given a collateral security for the original debt, and borrows a further sum, which is guaranteed by a surety, the latter is entitled to the surplus value of the securities, after pay- ment of the original debt, towards payment of that debt for which ho is surety. See Praed v. Gardiner, 2 Cox, 86. There A., being indebted to B., lodged several securities for money with him, as collateral securities for that debt. A. afterwards bon-owed a fur- ther sum of money fi-om B., for which C. became his surety. A. became bankrupt, and B. called upon C. to pay the second debt. It was held that the securities in the hands of B., being more than sufficient to pay the first debt, C. ought to have the benefit of the surplus in reduction of the second debt. See also Copis v. Middle- ton, T. & K 224; Hodgson v. Shaxc, 3 Mv. & K. 183, 195. Sedvide Allen v. De Lisle, 5 W. K. (V.-C. S.) 158; 3 Jiu-. N. S. 928; Saic- yer v. Goodivin, 1 Ch. D. 351. The right of the surety to have the benefit of the securities held by the creditor is derived from the obligation on the part of the principal to indemnify the surety: Yonge v. Beynell, 9 Hare. 818. And if through neglect on the part of a creditor a security to the benefit of which a sui'ety is entitled is lost, "or not properly 197 * 132 BERING V. EARL OF WINCHELSEA. [*131] perfected, * the surety will be discharged so far regards the amount of the security so lost: Strange v. Fooks, 4 Giff. 408; 2 Seten on Decrees, 1185, 4th ed. See further on this subject, note to Rees v. Berrington, vol. 2, post. The rules as to a surety's right to securities do not, it seems, ap- ply where the only suretyship is created by indorsing and discount- ing a bill of exchange: Duncan Fox & Co. v. North and South Wales Bank, 11 Ch. T>. 88. "Where, moreover, a surety gets rid of and discharges an obliga- tion at a less sum than its full amount, he cannot, as against his principal, make himself a creditor for the whole amount, but can only claim what he has actually paid in discharge of the common obligation: Beed v. Norris, 2 My. & C. 361, 375. Courts of equity, it seems, would, at a very early period, compel assignments of securities to a surety to a much greater extent than in later times they took upon themselves to do. There is a very strong instance of the application of that equity in Parsons v. Briddock, 2 Vern. 608. In that case the principal had given bail in an action; judgment was recovered against the bail; afterwards the surety was called upon and paid; and it was held, that he was enti- tled to an assignment of the judgment against the bail. So that, though the bail were themselves but sureties as between them and the principal debtor, yet, coming in the room of the principal debtor as to the creditor, it was held, that they likewise came in the room of the principal debtor as to the surety. Consequently that de cision established that the surety had precisely the same right that the creditor had, and Was to stand in his place. The surety had no direct contract or engagement by which the bail were bound to him, but only a claim against them through the medium of the creditor, and was entitled only to all his rights. But where more recently a creditor sued his principal debtor and recovered a judgment against him, and the bail in the action and the surety thereupon "paid and satisfied" to the creditor the amount of the judgment, with interest and costs, and took an assignment thereof. Lord Langdale, M.R., held, that the judgment was dis- charged, and that the surety could not recover on the judgment against the bail. Armitage v. Baldivin, 5 Beav. 278; Hodgson v. Shaw, 3 My. & K. 189; Dowhiggin v. Bourne, 2 Y. & C. Exch. Ca. 462. Upon the same principle, although it was at one time thought that a surety paying off the debt of the principal, secured by their bond, was entitled to have from the creditor an assignment of the debt and of the bond by which it was evidenced or secured, [ * 132 ] the contrary was fully established *iu two cases decided by Lord Eldon, C, and Lord Brougham, C, where the whole subject was examined in a most elaborate manner. See Copis V. Middleton, 1 T. & E. 229, where Lord Eldon said: "It is a gen- eral rule, that, in equity, a surety is entitled to the benefit of ail the 198 DERING V. EARL OF WINCHELSKA. * 133 securities which the creditor has against the principal; but then the nature of those securities must be considered. AVhere there is a bond merely, if an action was brought upon the bond, it would ap- pear upon oyer of the bond that the debt was extinguished. Th(» general rule, therefore, must be qualified by considering it to ap- ply to such securities as continue to exist, and do not get back upon payment to the person of the principal debtor. In the case, for in- stance, where, in addition to the bond, there is a mortgage, with a covenant on the part of the principal debtor to pay the money, the surety paying the money would be entitled to say, 'I have lost the benefit of the bond; but the creditor has a mortgage, and I have a right to the benefit of the mortgaged estate which has not got back to the debtor.' " See also the remarks of Lord Brougham, in Hodgson v. Slimc, 3 My. & K. 190. It followed, contrary to what was formerly considered to be the law, that a surety, paying off the bond debt of the principal, was in the administration of his assets me^ly a simple contract, and not a specialty creditor. Copis v. Middleton, 1 T. & R. 229. See also Jones V. Davids, 4 Russ. 277; In re Warnock^s Estate, 11 I. R. Eq. 212. Where, however, a surety upon a second bond, given by him as a collateral security for a debt secured by the original bond of his principal, paid off the debt, he was entitled to an assignment from the creditor of the original bond; for the original bond still re- mained as an existing security; and the surety, therefore, upon an assignment of it, ranked as a specialty creditor against the assets of the principal debtor. Thus, in Hodgson v. Shaiv, 3 My. & K. 183, "A. and B. executed a joint and several bond, to secure a sum of money with interest to AV. Subsequently to the deaths of A. and W., the executors of W. obtained from B. as principal, and from C. as surety, another bond, to secure a part of the money then due on the original bond, with interest. No payments were ever made in respect of the first bond; but after C.'s death the second bond was paid off out of C.'s estate, and his representatives there upon procured the original bond to be assigned to them: it was held, in a suit to administer the estate of A., that C.'s representa- tives were entitled, by virtue of the assignment, to rank as speci- alty creditors of A.'s estate, in respect of the payments made by C. or his * estate of the second bond, to the ex- [ * 133 ] tent of the penalty in the assigned bond;" and see Done v. }Valletj, 2 Exch. 198. Where a surety paid the debt due from a defaulter to the Crown, the Court-of Exchequer would allow him to stand in the place of the Crown: Regina v. Salter, 1 H. & N. 274; Regina v. Robinson, lb. 275, n. Extension of the surety^ s right to the securities of the creditor by the Mercantile Law Amendment Act, 1856.] — According to the law 199 * 134 BERING V. EARL OF WINCHELSEA. of Scotland the surety has always been entitled to call upon the creditor for a surrender or assignment of all separate and collateral Feeurities obtained by him for the debt, his right not being limited by the exception introduced or approved of by Copis v. Middleton, and Hodgson v. Shaiv. "The equity and propriety of the Scottish rule" are by the Mercantile Law Commissioners stated to be "ob- vious, inasmuch as the surety obtains much aid in operating his re- lief from the hardship of having been compelled to pay another party's debt, and yet no detriment is thereby inflicted on any other party." (Mercantile Commission, Second Eeport, 1855, p. 13.) In accordance with their recommendation, the law of England upon this sul^ject has been assimilated to that of Scotland by the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), which enacts, that "Every person who, being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have as- signed to him, or to a trustee for him, every judgment, specialty, or other security which shall be held by the creditor irw respect of such debt or duty, whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty; and such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a proper indemnity, to use the name of the creditor, in any action or other proceedings at law^ or equity, in order to obtain from the principal debtor, or any co- security, co-contractor, or co-debtor, as the case may be, indemnifi- cation for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty; and such pay- ment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him : Provided always, that no co-surety, co-contractor, or co-debtor, shall be en- titled to recover from any other co-surety, co- contractor, or co-debtor by the means aforesaid, more than a just proportion to [*134] which, as between those parties * themselves, such last- mentioned person shall be justly liable." Sect. 5. See Allen V. De Lisle, 5 W. K 158, V.-C. S. The statute applies to a co-debtor as well as to a surety. Thus a debtor who has paid the whole debt, recovered under a judgment against himself and his co-debtors, has a right to an assignment of such judgment. See Batchelor v. Lawrence, 9 C.B. (N.S.) 543, where, in an action by a co-debtor against the judgment creditor, refusing to make such assignment, it was held by the Court of Common Pleas, that a plea that the plaintiif was taken in execution on the judgment, and the judgment was satisfied, by the payment of the plaintiff, was a bad plea. See also SUk v. Eyre, 9 I. R. Eq. 393: Re Swan, 4 L R. Eq. 209. And a trustee suing his co-trustee for an indemnity against a breach of trust is within the Act: Lockliart v. Reilly, 1 De G. & Jo. 464 200 DERING V. EARL OF WINCIIELSEA. * 135 But it seems that tlie Court had no power, under sect. 5 of the Act to enforce the remedy of one co-surety against the other upon motion. See Phi,llij>s v. Dickson, 8 C B. (N. S.) 3'Jl. The Act is a})plical)le to a contract made before the passing of the Act, where a breach of it has taken place and a i)ayment has been made by a surety or co-debtor under such contract after the passing of the Act: Lockhart v. Reilly, 1 De G. & Jo. 464; In re Cochran'' s Estate, 5 L. K. Eq. 209. It may be here mentioned that when an executor, who has joined as surety with his testator, i^a^.S' the amount of the debt after the testator's death, he is entitled to retain the amount out of the testa- tor's assets as against all creditors of equal degree: Ex parte Boyd, 18 W. R. (L. C.) 419. But although under the 5th section of the Mercantile Amend- ment Act 185G, a surety who discharges a specialty debt becomes a specialty creditor of the principal debtor, a specialty debt is not created by reason of the enforcement by the surety of his right to indemnity against a specialty debt for which he is liable but which he' has not discharged. See Ferguson v. Gibson, 14 L. R. Eq. 379, 38G. There A. wife of the testator, under a power mortgaged her estate as a collateral security for the mortgage debt of her husband. He died leaving a deficient estate, his wife and daughter being ex- ecutrixes. The mortgage debt not having been paid at the date of a decree for the administration of the estate, it was held that the widow executrix was entitled to retain an indemnity as surety as against the simple contract creditors only, inasmuch as her right to indemnity did not amount to a specialty debt. If, however, she had actually paid the mortgage debt, or it had been raised out of her estate by a mortgage * she [* 135] might have acquired a right of retainer as against the specialty creditors: per Wickens, V.-C, in Ferguson v. Gibson, 14 L. R. Eq. 386. It must, however, be remembered, that under Hinde Palmer's Act (32 & 33 Vict. c. 46), in the case of persons dying on or after the 1st January, 1870, their debts by specialty and simple contract are payable x)o.^ passu. Right of Surety j>a?/i»fir debt to stand in the place of the creditor in bankruptcy.^ — In many other cases, the surety paying the debt has been held to have a right to stand in the place of the creditor. Thus, although under the old Bankrupt law, pi-ior to 49 Geo. 3, c. 121 (s. 8), unless the surety had paid the creditor before the bank- ruptcy of the principal, he could not prove under such bankruptcy ( Taylor v. Mills, Cowp. 525 ; Paul v. Jones, 1 T. R. 599 ; Ex p)arte Marshall, 1 Atk. 130). Nevertheless, where the creditor had proved the debt against the estate of the principal, and the surety after- wards paid him the debt, the creditor was held a trustee of the divi- dends for the surety: Ex parte Rushforth, 10 Ves. 409; Ex parte Turner, 3 Yes. 243; Paleyy. Field, 12 Ves. 435; Wright v. Morley, 11 201 * 136 BERING V. EARL OF WINCHELSEA. Ves. 1 2 ; Watkins v. Flannagan,2 Euss. 421. So a surety might com- pel the creditor to go in and prove the debt under the bankruptcy or the principal debtor, and if the surety paid the whole, the creditor would be a trustee of the dividends for him: {Ex parte Rushforth, 10 Yes. 414). And if the creditor had already received a dividend, he would be compelled to account for it to the surety: Ex parte Holmes, Mont. & Ch. 301. The law by which the surety, on his payment after proof of the creditor, can compel the creditor to account for any dividend he may have received, was not altered by the Bankruptcy Act, 1869 (Hob- son V. Bass, 6 L. E. Ch. App. 792), nor, it seems, by the Bank- ruptcy Act, 1883. Under successive Bankruptcy Acts sureties had the right, although they may have paid the debt of the principal debtor after his bank- ruptcy, to prove against his estate, or stand in the place of the creditor who may have proved. See 49 Geo. 3, c. 121, s. 8; 6 Geo. 4, c. 16, s. 52; 12 & 13 Vict. c. 106 (the Bankruptcy Act, 1849), s. 173. The Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), contained no provision upon this subject, but it was presumed by a learned au- thor on bankruptcy that the right of sureties in such cases depended upon the former enactments, though repealed. See Eobson on Bankruptcy, 265 3rd ed., 309, 5th ed. And although the Bankruptcy Act of 1883 contains no [ * 136 ] express provision on the same subject, if a * surety pay the debt after the bankruptcy and before the creditor has proved, the surety may nevertheless, under sub-s. 3 of sect. 37 of the Act of 1883, prove as for a debt to which the bankrupt becomes subject before his discharge, by reason of an an obligation incurred before the date of the receiving order. AVhere after proof of a debt by a creditor a surety for the whole pays 2^cirt only to the creditor not in discharge of the whole, the creditor may receive dividends on the full amount of his proof, provided he does not receive in the whole more than 20s. in the pound: Ex j^arte Cobblestone, Re Snell, 4 Deac. 54; see also Ex parte Turquand, In re Fothergill, 3 Ch. D. 445. If, however, the surety afterwards pays the creditor the whole of the debt remaining due, he will be entitled to stand in the place of the creditor as to the future dividends until, by means of those divi- dends, he has been fully satisfied: Ex parte Johnson, 1 De G. Mac. & G. Bank. Eep. 179, 199. If a surety, before the bankruptcy of the principal debtor, pays part of the debt, he will be entitled to prove for so much as he paid {Ex parte Wood, 10 Ves. 415, cited; Ex parte Turner, lb.; 3 Ves. 243; Paley v. Field, 12 Ves. 435). But the right of the surety in such cases to stand in the place of the creditor as to the dividend upon the amount paid by him, may by contract be waived in favour of the creditor until he has received 202 BERING V. EARL OF WINCHELSEA. * 137 the fiill amount of bis debt: Midland Banking Company v. Cham- bers, 7 L. K. Eq. 179, 188; 4 L. 11. Ch. App. ^i'.iS; Ex parte Hope, 8 M. D. & DeG. 720; Ex parte Miles, 1 Do G. 023; Ex pai-te Na- tio)ial Provincial Bank of England, 17 Cb. D. 08; Gee v. Pack, 33 L. J. (Q. B.) 4'J. Where creditors agree to accept a composition payable in instal- ments, some of which are guaranteed by a surety, if default is made in the payment of any one instalment, the creditors have a rigbt to sue the debtor, or to prove in his bankruptcy, for the Vjalance of their original debts, after deducting what they have received, either from the debtor or the surety, in respect of the composition and not merely for the amount of the unpaid instalments of the composi- tion: Ex parte Gilbey, In re Bedell, 8 Ch. D. 248. But the surety, though he is entitled to prove in the debtor's bankruptcy for what he has paid in respect of the composition, has no right to put the creditors to an election whether they will carry out the arrange- ment in foto or reject it m toto, lb. Where a person is surety for a limited part of the debt, and has paid that part of the debt, he is entitled to receive the dividend which the principal debtor pays * in respect of [ * 137 ] that sum, and the court will order the payment to the surety of the future dividends on such sum, and will order the creditor to pay to the siu'ety the proportion of any dividend they may have already received: {Ex parte Rushforth, 10 Ves. 409; Paley v. Field, 12 Ves. 435; Ex parte Brook, 2 Rose, 334; Bardivell V. Lydall, 7 Bing. 489; Hobson v. Bass,C) L. K Ch. App. 792; 2 Seton on Decrees, 1183, 4th ed. ; Goodwin v. Gray, 22 "\V. R. (M. R.) 312; Thornton v. M'Keivan, 1 H. & M. 525; 2 Seton on Decrees, llS2, 4th ed. ); and in this respect there is no difference between a bankruptcy and winding-up: Gi^ay v. Seckham, 7 L. R. Ch. App. 680, 684. The rule, however, established in Ex 2^cirte Turner (3 Ves. 243), viz. that in similar cases in bankruptcy the sum paid by the sui'ety is, in calculating the proportion of dividend, to be considered as ex- punged, does not apply to cases in winding-up. See Gray v. Seck- ham, 7 L. R. Ch. App. 680, 685, where the order was made directing the surety to receive the portion of dividend due on the sum paid by him without considering the sum paid by him as having been expunged. A surety for a limited amount of the debt may however agree to waive his right to prove on its payment for the benefit of the cred- itor, and it is now not unusual for contracts of guarantee to be ex- pressly worded so as to show that it was intended to exclude the surety from the right to have a share in the benefit of proof (Mid- land Banking Company \. Chambers, 4 L. R. Ch. App. 398,401; ExjKirte Hope, 3 M. D. & De G. 720; Gee v. Pack, 33 L. J. (Q. B.) 49). But the creditor, although under such circumstances he can prove and receive dividends for the whole amount of the debt, will 203 * 138 BERING V. EARL OF WINCHELSEA. not be entitled to receive more than 20s. in the pound including the sum paid to him by the surety, lb. Where, however, a person is with others a surety for the whole of a debt, with a limit on the amount of his liability, on the bank- ruptcy of the debtor the surety will not be entitled to the benefit of a rateable proportion of the dividends paid on the whole debt, but is bound to pay the creditor the sum due within the limit of his liability. See Ellis v. Emmanuel, 1 Exch. D. 157. There the prin- cipal debtor, and others (seven in all, reckoning each firm a sepa- rate person), as sureties executed a bond to the plaintiffs whereby in substance the eight persons bound themselves, and every two or more and each of them, jointly and severally in the penal sum of 14,000Z. The condition of the bond was, that if the eight parties, or any or either of them, paid the principal sum of 7000Z. by cer- tain instalments at the times specified, the bond should [ * 138 1 * be void and of none effect, otherwise it should remain in full force. And there was a proviso, that four of the sureties (including the defendant Emmanuel) should not, nor should either of them, be liable under or by virtue of the said bond, whether by reason of a joint or a several action or demand, for a sum or sums exceeding altogether in debt or damages 1300Z. Then came a similarly worded proviso, that two others of the sureties should not be made liable for more than lOOl. ; and another proviso that the seventh surety should not be liable for more than 400Z. The aggregate of those four sums of 1300^., two of 700Z., and one of 400Z., being exactly 7000L The principal debtor having paid lOOOZ. part of the debt, then tiled a petition for liquidation, the creditor proved on the bond and received a dividend of 9s. 2d. in the pound on the 6000Z. — viz. 2759Z. 8s. 2d. under the liquidation. After de- ducting from the 7000/. the lOOOZ. and the dividend of 2759Z. 8s. 2d., and a sum paid by one of first four sureties on being sued there remained more than 1300L due. The creditor having brought an action on the bond against Emmanuel, one of the sureties, to re- cover 1300Z., the surety contended that he was entitled to deduct from the 1300Z. a rateable proportion of the dividend, viz. 9s. 2d. in the pound on the 1300Z., and that he was liable only for the bal- ance. It was held by the Court of Appeal, afiirming the judgment of the Court of Exchequer, that the intention of the bond was that the surety should guarantee the whole 7000Z. though his liability was limited to 1300Z., and that he was therefore not entitled to de- duct a rateable proportion of the dividend, but was liable for the whole 1300Z. A question of construction often arises for the decision of the Court, as to whether it was the intention that the surety should merely guarantee parZ of the debt or whether he should guarantee the whole of the debt with a limitation on his liability as surety. It has been recently laid down in an important case, as the result of all the authorities, that where a surety gives a continuing guar- 204 DERING V. EARL OF WTNCIIELSEA. * 139 anteo limited in amount to socnro tho floating balance which may from tiiiui to timo bo duo from tho principal to tho creditor, tho gnararitoo is, as botweoii tlio nuroty and the creditor, to l)e constru- ed (prinid facie at least) as applical)lo to a 2>a/'^ only of tho debt coextensive with the amount of the guarantee, and this upon the ground, at lirst contined to equity, bi^t afterwards extended to law, that it is inequitable to the creditor, who is at liberty to increase the balance or not to increase it, at the expense of the surety: ])pr Blackburn, J., in Ellis v. Emmanuel, 1 Exch. D. 103; * see also Ex part e Jiushforth, 10 Ves. 409; Paley v. Field, [* 130 ] 12 Ves. 435; Banlwell v. Ijijdall, 7 Bing. 481); Raikes \. Todd, 8 A. & E. 840,855; Ex jKirte Holmes, Mont. & Ch. 301, 310; Thornton \. M'Keivan,! H. & M. 525; 32 L. J. (Ch.)09; Gee v. Fack,m L.J. (Q. B.)49; Hobson v. Bass, 6 L. 11. Ch. App. 794; Gray v. Seckham, L. R. Ch. App. 080. It is true that, in Ex x)0.rte Rushivorth, 10 Ves. 400, Lord Eldon attached much weight to a stip- ulation as to the notice; and in Paley v. Field, 12 Ves. 435, Sir William Grant rested his judgment in a great measure upon a pro- viso for indemnity. Subsequent decisions have decided that the result would have been the same had there been no such stipulation. See Ex parte Holmes, Mont. & Ch. 301 ; Gi^ay v. Seckham, 7 L. R. Ch. App. 080. If a creditor, taking a limited security for a floating balance, means it to be a security for the whole of the debt, and not merely for a part, be should take care that this is clearly expressed, for the jjrimci facie construction is the other way, and the court ought not to split hairs or make nice verbal distinctions in the words used. See Hobson \. Bass, L. R. Ch. App. 794; Ellis v. Emmanuel, 1 Exch. D. 108. There is, however, no case which lays down that where the sure- tyship limited in amount is for a debt already ascertained which ex- ceeds that limit, it is ptrimd facie to be construed as a security for part of the debt only; and there does not appear to be any princi- ple on which such aprimdfacie construction ought to be adopted. It is in such a case a question of construction on which the Court is to say whether the intention was to guarantee the whole debt, with a limitation on the liability of the surety, or to guarantee a part of the debt only; per Blackburn, J., in Ellis v. Emmanuel, 1 Exch. D. 109. "Where under the old law a surety paid the debt with interest subsequent to the bankruptcy of the debtor, he could not prove for such subsequent interest; Ex parte Wilson, 1 Rose, 137; Ex parte Houston, Re Boyd, 2 G & J. 50. Whether such subsequent interest could now be proved as a del:)t under Rules 17 and 20 to Schedule of the Bankrupcy Act, 1883 (46 & 47 Vict. c. 52), appears to be doubtful. See Ex parte Sander- son, Re Alexander, 8 De G. Mac. & G. 849. Where several persons are liable each in solido, to a debt, and 205 * 140 BERING V. EARL OF WINCHELSEA. the creditor enforces, as he may do, payment in a manner which as between the debtors is unjust, the Court of Bankruptcy will en- deavor to place them in the same situation between themselves as if the creditor had enforced his rights against them [ * 140 ] *in a manner conformable to their rights against each other so far as it can be done. See Ex parte Stokes, De Gex, 618. There a bond was entered into by a principal and three sureties. The principal and one of the sureties compounded with their creditors, and the other two sureties became bankrupt. The obligee proved the full amount of his debt against the separate estates of the two bankrupts, and claimed under the compositions, and by these means received 20s. in the pound; but the estate of the compounding surety paid more than its contributive share. It was held by Knight-Bruce, V.-C, that that estate was entitled to the benetit of the proof made by the obligee against the bankrupt surety. Where one of two co-debtors under a joint promissory note paid the principal debtor after the bankruptcy of the other, it was held that he was not entitled as a surety under the Act then in force (6 Geo. 4, c. 16, s. 52), or to prove for a moiety of the note against the estate of his co-debtor: Ex parte Porter, 4 D. & C. 774. But he might probably now prove in respect of the payment of the note, by reason of its being an obligation incurred before the date of the receiving order. See Sec. 37, sub-s. 3 of the Bank- ruptcy Act, 1883. [^Doctrine of Contribution Restated. — The principle as between co-sureties, is equality of burden and equality of benefit. The equity of contribution arises when one of several persons who are liable to a common debtor obligation discharges the same for the benefit of all. The surety who has discharged the debt has the right to call upon his co-debtors to pay their proportionate part. At common law no contribution could have been enforced, each surety was liable only for his pro rata proportion,- but in equity the burden is divided between the solvent sureties. Each surety bringing into hotchpot every security which he may hold, and all the sureties are entitled to the benefit derived from the same. The sureties may be bound at different times or by different in- struments yet if they are bound for the same debt contribution can be enforced. The surety is entitled to recover from the principal, the amount of the debt with the interest and costs. A surety who is indemnified by the principal cannot recover for contribution, except so far as that indemnity does not extend: Morrison v. Taylor, 21 Ala. 779; neither can a surety enforce con- tribution if he has neglected to interpose a legal defence, as of the statute of limitations. 206 DERING V. EARL OF WINCHELSEA. * 140 If a person becomes snrety on a supplemental instrument, with the understanding that he is to become liable only on the failure of the principal and his sureties, he cannot be compelled to con- tribute. Neither will contribution be enforced between wrong- doers. • The right of contribution may be asserted through the medium of a bill in equity.] 207 141 FOX V. MACKRETH. [ * 141 ] * FOX w. MACKRETH , PITT ^. MACKRETH. V2t7i May, and 10th, 12t7i, 13t7i, 23rd, 24171, 26t7i JSTov. 1787, a7id 7t7i, 8t7i, and llt7i Dec. 1788, Line. Inn Hall. [the case and arguments are taken from 2 BRO. C. C. 400. THE JUDG- MENT FROM 2 COX, 320.] \_S. C, 4 Bro. P. C, Toml. cd. 258. See Hargreave, Jur. Arg. 453, 526; Reg. Lib. 1788. A. fol. 64.] Purchase by a Trustee for Sale.] — A Trustee for the sale of es- tates for 2yciy'>nsnt of debts, who purchased them himself, by taking an undue advantage of the confidence reposed in him by the set- tlor, and previous to the completion of the contract sold them at a highly advanced x>i'ice, decreed to be a trustee, as to the sum pro- duced by the secoyid sale, for the settlor. This cause came on by appeal from the Rolls. The original bill was filed in June, 1781, by the plaintiff, James Fox, Esq., against Robert Mackreth, John Dawes, and John Baynes Garforth, Esqrs. The supplemental bill was by William Morton Pitt, Esq., and James Farrer, trustees of the estate and effects of James Fox, against the same defendants, to have the benefit of the former suit. The material part of the prayer of the original bill was, that the sale of the plaintiff's estates in the county of Surrey, made to Thomas Page, Esq., might be declared to have been made in trust for the plaintiff, and that Mackreth and Dawes might be declared to be ac- countable to the plaintiff for what the estates were sold for to Page, and also for accounts of what was due to the defendants Mackreth and Dawes, and upon what securities; and that they might be decreed to deliver up the securities, the plaintiff offering that they should be at liberty to retain respectively, out of the purchase-monies 208 FOX V. MACKRETH. * 143 «)f the estates, what should bo found justly duo to them from the * plaintiff, and an. account of monies due to the [ * 142 ] defendants, on account of annuities granted by the plain- tiff to the defendants, the plaintiff offering that the defendants should be at liberty to retain the sum found due out of the said purchase-monies. The circumstances of the case made against the principal defend- ants, Mackreth and Dawes, as taken from the bill, answer, and evi- dence, appear to bo these: — That the plaintiff Fox, being seised in tail of an estate atHorseley and elsewhere, in the county of Surrey, subject to an estate for life, in some parts thereof, to his mother for her jointure in lieu of dower, and likewise seised or possessed of copyhold and leasehold estates in the same county, and also entitled to several other estates in ex- pectancy or for life only, had before he came of age, embarked in a very expensive course of life, and was reduced to great distresses, and, under these circumstances, had procured money by granting annuities, and engaging his friends who were of age, in bonds and judgments for securing the payment of them; and his friends, being acquainted with his situation, proposed, that as soon as might be after he should attain his age of twenty-one years, he should suffer a recovery of the Surrey estate, which, or a competent part thereof, should be conveyed to trustees, to be sold for the payment of his debts, and redeeming the annuities for which he, and his friends on his behalf, had engaged; and he attained his age of twenty-one in the month of August, 1777, and was very soon afterwards (in the latter end of that or the beginning of the next month) introduced to the defendant Mackreth (who usually supplied young men of for- tune with money in their distresses), and, on account of the plain- tiffs inability to make a security by mortgage, as a recovery could not be suffered till Michaelmas Term, it was agreed that the defend- ants Mackreth and Dawes, should supply the plaintiff with the sum of 5100Z., upon the plaintiff's granting two annuities of 500Z. and 350Z. each for his life; that Dawes, on the 23rd of September, ad- vanced the 5100?., for which the following securities were executed: — A bond of that *date by the plaintiffs, in the [ * 143 ] penal sum of 6000?., for securing to the defendant Dawes an annuity of 500?., for the life of the plaintiff; a warrant of attor- ney of even date to confess judgment on the said bond; and an in- denture tripartite, between the plaintiff of the first part, Dawes of 14 WHITE ON EQUITY. 209 * 14i FOX V. MACKRETir. the second part, and Gar forth of the third part, whereby lands in the county of York, of which the plaintiff was seised for life, were con- veyed to Garforth, for securing the payment of the annuity of 500Z. to Dawes. The annuity of SoOl. was secured by a similar bond of the same date, warrant of attorney to confess judgment thereon, and a similar conveyance of the same lands to Garforth, for better secur- ing the same. In the annuity of 500Z., Mackreth, in his answer, admitted he was interested with Dawes, but denied that he was so in that of 350Z. la Michaelmas Term, 1777, a recovery was sufiered of the free- hold pari of the Surrey Estates, by which they were vested (sub- ject to the mother's estate for life in a part thereof) in Oliver Farrer, in trust to convey the same in such manner as the plaintiff should direct, Mr. Farrer having agreed to act as a trustee for the purpose of selling the same and discharging the debts, together with and under the direction of two of the plaintiff's friends (who appear to have been Lord Ligonier and Lord Grantley), if they could be prevailed upon to accept the trust. In December, 1777, the plain- tiff, being threatened with an arrest for the sum of 20007. by the holder of bills of exchange drawn by the plaintiff while at Paris, applied to the defendant Mackreth, who agreed to lend the plain- tiff 3000/. on mortgage of the Surrey estates; upon which mort- gage deeds, dated 22nd and 23rd of this month, were accordingly prepared and executed. At the time of the execution of these deeds, it was proposed that the denfendant Mackreth should be a tnastee with Farrer for payment of the debts and redeeming the annuities, when the defendant Mackreth proposed the defendant Dawes for that purpose, as being, from the course of his business, well acquainted with man} of the persons who had pur- [ * 144 ] chased the plaintiff's other annuities, and could *assist in purchasing them at a cheaper rate than Mr. Farrer; which was assented to by the plaintiff, upon an assurance that noth- ing should be done without Mr. Farrer being consulted and approv- ing thereof. In the same month the plaintiff delivered to the defendant Mackreth a particular or rental of the estate in Surrey, made by Thomas Jackman, by which it appeared that the rents of the houses and cottages on the premises amounted to 283/. Is , and those of the lauds to 979Z. 14s. (subject to the mother's jointure, which was stated at 240Z. a year), and the timber was valued in the rental at 210 FOX V. MACKRETII. * 145 4000/., and the whole was valued at 45,000Z. It was also in evidence, that Mackreth sent down a man of the name of Hampton to view the estate, who was there a week, but what valuation he made, or 'whether the same was communicated to Mackreth, did not appear. A trust deed was prepared by Garforth, reciting the 'mortgage, by which the estates were conveyed to Mackreth and Dawes (subject to Mackreth's mortgage and the annuity to Dawes) in trust to sell or mortgage the same, and to pay the debts and redeem the annu- ities granted by the plaintiff. These deeds being sent to Mr. Farrer, he made some objections thereto, ou account of the sums advanced as the prices of the annuities, not being scheduled as gross sums carrying interest at 5Z. per cent., and also on account of the trus- tees being empowered to sell or mortgage the estates without the intervention of Mr. Fox. And it being afterwards agreed, that Mackreth should pay off Dawes, and advance some further sums, a deed poll was prepared, calculated for execution on the 16th Janu- ary, 1778, and indorsed on the mortgage deed, to secure such fur- ther sum of 7000/., consisting of 5100/., the consideration-money for the annuities granted by the plaintiff to Dawes, with 212/. 10s. interest thereon, for the quarter's arrear due 23rd December, 1777 (but which was not paid by Mackreth to Dawes until the 16th July, 1788), and 51/. 14s. •9Jd., twenty-three days' arrear of the said an- nuities, from 23rd December to said 16th January, and 1635/. 15s. 2|c/. paid to the plaintiff on the *16th January, [ * 145 ] 1778. A new trust deed was also prepared, in which this deed-poll was recited, and the 3000/. and 7000/. made the first charges on the estate. On the 16th January, 1778, the plaintiff Fox and the defendant Mackreth dined together at the houses of the defendant Garforth, foF the purpose of executing these deeds, and after dinner, and before the plaintiff had executed the deeds, a convei;sation arose, in which it was proposed that the defendant Mackreth should become the purchaser of the estate, and Jackman's valuation of 45,000/. was mentioned by the plaintiff as a fair price, which was objected to by Mackreth, considering the value put thereby upon the houses and lands; upon which the defendant made a calculation of the houses at fourteen years' purchase, and the lands at thirty, together with the household furniture, valued at 500/., and the timber at 4,000/. (on which last two articles they agreed), amounting to 37,853/. 14s. The plaintiff afterwards offered to sell the estates to the defendant 211 * 146 , FOX V. MACKRETH. for 42,000?., upon which the defendant said he would split the diff- erence, and give 39,500?. for the same, but would not give more; and the plaintiff not agreeing to accept the terms, the trust deeds were then executed by the plaintiff. After the deeds were executed, the conversation was renewed, and the plaintiff expressing some concern with respect to his mother's jointure, in case he should accept the defendant's terms, the defend- ant offered the 39,500?., and to subject himself to the payment of the plaintiff's mother's jointure, in case she should survive him; upon which the parties agreed, and the defendant Garforth (who had been absent during the greater part of the treaty) was called in, and drew up a memoradum of such agreement, by which the money was to be paid on or before the 25th of March next, till which time the plain- tiff was to receive the rents and profits, and then convey the estate to the defendant Mackreth; and about twelve o'clock at night this memorandum was signed by the plaintiff, upon which the trust deed was cancelled. Oo the 28th of the same mouth, articles for the purchase [ * 146] * were executed by both parties. On the 24th April fol- lowing, the plaintiff, and Anna Fox his mother, on the 2nd of May, executed conveyances of the estates to the defendant, in consideration of 39,500?., 11,097?. of which was retained by the defendant, in payment of the above mortgage of 3000?., the 7000?. secured by the deed-poll, and some other sums charged by the de- fendant, as advanced to the plaintiff; and the defendant gave the plaintiff as a security for the residue (being 28,403?.), a common accountable receipt; and afterwards, on the objection of the plain- tiff to this as the only security for the money, the defendant wrote, on the same piece of paper which contained the accountable receipt, the following charge: — "25th April, 1778. I do hereby charge' all my estates in the county of Surrey with the payment of the above sum of 28,403?. and interest." At the time of signing the above, the defendant had no estates in the county of Surrey but those pur- chased by him of the plaintiff; and the defendant gave to the plain- tiff no other security for the residue of the money than the receipt and charge. In the interval between the execution of the articles and that of the conveyances, Mackreth had treated with Thos. Page, Esq., for the sale of the whole of the said estate; and on the 21st March, Mr. Page agreed to give 50,500?. for the same, but no article was entered 212 FOX V. MACKRETII. * 147 into between him and the defendant till the 30th of April following. Immediately after, Page was lot into possession, and was to receive the rents and profits from Lady-day then last. The treaty with Page was totally unknown to the plaintiff, when he executed the conveyance to the defendant. The plaintiff drew upon the defendant for several sums on account of the purchase money; and in October, 1778, having sent for an account, the defendant drew one out, by which he made a balance remaining in his hands of 773Z. 18s. 9d. ; but admitted in his answer that he had therein charged moneys unpaid as the supposed amount of two annuities and the arrears thereof then unredeemed; and afterwards, in May, 1771), having then settled the * said annuities, he sent the plaintiff another account, in [ * 147] which he made the balance 616?. 17s. above the other balance of 773?. 18s. 9d. In June, 1779, the plaintiff, being again in distress, applied to the defendant, when he advanced him 2100Z. upon an annuity of 350?. a year for plaintiff's life, secured by a bond in the penal sum of 4200?., and warrant of attorney to enter up judgment on the same. Upon discovery of the sale to Page, under the circumstances as stated above, the plaintiff filed his bill (d), insisting that the defend- ant Mackreth, being a trustee for him under the trust-deed for pay- ment of debts, it was his duty to sell the same for the advantage of the plaintiff: and if he purchased for himself (which the plaintiff' was advised he could not) it should be for a fair and adequate consid- eration; that the plaiptiff, having been imposed upon, ought to have the benefit of the sale; and that the sum of 7000?., mentioned in the articles as due to Mackreth, on mortgage, or the part there- of estimated to be due to the defendant as the value of the annui- ties granted to Dawes, was a much greater sum than they were really worth on a fair valuation; that no greater allowance ought to be made out of the purchase- money than the sums really ad- vanced, with interest from the time of advancing the same; that Mackreth had not discharged the annuities granted by the plaintiff', but the plaintiff continued liable to the same; and that at the time he granted the last annuity of 350?., there was money in the de- fendant's hands, or the defendant was accountable to the plaintiff for larger sums, as he then had in his hands the sums for which he (rf) In 1871. 213 * 148 FOX V. MACKRETII. sold the plaintiff's estate, beyond the sum of 39,500Z., and therefore prayed as is before stated. The defendant Mackreth, by his answer, insisted on the fairness of the transaction, and that the price at which he bought the es- tate was an adequate price, though he expected to have some bene- fit by selling it out in parcels; but that the purchaser, Mr. Page, having an estate in the neighbourhood, gave a larger price than it was worth to other persens. He admitted that he had in [ * 148 ] his hands a * balance of 617Z. 13s. of the purchase-money, which he claimed to retain, on account of the plaintiff be- ing only tenant for life in a small part of the estate conveyed to the defendant, and 773Z. 18s. 9d. the balance of the accounts sent to the plaintiff in October, 1778; and the defendant Mackreth further said, that on the 30th of August, 1779, part of the estate being dis- covered to be copyhold, the defendant applied to the plaintiff to execute a letter of attorney, to surrender such copyhold premises to the defendant, which he readily agreed to, and signed such letter of attorney; and that Mr. Page, the purchaser, in November, 1779, having raised a svim of money by mortgage of part of the said es- tates, and afterwards having occasion to raise money by mortgage of other parts of the said estates, and the solicitor for the person advancing the money requiring to have the original deeds of the 22nd and 23rd December, 1777, and the conveyance from the plaintiff to the defendant or duplicates thereof, the defendant applied to the plaintiff to execute other parts of the deeds, which he agreed to, and, together with his mother, executed the same without expressing himself dissatisfied with the purchase made by the defendant (but it was in evidence that Mr. Farrer only consented to the plaintiff's executing the same under a proviso that the same should not be considered as a confirmation), which acts of the plaintiff the de- fendant insisted would operate as confirmations of the transactions. The cause was heard at the Rolls, before his Honor Sir Lloyd Kenyon, the then Master of the Rolls, on the 26th, 27th, and 29th of June, and on the [4th], 13th, 14th, and 26th of July, 1786, on which last day his Honor was pleased to make his decree, whereby he declared that undue advantage was taken by the defendant Mackreth of the confidence reposed in him by the plaintiff Fox, and that therefore the defendant Mackreth ought to be considered as a trustee as to all the estates and interests comprised in the con- veyance of the 23rd and 24th days of April, 1778, for the said 214 FOX V. MACKRETir. * 149 pliiintifF Fox, after t^^o execution of the said deeds; and ordered it to be referred to the * Master to take an account [ * 149 ] of the money received by the defendant Mackroth from Page, and to compute interest thereon at 5/. per cent., from the time of receiving the same, and to take an account of the money paid by defendant Mackreth to Dawes on account of the annuities of 500/. and 300/. ; and also an account of the money advanced by Mackreth on account of the annuity of 850/ in 1779 (QiorQ Lord Hardivicke, Hil., 1740, Floyer had bought of Shen-ard an annuity at six years' purchase, secured upon money in the funds, in the names of trustees. He filed his bill against the trustees to pay the annuity: the objection was, that Sherrard was a man in distress, and that only six years' purchase was given for the annuity. Lord Hardivicke said, this case differed from that of young heirs, because Sir B. Sherrard, the father, was in possession of the estate. A sale of an annuity, not redeemable, was not an usurious trans- [ * 155 ] action; * where they are made redeemable, the Court has thought it an evasion of the law. As to the price of an annuity, it is the most uncertain thing in the world; taking it upon the highest calculation, it is only one year's purchase under the value and the Court will not set it aside on that account. Then as to the security; if he had taken it on the estate, it would have been good. It was done on bond and judgment, without insurance of the life. Every hardship which occurs in this case is such as must occur in every case of the kind. Then this annuity was not re- deemable. Lord Hardwicke's opinion on this subject appears to have been, that a redeemable annuity is usurious {m). [Lord Chancellor. — I do not believe that has ever been decided. It is certainly a ground to suspect a shift; but there is no decided case, that the annuity being redeemable will make the j;ransaction usurious (n).] With respect to consulting Farrer, that was not Mackreth's busi- ness, if Fox did not choose so to do. If it was anybody's business to advise Fox, it was rather Farrer's than Mackreth's. The next {I) Amb. 18. (m) See Floyer v. Sherrard, Amb. 19. \n) It is now fully established that such a transaction is legal. See Irnham V. Child, 1 Bro. C. C. 92; Lord Portmore v. Morris, 2 Bro. C. C. 219, Amb. 244, note (3), Blont's edit. 220 FOX V. MACKRETII. * 150 transaction is, the recovery suffered in Michaelmas, 1777; the legal estate was by it vested in Farrer, to protect it against the annui- tants and creditors. He was mistaken with respect to this matter, for a judgment creditor could have taken out execution against the estate of the cestui que trust, the same as if it was a legal estate. As to the application for the loan of, first 2000/., then 3000Z., what ground is there to quarrel with that? In that transaction Farrer was consulted; he was present at the execution of the mortgage deed, and proves the payment of the money. Two objections are made to it; first, that Mackreth took the legal estate out of Farrer: but Farrer thought it right that Mackreth should have the legal estate. Secondly, the other objection is, that it was part of the system, and having the legal estate would assist them in carrying it into execution; but, if it was wrong, Farrer ought not to have parted with the legal estate; no objection was made to Mackreth's being mortgagee in fee. Again, it is objected *thatMack [ * 156 ] reth did not then turn the annuity into a debt; but Fox wanted the 3000Z. immediately, and it might not occur to Mackreth to turn the annuity into a debt. The next matter is, the transaction with respect to the trust. Mackreth did not propose himself; this was proved by Farrer, who says it was proposed either by himself or Fox. Mackreth says, in his answer, that he did not propose himself; Farrer declined being a trustee; and then Mackreth pro- posed Dawes, as being acquainted with annuity business. Farrer approved of Dawes, and Garforth took his instructions from Farrer. A copy of the particulars was delivered to Mackreth. On the 6th of January, 1778, the draft of the conveyance was sent to Farrer, who returned it on the 7th, with this observation: that it was not as he expected; for the annuities were carried down to the time of the sale, whereas they were to be turned into loans; and that Mack- reth and Dawes were to have the whole authority to sell without any consent of Fox. There had only been a conversation, in which it had been proposed to turn the annuities into a loan. Then as to the sale itself. On the 16th of January, Fox and Mackreth treat on the subject. Macreth ofPered 37,000Z., at last 39,500/., including the furniture, and securing Mrs. Fox (the mother's) jointure. This agreement was put into writing by Garforth; no objection is made to the form of the writing. On the 28th of January, the contract was signed by Fox and Mackreth. The conveyance was laid before Farrer, and executed on the 21th of April; so that it was iucom- 221 * 157 FOX V. MACKRETH. plote from January to April. The objection now taken and relied upon is, that Mackreth was a trustee, and, therefore, could not con- tract for the purchase of the estate; but we deny that he was a trustee; and, even though he were so, he might purchase upon fair terms. They contend, on the other side, that the trust deed was executed, and Mackreth bound not to contract with his cestui que trust. It is true, it was executed by Fox; for during the conversation about the purchase. Fox, not agreeing to sell at the price [ * 157 ] then offered by Mackreth, executed the trust deed, but *con- tinued the conversation relative to the purchase, the trust deed lying all the while upon the table. If the conversation had ceased, the deed would have had effect; as it was, it was a nullity. Then how can it operate as a trust? It was a trust intended, if they will — commenced, but at the same moment put an end to — never acted under, but broke off immediately. But, even supposing him to be a trustee, he might contract for the estate so that he did but deal fairly. We admit that a trustee cannot purchase for his own benefit. If, as a trustee, he had conveyed to a third person as a trustee for himself, that would be void; but there is no case which has decided that the cestui que trust cannot sell to his trus- tee. On the contrary, it was done in the case of Clarke v. Swaile(o) before Lord Northington, where Sir Samuel Clarke, by the advice of Swaile, conveyed the estate in question to him to sell for payment of debts. Swaile endeavored to sell the estate, but could not meet with a purchaser. Swaile afterwards treated for and pur- chased the estate, which was conveyed to him at a fair price, and the money was applied in payment of Sir Samuel Clarke's debts. Another deed was afterwards executed on account of a variance in the description of the estate, and a third, occasioned by a variance of the boundaries. This last was executed by Sir Samuel Clarke and Robert, his brother. Sir Samuel died, and Robert (now Sir Robert) filed his bill, on the ground of a confidence being placed by Sir Samuel in Swaile as his attorney, and that his circumstances were such that he durst not quarrel with him. Lord Northington said, as to the cestui que trust dealing with the trustee, he did not much like it; but, upon the whole, he did not see any principle on which he could set the transaction aside. In the present case there is no species of fraud; it is not even attempted to be stated in the (o) 2 Eden, 134. See also Coles f. Trecothick, 9Ves. 234; Morse v. Koyal, 12 Ves. 355. 222 FOX ?'. MACKRETII. * 159 bill; but thoy argue, that, from tbo case itself, there is an implied fraud; the partion met for veiy different {)urpose; there is no colour to say it was to draw Fox into a sale at an undervalue. In Flayer V. Sherrard Lord Hardivicke relied on there being noy^ro- posal coming *from Floyer. Then as to the argument, [ * 158 ] that Fox was in distress; he was upon the eve of extri- cating himself from any distress he might have been in; he was of age; and there is nothing to prove any weakness of mind, or inca- ]iacity of any kind. He was perfectly competent to act. He askedi 4"), ()()()/., and for that purpose produced Jackman's valuation. Maokreth objected, that it was thirty -live years' purchase for houses and land, which was a monstrous price, and offered fourteen years' purchase for the cottages and thirty for the land, amounting to 37,000/. He afterwards advanced to 39,500/. Fox then insisted on 42,000/. Fox had a particular. It is said Mackreth had a val- uation; but not a word of that is in proof. Farrer not being pres- ent at the final agreement, is the next head of objection. But if Mr. Fox did not choose to have him present, it could not be incum- bent on Mackreth to send for him; besides, the draft of the con- veyance was sent to him; and if the price was not adequate to the value, or there was anything wrong in the contract, Farrer should have objected to it, and have advised Fox not to proceed; on the contrary, it appears by his letter of the 7th of April, 1778, that he approved of the conveyance, except that he objected, in some re- spects, to the mode, and to the money remaining in the hands of Mackreth for payment of Fo'x's debts; but to the purchase itself Farrer never objected. With respect to the money remaining in Mackreth's hands, that does not go to the merits of the case, though the gentlemen on the other side have treated it as a badge of fraud. Mackreth accounted for the application of every shilling of the money, with interest for the time it remained in his hands. "We have no objection to an account being decreed with respect to the application of the money. Then with respect to the confirmations, they are very strong. We do not dispute the principle, that whilst the distress continues subsequent acts shall not be held to be con- firmations. It appearing upon the sale to Page, that part of the estate which had been sold as freehold really was copyhold. Fox, on the 19th of August, 1779, executed a warrant of *at- [ * 159 ] torney to surrender the same. This was not clandestinely, but openly applied for; it was a conveyance of part of the estate 223 * IGO FOX V. MACKRETH. which was not conveyed before. He afterwards executed duplicates of the deeds. The purchasers from Page in parcels wishing to have original deeds, Farrer made no objection, if they would indorse upon the deeds that they were duplicates. \^Lord Qhancellor. — He expressly stipulated that the execution of these deeds should not be a confirmation]. The real cause of the suit is, that Mr. Page has given 50,500?. for the estate. Mr. Fox rested under the sale till 1781, when that • sale was discovered; but an advanced price being afterwards ob- tained is no reason for setting aside a previous fair sale of lands. To assert that it is, would be too much, where there is no fraud. The price of 50,500Z. paid by Page was, in fact, a pretium afPec- tionis; it was 5500Z. more than Jackman had valued it at, or Fox ever thought of getting for it. Having shown, then, that Mackreth was no trustee, and that the separate acts are fair, there can be no fraud in them taken collectively; yet the argument, juncta juvant, is relied on in this case. There is only one case in which that argument has prevailed; indeed, it is only fit to have a. popular effect, not to be used in a court of justice. It only applies to a case made use of in circumstances which all terminate in one point, and which cannot be accounted for any other way. It is said, the cir- cumstances in this case are all linked in one chain — that they all tended to the making an unreasonable purchase; but the other side have not been able to connect them. The treatise for the annui- ties and the purchase are separate and unconnected; therefore it is to be hoped that the arguments used, viz., that although the sepa- rate articles were not sufficient to set aside the transactions, yet that altogether they are sufficient, will meet the same fate here that it did in Parliament in the case alluded to (p), and that this Court will reverse the attainder and restore Mr. Mackreth in blood. Mr. Mansfield .in reply. —It is not to be denied that the [ * 160 ] large price at which the estate has been sold to Mr. *Page is the cause of the present suit. It is that advance of price which affords the strongest evidence of the purchase by Mackreth being fraudulent. Mackreth and Garforih are to many intents one and the same. The decree against Mackreth is, that he shall deliver up all papers which are in his hands. The present case contains fewer contested facts than generally occur in similar matters; and the remedy which lies with. the Court is a very evident (p) The case alluded to is that of Lord Strafford. 224 FOX V. MACKRETH. * 161 one. It has been argued that the Court cannot enforce an absolute, but only a technical morality, I know of no such term as "techni- cal morality" that has ever been applied in this or any other case; but where one person has obtained an unfair advantage over an- other, the province of a Court of equity is to give the latter redress. Lord Coke, in his First Institute, has very shortly defined the office of this Court to extend to cases of "covin, accident, and all deceit for which there is no remedy in a court of law." AVhat, then, is the true question in the present case? The Master of the Rolls lias founded his decree in a confidence reposed by Fox in Maekreth. The question is only as to the inference to be drawn from the facts. In order to make out the confidence reposed by Fox in Mackretb, a few circumstances are to be attended to. Mr. Fox came of age in August, 1777. Very soon after that (in September,, 1777) the con- nexion between him and Maekreth began. The first step was the purchase of two annuities, at six years' purchase; then the loan of 3000Z. on mortgage of the Surrey estate ; then Maekreth engages to become a trustee to sell the estate for payment of debts, apparently with no other intention than to relieve Fox's necessities. On the 16th of January they met to execute the trust d^ed; but the meet- ing terminated in the agreement for the sale of the estate. On the 4th of April there is a conveyance of the estate,, and Fox has nothing to show for the balance of 28,403?. but Mackreth's accountable re- ceipt and charge of the money on the Surrey estate. On the 21st of March Maekreth had sold the estate ro Page for 50,500/. To- wards the close of 1778 he had lent Fox lOOOZ. ; in June, 1779, * there was a treaty fox an annuity, part of the con- [ * 161 ] sideration for which was to be the 1000/. The account made up in 1778 is agreed on all hands to be a false one. In June, 1779, another account was made up. Then Maekreth applied for duplicates of the conveyances, which Fox complied with. These are the material facts, from which it is impossible to doubt that the fullest confidence was reposed by Fox in Maekreth, and that Maek- reth did, on the lOth of January, take an undue advantage of that confidence. Every transaction of that day shows that Maekreth lepresen ted himself as Fox's friend. The account given by Maek- reth, in his answer, relative to the loan of 3000/. and the annuity, is contradicted by the evidence. A full confidence is not to be ex- pected to an answer in general, which is proved false in any par- ticular. Suppose it to be true that the proposal for the sale came 15 WHITE ON EQUITY. 225 * 162 FOX V. MACKRETII. on the 16th of January from Fox, how easy was it for Mackreth to suggest that an immediate sale would be better than entering into a trust deed, and to make the formal proposal come from Fox, though the suggestion was his own ? But be this as it may. no just inference is to be drawn from it to the merits of the cause. Fox entered into the contract with Jackman's valuation in his hand, and at twelve o'clock at night drops his price to 39,000Z. How is this to be accounted for but by his confidence in Mackreth ? If the sale had been fair and open, I should be precluded from these ob- servations; but there never was a contract which was more sus- picious, from the characters of the parties concerned. The coun- sel on the other side have said, that, when they were treating for the sale, the confidence was over, and that they were in a market; but it is impossible a sale could be negotiated under circumstances more private. It is as near the case of a trustee selling to himself as can possibly be; but still it shows what opinion Fox had of Mackreth. It is highly probable that the latter had. the sale in his contemplation when he made the appointment. This is rendered probable by his having a valuation. This observation has [* 162 J received no answer, except that it *was natural, that, in order to sell as a trustee, he should have a valuation; but no notice was given to Fox of that valuation by Hampton. Fox and his agents were kept in the dark as to that survey. Mr. Fox came to Garforth's to meet Mackreth as a friend, where Mack- reth, having in his possession a valuation, and concealing that fact, induced Fox to sell for 5500Z. less than the only valuation he had. If there was nothing more in the case, Mackreth ought not to retain the great advantage he has made. As a friend, Mackreth should have let Fox know he had sold the estate to him for 11,000Z. less than he (Mackreth) had contracted to sell it for to Page. Then Fox parts with the estate on a bare accountable receipt and a charge upon the estate. The money is not deposited in the hands of any banker, and the estate is conveyed to Page without any notice of the charge, which made an end of the charge. This plainly shows that Fox trusted entirely to Mackreth. The settlement of the ac- count is another mark of the most implicit confidence, and the whole transaction as to the loan and the annuity proves the same; but the gentleman on the other side say, that the accumulation of the facts is immaterial, and that the application of juncta juvant ought to have no weight. If it was proved that the transaction of the 16th 226 FOX V. MACKRETIl. * 1G3 of January was perfectly fair, I allow thoir argument would apply; but whilst the groat queRtioa of evidence is with respect to the fair- ness of the transaction of the 10th of January, it is material to show the complexion of the whole transaction taken together, and especially the power Mackreth had over Fox. This has the more weight, because it is incumbent on Mackreth to prove that the trans- action of the 16th of January was fair and honest. To whom is it to be imputed but to him, that there was no witness of the trans- action ? He ought not to have entered into such a treaty with. a young man, without having a witness present. The whole transac- tion speaks the truth of the Master of the Rolls' declaration, that there was a contidence reposed in Mackreth; and it will need very little argument to prove that that confidence *was [ * 103 ] abused. Either Mackerth had a valuation at the time of the treaty, or not. If he had not, he induced Fox to sell at 5500Z. less than his own valuation; if he had, he concealed that circum- stance from Fox, and now conceals it from the Court. Another thing that is urged is, that Fox has confirmed the transaction. If he has confirmed it, I admit it cannot be rescinded; but the first preliminary to a confirmation is, that the party should be previously apprised what it is he confirms. When the present comes to be compared with the confirmations in the cases where they have been held to bind, it is very unlike them; for none of them, except the execution of the duplicates of the conveyances, have the least ten- dency to confirm. They are mere consequential acts. In Chester- field V. Jatissen and Cole v. Gibson there were clear acts of con- firmation. Here they are only carrying the contracts into execu- tion ; and the excution of the duplicates only shows how much Fox was in the power of Macki-eth. It was only done for the jnirpose of getting something which might be called an act of confirmation; and Farrer refused to consent to their execution but with the pro- viso that it should not be considered as a confirmation. If Mack- reth had first informed Fox of the real value of the estate, and then he had affirmed the contract, it would have been final. On the contrary, he w^as in distress in 1779, and absolutely in the hands and power of Mackreth; and so he was at every period Avhen the confirmations were obtained. No one act Avas done with a knowl- edge of the value of the estate. By his own admission, Mackreth cheated Fox out of GOOZ. or 700Z. in his first account. In May, 1781, he sent him another account rectifying the mistake. In the 227 *164 FOX V. MACKRETH. ineanwliile he had lent his money on bond, and bought an annuity of him. If not from friendship, from what principle did Mackreth act, but from the desire to get this estate, or as much as he could out of Fox? It is urged, that this transaction cannot be set aside, because, if it is, no man can purchase at a fair price, and sell at a greater without the fear of having the transaction rescinded. [ * 164 ] But was there everva fair *case where such an advantage was taken as in the present? No man, acting fairly, would deal with a young man without witnesses; no man, acting fairly, would conceal his having a valuation. It is to be hoped such a transaction will never exist again; but no fear can arise to fair transactions from such a transaction as this being overturned. Lord Chancellor Thurlow. — The great and only doubt which I have had from the beginning to the end of this case is, whether the ground upon which I must go, if I affirm this decree, will not by necessary implication extend to many other cases, in which I shall run the hazard of undoing all the common transactions of mankind, and of rendering all their dealings too insecure. I do not agree with those who say, that, wherever such an advantage has been taken in the course of a contract by one party of another, as a man of delicacy would refuse to take, such a contract shall be set aside. Let us pxit this case: — Suppose A., knowing of a mine on the estate of B., and knowing at the same time that B. was ignorant of it, should treat and contract with B. for the purchase of that estate at only half its real value, can a Court of equity set aside this bargain? No; but why is it impossible? Not because the one party is not aware of the unreasonable advantage taken by the other of this knowledge, but because there is no contract existing between them by ivhich the one party is bound to disclose to the other the circum- stances tvhich have come within his knoicledge; for, if it were other- wise, such a principle must extend to every case in which the buyer of an estate happened to have a clearer discernment of its real value than the seller. It is, therefore, not only necessary that great advantage should be taken in such a contract, and that such an advantage should arise from a superiority of skill or information, but it is also necessary to show some obligation binding the party to make such a disclosure. Therefore the question is, not whether this transaction be such as a man of honour would disclaim and disdain, but it must fall within some settled definition of wrong 228 FOX V. MACKRETH. * 1G6 recognized * by this Court; for, otherwise, the general [ * 1G5 ] transactions of mankind would be too much in hazard and uncertainty. In this view, and in this view only, I have entertained considerable doubts on this case. The Master of the Rolls has referred a great variety of accounts, subsisting between the parties, to the Master; and it is not quite a f dir argument to consider this part of the case as altogether decided. If these points are material, the only consequence is, that, as to them, the judgment must bo suspended. In the present appeal I shall consider the case entirely on the trans- action of the 16th of January. I shall also consider certain terms necessary to be found, in analogy to the finding of a jury. First, it is necessary to find the real value to be what Page gave for the es- tate, or much more at least than the price given by Mackreth; for, unless there be great inadequacy of value, the case comes to nothing. The fraud or imposition of the one party affords no ground of relief, unless dama(/e be sustained by the other (q) ; and, on the other hand, it does not follow, though the real value should be found such as now represented on the part of the plaintiff, that it will put an end to the contract, unless such advantage has been obtained by some of those frauds which the policy of this Court has adopted as grounds on which to set contracts aside. The Master of the Rolls has said that Mackreth shall be a trustee, and so he must be taken consequentially; for, if it be true that Mack- reth has cheated Fox in this bargain, he did get the estate at law, but he did not get the estate in equity, and then he is reduced to a trustee. It is only in consequence of his getting the estate by fraud, that he becomes a trustee. Suppose an estate to be of the value of 50,000Z., and Mackreth buys it for 40,000Z., committing great fraud in such purchase, but, from the calaraities of war and other public distresses, landed property as well as stocks sink in value more than one-fifth, and Mackreth then sells the estate for 35,000/. or 30,000Z. only, would it not be true that Mackreth would * be bound to pay the 10,000Z. as a satisfaction for the fraud [ * 16G ] committed by him, although he had not made the money he actually gave for it ? The money would be due, not in conse- quence of what Mackreth afterwards sold it for, but what Fox lost by it at the time. The only consequence, in a Court of equity, is, . . c : {q) This opinion Lord Thurloic changed, for lie refused an inquiry as to the value of the estate. 229 * 167 FOX V. MACKRETH. that what one party lost by the undue advantage taken by the other must be answered to him. The Master of the Rolls went on the fact of the value of the es- tate being that for which it was sold to Page, and thought, that, this being the value, Mackreth had cheated Fox. Taking this for the present to be so, let us go over shortly the facts of the case. Fox beo-an to be distressed about three or four years before he came of age. He engaged other young men with whom he was con- nected, to become securities for him for sums of money he had bor- rowed. He had involved himself in annuities. AYhen he came of ao-e he found himself under this imperfect obligation in point of law, but very strong obligation in point of honour, to relieve those who had pledged their names for him. A plan was formed to sell a part of his estate. His situation as to fortune when he came of age was this: his estate in Surrey was about 1200Z. per annum. Of this he was tenant in tail. He had an estate in Yorkshire of llOOZ. per an- num, of which he was tenant for life. He had also an estate in Ire- land, of which he was tenant for life in possession, of about SOOOi. or 6000Z. per annum. Such was his situation when he came of age. He had resorted to a man of character in his profession, Mr. Farrer, for the purpose of settling this business. The 23rd of August, 1777, came, and no step was taken towards taking any account of his debts and annuities, or negotiating with any of his creditors; yet it is most evident that the best time for settling these matters with his cred- itors was before he came of age. However, he came of age of the 23rd of August: and on the 23rd of September, it seems, the first conversation was had upon this sub- ject. He had then been introduced to Mackreth. At that [ * 167 J time, certainly, there was nothing * confidential in their intercourse, or any close connexion between them; but Fox applied to Mackreth for about 5000Z. Mackreth naturally asked what security he had to offer. Fox thereupon told him his real sit- uation, by which it appeared that Fox had no permanent security to ofi'er till Michaelmas Term, when he could suffer a recovery of the Surrey estate. Mackreth then proposed to him, as the ordinary mode of raising money, to buy an annuity of him at six years' purchase, which is, in truth, about half the real value; and, therefore, whoever proposes to deal with another upon this sort of terms, quits at once all idea of delicacy or generosity or propriety of conduct. It is such as cannot be endured out of a Court of justice; and, if a court does 230 FOX V. MACKRETU. * 168 affirm Buch transactions, it cannot be the Loart of a judge which affirms it, but it must be done from a fear of laying down such rules as may tend to make the general transactions of mankind too inse- cure. There were other modes which might have occurred to a man of different feelings. A contract to make a mortgage when the Term came would have been an effective lien on the estate; and then it would only have been necessary to have insured Fox's life to the end of Michaelmas Term. This would have been the just and honourable way of relieving him. On the other hand, it is observable, that, though Mackreth adopted the other mode of raising the money, it was done in the usual course of his business; for, by profession, he dealt in the distresses of mankind. What he did, he did in his way and business of an annuity monger. I make neither better nor worse of his conduct than that of a common and professed annuity- monger. In November the recovery was suffered. Still nothing was done by Fox's friends towards relieving him from the annuities, which were eating him up. On the '24th of December Fox sends word that he was in great distress, in confinement, and wanted money immediately. Mackreth came to him and lent him money on com- mon terms and took a mortgage for it. A judge cannot impute anything to this part of the transaction, either one way or * another. There was no generosity on one side, nor any [ * 168] plot of circumvention on the other. It would be a most extravagant conjecture to suppose that by this Mackreth had in view to get the legal estate in himself. When one once gets beyond the natural result of facts, there is no end to conjecture or its con- sequences. This was the situation on the 24th. Mackreth was made acquainted with the plan of the trust deed, and it is certain that he industriously recommended himself and Dawes as trustees for this purpose. It has been said, that Mackreth's forcing himself into the trust was improper, and done for some bad motive; and that taking the business out of the hands of Mr. Farrer was calculated to give Fox a bad impression of him. I do not ao-ree to this. In whose room were Mackreth and Dawes to be substi- tuted? The two first were Lord Grantley and Lord Ligonier, who were put in only because they were lords, I believe; for it was not very probable that they should be active or attentive in executino- such a trust as this. As to Mr. Farrer himself, it is only to be said that he had, in fact, done nothing in the affairs, nor taken any step 231 * 1G9 FOX V. MACKRETH. towards it. I therefore really believe that Mackreth meant what he said upon that occasion; and, when he proposed himself and Dawes as trustees, he meant to transact the business to the best advantage. In doing this he undertook a very delicate trust: first, he was to make the most of the estate ; then to deal with the several annuitants. This put him into very awkard circumstances, himself and Dawes being both considerable annuitants; and, therefore, when he under- took to deal with annuitants at large, he undertook a very nice charge, and it was incumbent on him to see with very great atten- tion that he did not show more favour to the annuitants than he ought to do. I certainly do not approve of Mackreth's conduct, when, after having recommended himself as a trustee for these purposes, he allowed the several annuities to stand as far as they had then gone, redeeming them only from that time. However, in fact, [ * 169] he bought the annuities * on behalf of Fox, though with his own money ; but instead of considering them as discharg- ed on the 24th of December, when he bought, them he considered them as bought for his own use, and treated them as existing annuities. Here, therefore, he has gone beyond the line of delicacy; for this is a transaction that a Court of equity will never permit to stand. Here the Court will say he took an undue advantage of his situation. Yet it seems as if he thought this a fair mode of dealing in this sort of market. In another instance he charged Fox more than he actually gave for the redemption of an annuity; and this part of the transaction must of necessity be rescinded, as Mackreth has acted unfairly in it; and Fox has the advantage of finding that Mackreth, after bav- ins recommended himself as a trustee, and undertaken to act faith- fully for his cestui que trust, has yet been dealing unfairly in this very article. On the 16th of January it is allowed that Mackreth was a trus- tee of Fox, and whatever consequences arise from this character must belong to him. Considering him, therefore, as a trustee, see what he has done ! First, he sent down a surveyor to the estate; but he has so managed this part of the case as to prevent the Court from seeing much into it. The Court will act temperately in its conjectures on this, but at the same time will impute all that it fairly can in point of suspicion. On one side it is said that Hamp- ton was sent down to survey the estate with a view of enabling 232 FOX V. MACKRETII. * 170 Mackreth to make the greatest advantage of it for bis private bene- fit; but I do not think ho. I think it ought to be taken that he had the estate surveyed as a trustee, in order that, in that character, he might know the real value of it, and thereby be better qualified to sell it to advantage. This, then, I consider as a part execution of his trust. But then Hampton's knowledge ought to be Fox's knowledge; and upon this arises a question which I think material — whether a trustee, gaining knowledge of the subject in the execution of his trust and at the expense of the * cestui [ * 170 ] que trust (for I suppose the expenses incurred by the trustees must fall xiltimately on Fox), and that knowledge conse- quently belonging to the cestui que trust, whether a trustee may not in this respect have the hand of justice laid upon him, if this knowl- edge is made use of by him to circumvent his cestui que trust, so as to afford a distinct ground of fraud in a Court of equity? I am rather at a loss to find what the evidence affords to this point. It appears, however, that Hampton stayed on the estate till the 17th of January. In these circumstances Mackreth began to deal with Fox, remain- ing in his character of a trustee. Fox had a valuation of the es- tate made by Jackman, which, though not very full or particular, yet afforded the general terms for a treaty and agreement; and it went generally to show that the estate was capable of being im- proved about lOOZ. per annum. On this valuation, lying in medio, one party says the estate is worth 47,000Z. Mackreth reasons on this survey, and says, first, that the houses are valued too high; secondly, that thirty-two years' purchase for the land is too much; next, that forty years' purctiase for the lord's rent is out of all sight. Thus running down the valuation made by Jackman, he argued down Fox either from conviction or a sense of his distress, not in- deed so low as 36,000^., which Mackreth first proposed, but to a medium price of 39,500Z. The first question to be asked is, zvhether the character of a trustee shall vary the consequence of this transaction from tvhat it icould be in the case of a stranger f for it has not been argued, I think, that, in the case of a stranger, this bargain could be rescinded. Now, to what conclusion does thecharacter of trustee go in this case? If a trustee, though stricthj honest, buys an estate himself and. then sells it for more, yet, according to the rules of a Court of equity, from general policy and not from any peculiar imputation of fraud, a Zoo * 172 FOX V. MACKRETU. trustee shall not be permitted to sell to himself, but shall remain a trustee to all intents a7id purposes. It is not, therefore, in that view that Mackreth, being called a trustee, can operate. It [ * 171 ] * does not rest on the name of a trustee, or on the legal or equitable relation of trustee, but on the familiar inter- course between him and Fox. Now, can I, putting myself in the place of a juryman, pronounce that Fox agreed to the price, trust- ing that Macfa^eth knew the price and represented it fairly to himf If k. says to B., I know the value of the subject, and if you will trust me, I will fairly tell you what it is worth, and A. at the same time knows the value to be double what he represents it to be, this is such an abuse of confidence as shall be relieved against, not be- cause A. is a trustee, but because he stipulated with B. to tell him fairly the value, and he broke that stipulation; and then, to be sure, it makes full as strong a case as that of a trustee. But was this the express or tacit understanding of the parties here? I have no materials to affirm this fact upon; at least I am considerably in doubt how to find any evidence of this, where one party asserts one sum to be the value of the estate, and the other another, and both try to make the best of the bargain. At the same time there are such circumstances respecting the manner in which Mackreth under- took the trust, as make me hesitate. All this makes the question of the real value of the estate extremely material (j-)- I do not think it could have been sold at the time according to the rate of Jackman's valuation; and Mackreth's observations upon this seem to me to be well founded. No evidence has been adduced to show his valuation to be correct. Now, see what follows on the 16th of January. Garforth was called up and desired to put their agreement into writing. I do not see why it is necessary that this memorandum should be signed by both parties. I at first thought it showed an eagerness to get the bargain made; but it seems it was agreed that more regular ar- ticles should be executed afterwards. The execution of these articles carried the transaction one step farther in pcint of form. Still, however, the conveyance was not executed. It is asked, whether any man of honour would let Fox execute the [ * 172 ] deeds, after he had actually sold the estate for * a much larger price? Many men, perhaps, would do it; but I (r) Not for the purpose of the decision in a case between a trustee and his cestui que trust. See 8 Ves. 353; 9 Ves. 247. 234 FOX V. MACKRETII. * 173 should never allow it to be the transaction of an honest man. Mack- reth had forced himself into the confidonce of Fox and was called upon, by every tie of honour and honesty, to consider himself as a trustee; but my doubt is, whether this is not too general a line to lay down in a Court of justice. As to the manner of Mackreth's paying Fox the purchase-money, it has been much observed upon; but I do not see much in it. He had not the money by him, which may readily be supposed, but ha gave an accountable note, with hi. per cent, interest; and, to be sure, his note was just as good as a bond — very little danger of los- ing the money from a man of Mackreth's fortune; besides, it was a sort of lien on the estate. The manner in Avhich the accounts are made u{) by Mackreth is objected to, and it is said that this shows a confidence reposed in Mackreth by Fox. So it does; but the ques- tion is whether this confidence is ad idem — whether it shows a con- fidence on the part of Fox, that Mackreth would tell him the ti^e value of the estate f It is then said, that he was called upon to do several subsequent acts; but these are to bo so naturally accounted for by other circum- stances, that I do not see how fraud can be inferred from these. They are then spoken of as instances in which Fox has confirmed the original purchase. As to confirmation, it has been considered by the Court in very different ways. In Loixl Chesterfield v. Janssen, the Court did not go on confirmation as it is usually understood: but on this, that Mr. Spencer, with his eyes open, and after the death of the Duchess, and when his situation was totally changed, thought proper to confirm the former bargain. So, the judges as- sistant relied on this principally, and did not give much opinion on the former part of the case. I wish they had gone further; for, as to the confirmation, he stood at that time under the former bonds. Another way in which confirmation operates is, by showing that the party then thinks himself to have been fairly dealt with. * This occurs in the present case on the 28th of r*lT3] January. Again, on the 25th of April, Fox did not see he had had any advantage taken of him. The use that I think is to be made of such confirmations is, as a proof that the party has seen no ocpasion to complain. In this view the present case is still stronger, for no complaint was made of this transaction till 1781 ; and, therefore, it is fair to infer that so notorious a dispro- portion of price as is now insisted upon was not within the suspic- 235 * 174 FOX V. MACKRETH. ion of those who dealt for Mr. Fox; and it certainly would have been better if this suit had been brought earlier, for when are the afPairs of mankind to be at rest? Nay, more than this, it is evi- dent, and indeed not denied by the plaintiff's counsel, that the transaction never would have been impeached if Page had not given so large a price for the estate. This very much shakes my idea of the real value (s) of it. If this estate, situated near Lon- don, had really been sold at a great under- value, the friends of Mr. Fox must have known it by other means. Supposing the transac- tion with Page to be purely accidental and not springing out of the actual value, it never can affect this question. At the same time it is observable that Mackreth has produced no evidence of the value of the estate, to show that it is not worth more than what he gave Fox. I have been desirous of stating my thoughts on this case, that the gentlemen concerned may be apprised of them, as it will very possibly be necessary to have this matter discussed further, even before me. I have conversed with the Master of the Kolls and the judges, with a wish to find some rule of evidence on which I can go in this case, without running the hazard of shaking too much the contracts of mankind it is of very little consequence to the pub- lic to lay down definite rules of law, if you have indefinite rules of evidence. I shall therefore at present only direct an inquiry into the real value of this estate; and if upon that inquiry the value should turn out to bear a considerable disproportion to what Mack- reth gave for it, I shall probably require some assistance [ * 174 ] in laying down such rules of decision * as will set men at ease as to the disposition of their property. His Lordship, however, did not direct any such inquiry, but after a' lapse of considerable time affirmed the decree, saying only that he had considered the case very much, and that he could not see that his Honor's decree was wrong. The defendant afterwards petitioned his Lordship for a rehearing of the appeal, but that petition was dismissed. See 2 Cox, 158. He then appealed to the House of Lords, assigning the reasons set forth in 2 Cox, 330; but, on the 14th of March, 1791, the appeal was dismissed with costs. Id. 339; 4 Bro. P. C. 258, Toml. ed. (s) The value, as before observed, was immaterial. 236 FOX V. MACKRETIT. * 175 The well-known and thorouglily discussod case of Fox v. Mack- ret h is usually referred to as having established the rule ever since recognised and acted on by Courts of equity, viz., that a purchase by a trustee for sale from his cestui que trust, although he may have given an adequate price, and gained no advantage, shall be set aside at the option of the cestui que trust, unless the connec- tion between them most satisfactorily appears to have been dis- solved, and unless all knowledge of the value of the property ac- quired by the trustee has been communicated to his cestui que tiust. [In many cases it has been held that a trustee cannot pur- chase the trust property even at judicial sale brought about by a third party and which the trustee has taken no part in procuring: Ogden r. Larrabel, 57 111. 389; Chandlers. Moneton, 33 Vt. 245; Jamison v. Glascock, 29 Mo. 191; Martin v. Wynkoop, 12 Ind. 266. There are several decisions on this" point which are the other way. Mercer v. Sarber, W. & S. 18; Huger v. Huger, 9 Rich. Eq. 217; Chorpenuing's Appeal, 8 Casey, 315; Huger v. Id., 9 Rich. Eq. 217; Mercer r. Newson, 23 Ga. 151.] "It is founded," observes Lord Eldon, "upon this: that though you may see in a particular case that the trustee has not made advantage, it is utterly impossible to examine, upon satisfactory evidence, in the power of the Court (by which I mean in the power of the parties), in ninety-nine cases out of a hundred, whether he has made an advantage or not. Suppose a trustee buys any estate, and, by the knowledge acquired in that character, discovers a valuable coal-mine under it, and, locking that up in his own breast, enters into a contract with the cestui que trust; if he chooses to deny it, how can the Court try that against that deuial? The probability is, that a trustee who has once con- ceived such a purpose will never disclose it, and the cestui que trust will be effectually defrauded:" Ex parte Lacey, 6 Ves. 627. [It is possible for the trustee to enter into a contract with the ces- tui que trust, but such a contract will be scrutinized with great severity by the court: Jones v. Smith, 33 Miss. 215; Smith v. Isaac, 12 Mo. 106; Dunlap u. Mitchell, 10 Ohio, 17; Ames z;. Down- ing, 1 Bradf. 321; Stewart v. Kistam, 2 Barb. 493; Harrington v. Brown, 5 Pick. 519.] Lord Thurloiv, indeed, in Fox v. Mackreth, when he dissolved the inJTinction granted by the Master of the Rolls (see ante, p. 152), and in his judgment, intimated an opinion that it was extremely material to ascertain the value of the estate purchased by Mackreth from Fox, his cestui que trust, and proposed to direct * an inquiry for that purpose. Ultimately, however, he [ * 175 ] did not direct any such inquiry, and he afterwards admit- ted that he was wrong in dissolving the injunction. Fox v. Mack- reth, therefore, was decided, not upon the ground that Mackreth had purchased the estate at an undervalue, but that he had purchased it from his cestui que trust while the relation of trustee and cestui que trust continued to subsist between them, and without having 237 * 176 FOX V. MACKRETII. commuaieated to Fox the knowledge of the value of the estate which he had acquired as trustee; for if the relation of trustee and cestui que trust had been clearly dissolved, and Mackreth had made Fox fully acquainted with the knowledge which he had acquired of the value of the estate, the purchase would not have been set aside. " In the case of F'ox v. Mackreth,'''' says Lord Eldon, " so much re- ferred to, and now become a leading authority, in which I have now Lord Thurloi&s own authority for saying he went upon a clear mis- take in dissolving the injunction; it was never contended that i£ Fox, in a transaction clear of suspicion (but which must be looked at with the most attentive jealousy), had discharged Mackreth from the office of trustee, he would not have been able to hold the pur- chase. Why ? Because, being no longer a trustee, he was not un- der an obligation not to purchase. Bat we contended, that it was not in the power of Fox to dismiss him; that the trust was accept- ed- under an expi'ess undertaking to the friends of Fox, that the trustee should not be dismissed without their privity; that Fox himself had too much imbecility of mind as to these transactions: and we contended, that between the date of Mackreth's taking upon himself the character of trustee, and purchasing, he had acquired a knowledge of the value of the estate, by sending down a surveyor at the expense of the cestui que trust, which was not communicated to the cestui que trust even at the moment of the supposed disso- lution of the relation between them; and, under these circumstan- ces, we contended that Mackreth remained a trustee. This was the principle upon which the cause was decided. Either that cause ought to have been decided in favour of Mackreth, or this Court orig- inally, and the House of Lords finally, were right in refusing an issue to try whether the estate was of the value Mackreth gave, or of a greater value at that time. Upon this principle, that was an immaterial fact: for, if the original transaction was right, it was of no consequence at what price he sold it afterwards; if the original transaction was wrong. Mackreth not having discharged himself from the character of trustee, if an advantage was gained by the most fortuitous circumstances, still it was gained for the [ * 176 ] benefit of the cestui que * trust, not of the trustee:" Ex parte Lacey, 6 Ves. C27. See also Ex parte Bennett, 10 Ves. 394. It has, indeed, been asserted that in Whichcote v. Laurence, 3 Yes. '750, Lord Rosslyn considered, that, in order to set aside a purchase by a trustee, it is necessary to prove that an advantage has been gained by him. [A trustee or any other person standing in a fidu- ciary relation cannot buy up a claim or encumbrance to which the trust estate is liable at less than is actually due thereon and then collect the full amount from the trust estate: Parshall's Appeal, 15 P. F. Smith, 235; Schoonmaker v. Van Wyck, 31 Barb. 457; Green t;. Winter, 1 John. Ch. 27.] His Lordship, however, merely said, that he did not recollect any case in which the mere abstract 238 FOX V. MACKKETII. * i H rule camo distinctly to bo triod, abstracted from tlio considoration of advantage mado by the j)urchaser, and that it would bo ditlicult for Kucli a case to occur: for iinless an advantage was made, tbo act of purchasing wenild never bo questioned: and Lord EldoniW^- avow(Hl such an interpretation of Lord Rosslipvs doctrine: Ex parte Lacc.y, G Ves. 627. See also Ex x>arte Bennett, iO Yes. 385; lian- (lall \. Errington, 10 Ves. 423; Kilbee v. Sneyd, 2 Moll. 18G; Ex parte Badcock, 1 Mont. & Mac. 289; the important case of Hamilton V. Wriijlit, y C. & V. Ill, 128, 124, 125. And it is now clearly clearly established that where a trustee for sale has purchased for himself, it is quite unnecessary for the ces- tui que trust to show unfairness in the transaction or inadequacy of price, for without doing so he is at liberty tu set aside the sale. Ex parte Laceij, 6 Ves. 625; Ex j^ctrte Bennett, 10 Ves. 3U8; Gil)- son V. Jeyes, 6 Ves. 277. [A very slight advantage to the trustee or showing of his bad faith is sufficient for setting the sale aside: Herbert i\ Hanrick, 16 Ala. 581; Buell v. Buckingham, 1613.284; Hannah r. Carrington, 18 Ark. 85.] And this is the case, wha^^ever may be the nature of the property, real or personal [Killick v. Elex- nei/, 4 Bro. C. C. 161; Hall v. Hallet, 1 Cox, 134; Pike v. Vigors, 2 Dru. & Walsh, 262; Price v. Byrne, cited 5 Ves. 681); in posses- sion or reversion: Re Bloye''s Trust, 1 Mac. & G. 488, 492, 495; Spring v. Pride, 4 De G. J. & Sm. 395. Nor can a third person purchase for him, even at an auction: Campbell v. Walker, 5 Ves. 678; S. C, Sanderson v. Walker, 13 Ves. 601; Randall v. Errington, 10 Ves. 423; Watson v. Toone, 6 Madd. 153; Baker v. Carter, 1 Y. & C. Exch. Ca. 250, Lord Hardwicke v. Vernon, 4 Ves. 411; Ingle v. Richards, 28 Beav. 361. And a purchase by him from co-trustees is equally objectionable: Hall v. Noyes, cited 3 Ves. 748; S. C, 3 Bro. C. C. 483; Whichcote v. LaiLi'ence, 3 Ves. 940. Nor will a purchase by the trustees at a public auction be sus- tained; for if persons who are trustees to sell an estate are there professedly as bidders to buy, that is a discouragement to others to bid. The persons present, seeing the sellers there to bid for the estate to or above its value, do not like to enter into that competi- tion: Ex parte Lacey, 6 Ves. 629; Ex parte James, 8 Ves. 348; Whichcote v. Laicrence, 3 Ves. 740; Attorney -General \. Lord Dud- ley. Coop. 146. Nor can the trustee purchase under a decree for sale. See Price V. Byrne, cited 5 Ves. 681; * Caryv. Cary, 2 S. & L. [ * 177 J 173: but see Wren v. Kirton, 8 Ves. 502. Nor can the trustee pui'chase from the assignees of his cestui que trust in bankruptcy under an agreement to divide the profits, more especially if the purchase money consists of part of the trust funds; Vanghton v. Noble, 30 Beav. 34. Nor can the trustee pur- chase as agent for another person; Ex parte Bennett, 10 Ves. 381, 400; Gregory v. Gregory, Coop. 204. Upon the same principle, a receiver (Eyre v. McDonnell, 15 Ir. 230 * 178 POX V. MACKRETH. Ch. Rep. 534; Boddington v. Lang ford, lb. 358) or an agent em- ployed by a trustee {Whitconib v. Mincliin, 5 Madd. 91) in manag- ing a sale cannot purchase. See also In re Bloye's Trust, 1 Mac. & G. 488, 495. So it has been held that a sub-agent employed to sell a ship at a minimum price, purchasing for himself at that price and reselling Avithout the knowledge of his principal for a larger sum, must ac- count for the profit made thereby {DeBussche v. Alt, 8 Ch. D. 287): and a custom in certain ports for an agent for sale with a minimum limit himself to take at that limit, and at his own option the thing he is employed to sell is invalid. lb. AYhere, however, a trustee has fairly sold an estate, a subsequent bona fide purchase of the estate from the purchaser is unobjection- able; Baker v. Peck, 9 W. R. (L. C. & L. J.), 472, reversing the decision of Sir J. Stuart, V.-C, lb., 186; and see Dover v. Buck, 5 GifP. 57. A trustee cannot take a lease from himself : Attorney -General v. Earl of Clarendon, 17 Ves. 500; Ex parte Hughes, 6 Ves. 617. [A trustee cannot renew a release for his personal benefit: King v. Cushman, 41 111. 31; Frank's Appeal, 9 P. F. Smith, 190; Mathews V. Dragaud, 3 Dess. 25.] And with so great jealousy does the Court look upon a trustee becoming a lessee of the trust property, that even in a case where a testator had given a trustee power to become lessee, he was removed, principally upon the ground that he was placed in a position in which his interest necessarily came in con- flict with his duty: Passingham v. Sherborne, 9 Beav. 424. Governors and trustees of a charity cannot grant a lease to, or in trust for, one of themselves {Attorney Generalx. Dixie, 13 Ves. 519, 534; Attorney -General v. Earl of Clarendon, 17 Ves. 491, 500), nor insert in a lease any stipulation or covenant for their own pri- vate advantage: Attorney -General v. Mayor of Stamford, 2 Swans. 592, 593; Attorney- General v. The Corj)oration of Plymotdh, 9 Beav. 67. The same rule applies to a member of a corporation taking a lease of the corporate property: Attorney - General \. Cor- poration of Cashel, 3 Dru. & W. 294. But although a trustee cannot purchase from himself, he can pur- chase from a cestui que trust, who is sui juris, after he [ * 178 ] has been ^discharged from the obligation which attached upon him as trustee. [Pratt v. Thornton, 28 Me. 355; Wormley v. Wormley, 8 Wheaton, 421.] This discharge may be effected in two ways: First, a trustee may qualify himself to become a purchaser of the trust property by ac- tually ceasing to be a trustee, and thereby discharging himself (Downes v. Grazebrook, 3 Mer. 208), but he will not be allowed to purchase if he continue to act as trustee up to the point of the sale, getting during that period all the information that may be useful to him, and taking advantage thereof while purchasing the property. Ex parte Jarnes, 8 Ves. 352; Sprivg v. Pride, 4 Do G. J. & Sm. 345. 240 FOX V. MACKRETII. * 170 Secondly, a trustee, while still nominally retaininj^j hiHofficp, may in effect enter into a new contract, under whicli be. may deal with his cestui que trust; but the relations must he ho far dissolved, that they must be put at arm's-length, so that they agree to take respec- tively the characters of purchaser and vendor (Ex parte Lacey, 6 Ves. 620, 027; Gibson v. Jeyes, lb. 211; Morse v. Roi/al, 12 Ves. 373), the cestui que trust distinctly understanding that he is selling to the trustee {Randall v. Errington, 10 Ves. 427), the trustee taking no advantage of his situation to acquire a beneficial bargain for himself (ib.), and giving to the cestui quo trust all material in- formation which ho had acquired as trustee: Coles v. Trecothick, 9 Ves. 247; Gibson v. Jeyes, Ves. 277. But even then the transaction must, according to the rules of the Court, be watched with inlinito and most guarded jealousy; and for this reason, that the law supposes the trustee to have acquired all the knowledge which may bo very useful to him, but the cornmiini- cation of which to the cestui que trust the Court can never be sure he has made, when entering into the new contract by which he is discharged; Exjmrte Lacey, 6 Ves. 626. [If on careful examina- tion it plainly appears that the transaction is favorable to the cestui que trust, and that there is no fraud or concealment of facts material to the transaction, and that a strict examination can discern no fault in the trustee in the management of the trust sale, the trustee may hold even though he purchases at his own sale: Johnson v. Ben- nett, 39 Barb. 237; Rice v. Cleghorn 21 Ind. 80; Pratt v. Thorn- ton 28 Me. 355; Lyon v. Lyon, 8 Ired. Eq. 201; Dunn v. Dunn 42, N. J. Eq. 431; Brown v. Cowell, 116 Mass. 465 ; McCartney v. Calhoun, 17 Ala. 301: Jennison v. Hapgood, 7 Pick. l.J So, in the principal case, it was fully admitted that Mackreth might have dealt with Fox for the purchase of the trust estate, had he done so with- out taking an undue advantage of his position as trustee, and the knowledge he had acquired in that character. From the strictness with which the Court views such transactions, few sales between trustees and cestui que trusts have been sup- ported. In the leading case, however, of Coles v. Trecothick, 9 Ves. 234, a purchase by one of two trustees under a trust to sell for pay- ment of debts, of the trust property, as agent of his father, both of whom were creditors and in partnership, was sustained, upon the ground that the trustees did not appear to have interfered in the business up to the sale, otherwise than that they sanctioned the acts of the cestui que trust, and that the cestui que trust * had full information, and the sole management of the [ * 179] sale, making surveys settling the particulars, and fixing the prices of the lots, and specific performance of the agreement to purchase was decreed by Lord Eldon in favour of the trustee for sale. "As to the objection," observed his Lordship, "to a ])urchase by the trustee, the answer is, that a trustee may biiy from the cestui que trust, provided there is a distinct and clear contract, ascer- 16 WHITE ox EQUITY. 241 * 180 FOX V. MACKRETH. tained to be siich after a jealous and scrupulous examlnption of all the circuaistances, that the cestui que trust intended the trustee should buy; and there is no fraud, no concealment, nc advantage taken by the trustee, of information acquired by him iij the char- acter of trustee. I admit it is a difficult case to make out, wher- ever it is contended that the exception prevails. The principle was clearly recognized in Fox v. Mackreth, and was established long be- fore. The principle upon which I ever held that case right stands upon this only : not that Mackreth might not have purchased from Fox, and would, not have been entitled to the increase; but that he had not been placed in circumstances to make that contract." See also Morse v. Royal, 12 Ves. 355, and Clarkey. Siuaile, 2 Eden, 134, in both which cases purchases by trustees were, though with some reluctance, sustained; and see the remarks of "Sir J. Romillij, M. R., in Denton v. Donner, 23 Beav. 285; see also In re M'Kenna's Esfate, 13 Ir. Ch. Rep. 239; Beale v. Billing, Id. 250; Luff v. Lord, 34 Beav. 220; Franks v. Bollans, 3 L. R. Ch. App. 717. In a recent case (where, it will be observed, the suit was a friendly one), a piirchase by the trustees of a settlement, from the surviving trustee for the sale of property under a will was sustained, although the trustee tmder the will was beneficially interested, both under the settlement and will, and being a solicitor, acted in the conduct of the purchase {hui uMh perfect %)ropriety) for the trustees, who took no active part therein. See Hickleij v. Hickley, 2 Ch. D. 190. A solicitor, however, of the cestui que trusts has no general au- thority to consent to a purchase by the trustee: Downes v. Gi'aze- brook, 3 Mer. 209. It seems that when all thecestuis que trust are sui juris they might consent to a trustee bidding at a sale. Ex parte James, 8 Ves 352. [A cestui que trust may so acquiesce in and confirm a sale as to estop himself from objecting to it: Mitlford v. Minch, 3 Stock. Ch. 16 ; Hallman's Est., 13 Phila. 562. If a cestui que trust ratifies the sale it cannot be set aside by a stranger: Boerum v. Schenck, 41 N. Y. 182; Johnson v. Bennett, 39 Barb. 237; Jackson v. Van Dalbsen, 5 Johns. Ch. 43.] The Court however will not ordinarily give a trustee leave to bid, because he must almost necessarily, from his position, have acquir- ed much information relative to the property, and the Court could feel no security that he would do his duty and communicate this information so as to raise the price, if he had a prospect [*180] of becoming the purchaser: * Tennant v. Trenchard, 4 L. R. Ch. App. 547. The rule is, that if those who are interested in the estate, insist that a trustee ought not to be allowed to bid, the Court will give so much weight to their wishes as to say that until all other ways of selling have failed, he shall not be allowed to buy: per Lord Hath- erley, C, in Tennant v, Trenchard, 4 L. R. Ch, App. 547. [If the cestui que trust objects, the trustee cannot purchase: Chorijenning's 242 FOX V. MACKRETII. * 181 Appeal, 32 Pa. St. 315, and sncb apurohaso can bo questioned only by the cestui que trust: Newcomb v. Brooks, 10 W. Va. 32; Larco V. Casanenava, 30 Cal. 560.] But if the Court is satistied that no purchaser at an adequate price can be found, then it is not impossible that the plaintiff may be allowed to make ])roposalH and to become the purchaser: lb. A merely nominal trustee, as for instance a trustee who has dis- claimed, without ever acting in the trust, may become a purchaser (Stacey v. Elj^h, 1 My. & K. 195; Chambers v. Waters, 3 Sim. 42), as may also a mere trustee to preserve contingent remainders [Paries V. White, 11 Ves. 209, 220; Sutton v. Jones, 15 Ves. 587; Naylor V. Winch, 1 S. & S. 567); or a person who is a bare trustee in fee for another in fee, without any duties to perform (Pooley v. Qiiilter, 4 Drew. 189; Denton v. Donner, 23 Beav. 280, 290). The mere fact, however, that a receiver has been appointed will not reduce a trustee with duties to perform into the position of a mere nominal trustee: Tennant v. Trenchard, 4 L. R. Ch. App. 537, 54(). Under the statutes for the redemption of the land tax, the Lords Commissioners are placed in the position of vendors; and therefore, if trustees should purchase the property of the trust under those acts, as they would not be purchasing from themselves biit from the Lords Commissioners, the transaction would be valid: Beaden v. King, 9 Hare, 499. But see and consider Grover v. Hugel, 3 Russ. 428; Whidborne v. Ecclesiastical Commissioners, 7 Ch. D. 380. The circumstance that two parties stand towards each other in the relation of trustee and cestui que trust does not affect any dealing between them unconnected with the subject of the trust: Knight v. Majoribanks, 2 Mac. & G. 10. A trustee for infants or persons under disability cannot purchase the trust estate unless by leave of a Court of equity, because persons not siii juris cannot enter into any contract with him which would have the effect of removing him from the character of trustee, which, as we have already seen, can be done by cestuis que trust, who are sui juris. Tlie terms upon which such trustees might purchase, "was a bill filed: and the trustee saying so much is bid, and that he would give more. The Court would examine into the circum- stances; ask who had the conduct of the transaction; whether there was any reason to sxippose the premises could be sold better; and, * upon the resiilt of that inquiry, would let [ * 181] another person prepare the particular and let the trustee bid:" per Lord Alvanley, M. R., Campbell v. Walker, 5 Ves. 682; S. C, 13 Ves. 601. See also 1 Ball & B. 418, and Farmer v. Dean, 32 Beav. 327; Aberdeen Railway Co. v. Blackie, 1 Macq. H. L. C. 472. These principles apply with peculiar force to a committee of a lunatic's estate. The Court has even gone so far as to refuse to conlirm a lease to a committee, though it was approved by the Mas- ter as beneficial to the estate of the lunatic. Shelf, on Lunacy, 446. The doctrine which is applicable to purchases by trustees applies 243 * 1 82 FOX V. MACKRETH. also to purchases by persons acting in any fiduciary capacity, which imposes upon them the obligation of obtaining the best terms for the vendor, or which has enabled them to acquire a knowledge of the property. [Maryland Fire Ins. Co. v. Dalrymple, 25 Md. 242.] Directors of companies being trustees for the shareholders they cannot purchase shares from the chairman of the company, who is in fact their co-trustee, unless authorized so to do by the constitu- tion of the company or the deed of settlement: Hodgkinson v. The National Live Stock Insurance Company, 26 Beav. 473; 4 De G. & Jo. 422. [A trustee for bondholders cannot deal in the bonds for his own benefit, or lease a road to a company of which he is a stockholder. Ashuelot R. R. v. Elliott, 57 N. H. 397.] So the director of a company, being a trustee for the company, is as such precluded from dealing on behalf of the company, with himself or the firm of which he is a partner, and he must account to the company for all the profits he may make by such dealing: Aberdeen Railway Company v. Blaikie, 1 Macq. Ho. Lo. 461; Ben- son v. H'eathoryi, lY. & C. C. C. 326; Flanagan v. Great Western Railway Company, 7 L. R. Eq. 116; Albion Steel & WireComjoany V. Martial, 1 Ch. T>. 680; In re Imperial Land Company of Marseil- les, Ex parte Larking, 4 Ch. D. 566; The Liquidators of the Imper- ial Mercantile Credit Association v. Coleman, 6 L. R. Ho. Lo. 189. So also must his partner, although he be in no way connected with the company; for if the transaction is a partnership transac- tion, the partners are liable jointly and severally to the company. Ih. See 2 Set. Dec. 1359, 1360, 4th Ed. Although, however, a person may have agreed to become a di- rector in a company forming for the purpose of buying and carry- ing on a business belonging to a firm with which he is in the habit of dealing, he may afterwards, previous to the incorporation of the company, enter into contracts with the firm, and will, in the ab- sence of fraud, not be compelled to account to the company for any profits he may have made thereby: Albion Steel & Wire Company v. Martin, 1 Ch. D. 580. [ * 182 ] But persons about to become * directors of a proposed company will not be allowed to accept money to purchase shares to qualify them for office from a person about to become a vendor to the company, and with whom it was their duty to deal as trustees for the company, and such money will in contemplation of a Court of Equity be held to belong to the company, and if it were applied by the directors in the purchase of shares, such shares would be considered to l^e unpaid for, and the directors liable on the winding up of the com-p^kUj to be put on the list of contributories in respect of those shares. See In re Canadian Oil Works Corpor- ation, Hay^s Case, 10 L. R. Ch. App. 593, See also Etna Insur- ance Company, In re Owens, 7 I. R. Eq. 325, 424; McKay^s Case, 2 Ch. D. 1. 244 FOX V. MACKRETII. * 183 And if the consideration from the promoters as an inducement to a person to become a director, has been a gift of fully paid-up shares, he may be compelled at the option of the company either to transfer tbe shares to the company or to account to the company for the highest value to be attributed to the shares since they had been in his possession, with interest at 4 per cent, from the date of the transfer, and the costs of the action. Nant-y-Glo and Blaina Ironworks Company v. Grave, 12 Ch. D. 738; see also Phosphate Sewage Company v. Hartmont, 5 Ch. D. 394, 457. It may be here mentioned that in dealing with such cases as have been lastly considered, the same principle of law is administered both under the Companies Act, 18G2, and in actions in the High Court, and, to use the words of Bacon, V.-C, " There is no ground for even the most shadowy distinction between the two cases." See Nant-y-Glo and Blaina Iromvorks Co. v. Grave, 12 Ch. D. 747. In other words, in exercising jurisdiction under the 165th Section of the Companies Act, 1862 (25 & 26 Vict. c. 89), the words "misfeas- ance, or breach of trust," have been held to c(jmprehend all these cases, which a Court of Equity has dealt with under the larger and comprehensive head of actual or constructive fraud. The 165th Section of the Companies' Act, 1862 (omitting parts not material for the present purpose) enacts that where in the course of the winding up of any company under the Act, it appears that any past or present director has been guilty of any misfeasance or breach of trust in relation to the company, the Court may, on the application of any liquidator, creditor or contributory of the com- pany, examine into the conduct of such director, and compel him to contribute such sums of money to the assets of the company by way of compensation in respect of such misfeasance or breach of trust as the Court thinks just. * Hence it has been held that when directors of a [ * 183 ] proposed company have received from the promoters money (In re Englefield Colliery Company, 8 Ch. D. 388), or a gift of fully paid up shares, they must account to the liquidator for the money or the full value of the shares at the time of the present, or to account for the thing itself, or its proceeds if it had increased in value. In re Morvah Consols Tin Mining Company, McCay's Case, 2 Ch. D. 1. In re Caerphillij Colliery Company, Pearson's Case, 4. Ch. D. 222; 5 Ch. D. 336,341; In.re British Provident Life and Guarantee Association, Re Ruvigne's Case, 5 Ch. D. 306; Onnerod's Case, 25 W. R. 765; In re Diamond Fuel Company, Mitcalfe's Case, 13 Ch. D. 169. In re Carriage Co-oper- ative Supply Association, 28 Ch. T>. 322. And when the present to the director consisted of shares at a price below the value, he has been charged with or compelled to make good to the company the full possible value of the shares less what he paid for them. In re West Jewell Tin Mining Company, Weston's Case, 10 Ch. D. 579. 245 * 184 FOX V. MACKRETH. The director is further chargeable with interest at 4 per cent from the time he received the shares and costs. Nant-y-Glo and Blaina Iromvorks Company v. Ch^ave, 12 Ch. D. 738. When, however, shares without consideration are allotted to some of the director of a company, and at the time the transaction was entered into and completed, every member knew of the transaction and accepted it, and it was not then intended that any others should become members of the company, the doctrine that directors may not make a profit is inapplicable, neither is there any fraud, so that they cannot be charged with misfeasance under the 165th section. In re British Seamless Paper Box Company, 17 Ch. D. 467. See also In re Ambrose Lake Tin and Copper Mining Company, Ex parte Taylor, 14 Ch. D. 390. And the result would be the same even if some fresh share- holders, in order to obtain an increase of capital, were about a year afterwards admitted. In re British Seamless Paper Box Company, 17 Ch. D. 467. But if shortly after the transaction a prospectus had been issued and the public had been invited to come in and take shares, no Court would have listened to directors who said that it was not in- tended to take in fresh members. lb. 479. Per Cotton, L. J. It has, however, been decided, that where the directors of a pro- posed company received from the intended vendor to the company, not money but fully paid up shares, allotted to the vendor as part of the consideration for the sale, the directors although [ * 184 ] liable to the company for their breach * of trust, could not be put on the list as contributories in respect of such shares: In re Westeryi of Canada Oil, Lands and Works Compayiy, Carting, Hespeler and WaUKs Cases, 1 Ch. D. 115; where the Lords Justices discharged the order of the Master of the Eolls (reported 20 L. E. Eq. 580), but without prejudice to any application that might be made against the directors under the Companies' Act, 1862 (25 & 26 Vict, c 89), sec. 165, or otherwise, on the ground that they had entered into a corrupt bargain with the vendor. " There certainly are three things," said Mellish, J., " any of which the company might do. They might say in the first instance, ' These shares never ought to have been allotted to the di- ■ rectors at all;' and if they were now valuable shares, they could say, ' Transfer them back to us, for you never were entitled to them.' Secondly, if the directors had sold the shares, and made a large profit out of them, the company could have said, ' Those shares were our shares, you were trustees for us, and therefore you shall hand over to us the entire profit you have made by selling them; ' and thirdly, the company might say, 'Although you have made no profit by selling these shares, yet, by having had them allotted to you, you deprived us of the power of allotting them to other per- sons, therefore you must pay us the sum which we have lost by rea- son of oiu' being deprived of the right of allotting those shares to 246 FOX V. MACKRETII. * 185 other persons who would have paid thorn up.' Of those three remedies the liquidators may, in my judgment, take whichever is most beueiicial to the company. But can they do more? Can they say, 'Although the shares which you have taken, which were the property of the company, were absolutely worthless, or worth very little, both at the time when you took thorn, and ever since, never- theless, inasmuch as nominally tlioy were lOO/. shares, we will make you liable for that full sum of 100/. on each share'? In my judg- ment that would be inflicting an arbitrary punishment on a trustee for his breach of trust. It would not be indemnifying the cestui que trust for the injury ho had sustained, but would be giving him a sum which, if the breach of trust had never been committed, he would not have acquired." See and consider Ex x>ct,rte Daniell, 1 De. G. & Jo. 372. Members, moreover, of a company, at a meeting duly called, may, on a sale of its business, give part of the i)urchase-raonoy to the directors by way of compensation for their loss of office. See Sontliall V. British Mutual Life Assurance Society, G L. R. Ch. App. 014, in which case a clause in an agreement for the amalgamation of two insurance companies, providing that part of the * purchase- money should be paid to the directoi'sof the [ "^•- 185 ] selling company by way of bonus, was held by the Lords Justices, affirming the decision of the Master of the Kolls (reported 11 L. R. Eq. 65), not to invalidate the amalgamation. "It is said," observed James, L. J., " that it is a violation of the principles of this Court, that the directors should have a bonus of 600/. each. I agree, if this had been done seci'etly, in all probability it could not be supported. But it was done openly, and appeared on the face of the agreement. There was nothing in itself wrong in such an arrangement, and it was known to all the shareholders. They said, * We are going to get rid of the chairman and the directors, and we think it right that we should give them some compensation.' It would be monstrous to say that a transaction otherwise reasonable, could be vitiated by such a clause as this." Any secret stipulation, however, by the directors, negotiating an amalgamation for a commission or a share thereof, will be set aside: General Exchange Bank v. Horner, 9 L. R. Eq. 480. The promoters of a proposed company stand in a fiduciary rela- tion to it, and are therefore bound to make a full and fair disclosure of their interest in the property. When therefore promoters and others, under the name of a syndicate, had suppressed the facts that they were the real vendors, and that they gave for the property less than the price that the company were about to give, and had ob- tained the acceptance of the contract from a board of their own cre- ation, and had inserted in the prospectus statements contrary to the facts, which would lead intending shareholders to believe that the contract had been approved by all the directors, it was held by the Coui't of Appeal that thei'e was no contract binding on the company, 247 * 18G FOX V. MACKRETII. and that the sale to the company must be set aside, and judgment given against the members of the syndicate for repayment of the pui'chase-money (The Neiv Sombrero Phosphate Company v. Er- langer, 5 Ch. D. 73, affirmed Dom. Proc. 3 App. Cas. 12l8, nom Erlanger v. The Neiv Sombrero Phosphate Company ; 2 Set. Dec. 1357, 4th Ed. See also The Lindsay Petroleum Company v. Hurcl, •5 L. E.. P. C 221). And it was also held that the estate of a de- ceased member of the syndicate was liable on the ground that he was a partner, and that the action therefore did not die with him {The Neiv Sombrero Phosphate Company v. Erlanger, 5 Ch. D. 73), bat it seems that directors who were not members of the syndicate were not liable, lb. And although a company which has purchased a concern may have compromised a suit with the vendors instituted for the res- [ * 186 ] cission of the contract, it may * nevertheless proceed against the promoters who stood in a fiduciary relation to the company, and recover from them a secret profit which they may have made out of the price payable under the contract (Bagnall v. Carlton, 6 Ch. D. 371; 27^6 Emma Silver Mining Cqinj^any v. Grant, 11 Ch. D. 918; Emma Silver Alining Company v. Lewis, 4 C. P. D. 396; Whaley Bridge Calico Printing Company v. Green, 5 Q. B. D. 109), but the promoters would be entitled to be allowed their ex- penses properly incurred in bringing out the company (Bagnall v. Carlton, 6 Ch. D. 371; Emma Silver Mining Company v. Grant, 11 Ch. D. 918), but not, it seems, to any commission (Bagnall v. Carl- ton, 6 Ch. D. 371; Emma Silver Mining Company v. Grant, 11 Ch, D. 918); but where the plaintiffs in their bill offered to allow the promoters a commission, it was held that they could not retract their offer, and that a fair commission must be allowed (Bagnall v. Carl- ton, 6Ch. D. 371). And if such promoters present a petition for liquidation, the com- pany will be at liberty to go in and prove against their estate for the sum found due from them in any action, it not being a demand in the nature of unliquidated damages, arising otherwise than by rea- son of a contract (Emma Silver Mining Company v. Grant, 17 Ch. D. 122). Such a debt, moreover, being incurred by fraud, and a breach of trust, it was held to be within sect. 49 of the Bankruptcy Act, 1869, and the promoters were held not to be released from such debt by their discharge, and were ordered personally to pay the debt to the company, or so much thereof as should not be received by the company under the liquidation: lb. And see now the Bankruptcy Act, 1883, (46 &47 Vict. c. 52), ss. 30, 37. The legislature has interposed to prevent the frauds too often com- mitted in the formation of companies. The Joint Stock Companies Act (7 & 8 Vict. c. 110), by the 29th section enacts that if any con- tract or dealing (with certain exceptions) shall be entered into in which any director shall be interested, then the terms of such con- tract or dealing shall be submitted to the next general or special 248 FOX V. MACKRETII. * 187 meeting of the Bhareholdt^rs to be summoned for that purpose, and that no such contract shall have force until approved and confirmed by the majority of votes of the shareholders present at such meet- ing. " The object of the clause," Observes Wood, V. C, " is to pre- vent a person, who is a trnstee, from entering into contracts on be- half o^ his cestnis que trust in which he is himself personally inter- ested. The exception to the prohibition introduced by the words ' no such contract shall have force until ajiproved and * confirmed' is intended to afford an opportunity to the [ * 187] cestui que trust to consider whether he will ratify any such contract." Re South Essex Gas, &c., Co., Johns. 483. See Ernest v. Nicholls, 6 Ho. Lo. Ca. 401 ; Murray's Executors' Case, 5 De G. Mac. & G. 746. A contract between a company and a person who acts as a direc- tor, whether legally or not, is within the prohibition of the statute: Re South Essex Gas, &c., Co. Johns. 480. The exception in the 29th section of the statute, of contracts for articles or services the subject of the proper business cf the company, refers to articles and services supplied or rendered by the company to a director, and not to those supplied by a director to the company: lb. The Joint Stock Companies Act (7 & o Vict. c. 100) has been re- pealed by the Companies Act, 1862 (25 & 26 Yict. c^89), which has no section corresponding with the 29th section of 7 & 8 Vict. c. 100; but amongst the regulations contained in the 1st schedule there- of it is enacted that "the office of director shall be vacated if he holds any other office or place of profit under the company If he is concerned in or participates in the profits of any contract with the company. But the above rules are subject tp the follow- ing exception: that no director shall vacate his office by reason of his being a member of any company which has entered into con- tracts with or done any work for the company of which he is a di- rector; nevertheless, he shall not vote in respect of any such con- tract or work; and if he does so vote, his vote shall not be counted." Sect. 57. See sect. 165, ante, p. 182. A mortgagee {Downes v. Grazebrook, 3 Mer. 200; Waters v. Groom, 11 C. & F. 684) or an annuitant (In re Bloijes Trust, 1 Mac. & G. 488; S. C, nom. Lewis v. Hillman, 3 Ho. Lo. 607, 630), with power of sale, being in fact a trustee for sale, cannot, either directly or by means of his solicitor, except by the express authority of his cestui que trust, purchase the estate upon which the mortgage or annuity is a charge. See also Ingle v. Richards, 28 Beav. 361. [If a trustee purchases a mortgage at a discount he cannot claim the benefit: Green v. Winter, 7 Am. Dec. 475.] Nor can the solicitor conducting the sale do so on his own account, at any rate without a full explanation to the parties interested, and putting them in full possession of the facts, and a knowledge that he was to become purchaser for himself. lb. See also Orme v. 249 * 1S8 FOX V. MACKRETH. Wru)ht, 3 Jnr. 19; Robertson v. Norris, 1 Giff. 421, 428; 4 Jur. N. S. 155. So, likewise, when a sale by auction took place under the direc- tion of a building society as mortgagees, and the secretary of the society openly bid for and became the purchaser of two lots on his own account, although there was no proof of undervalue, [* 188] * it was held by North, J., that under the circumstances the sale to the secretary could not be maintained as against the mortgagee, Martinson v. Clowes, 21 Ch. D. 857, affirmed \\'. N. Feb. 28, 1885, p. 41, disappi'oving of Robertson v. Norris, 1 Giff. 421. [A cestui que trust may either ratify or set aside the sale, whether public or private within a reasonable time: Alexander v. Alexander, 46 Ga. 291; Harrison v. McHenry, 9 Ga. 164.] A mortgagee, however, does not ordinarily stand in a fiduciary position towards the mortgagor, so as to render a purchase of the equity of redemption by him from the mortgagor {Knight v. Majori- ba)iks, 2 Mac. & G. 10; and see Webb v. Rorke, 2 S. &L. 661, 673; Waters v. Groom, 11 C. & F. 684; Dobson \. Land, 8 Hare, 220; Rushbrook v. Lawrence, 8 L. R. Eq. 25; 5 L. K. Ch. App 3) [A person may sell his equity of redemption the day after the mortgage has been created if he chooses, but he cannot part with it in favor of the mortgage at the instant the mortgage is granted : "Wilson v. Drumrite, 21 Mo. 325; Pierce r. Robinson, 13 Cal. 125; Clark v. Condit, 3 C. E. Green, 358; Pritchard r. Elton, 38 Conn. 434 ; McNees v. Swaney, 50 Mo. 391 ; Eobinson r. Farelly, 16 Ala. 472 ; Eogan V. Walker, 1 Wis. 527; Rankin v. Mortimere, 7 Watts, 372; Woods i: Wallace, 10 Harris, 171] or from a prior mortgagee sell- ing under a power of sale (Shaic v. Bunny, 33 Beav. 494; 2 DeG. Jo. & Sm. 468) impracticable, even, it seems, although the pur- chaser be a second mortgagee with a trust for sale : Kirkicood v. Thompson, 2 Hem. & Mill. 392; 2 De G. Jo. & Sm. 613; Locking V. Parker, 8 L. R. Ch. App. 39. See, however, Parkinson v. Hanbury, 1 Drew. & Sm. 143. But where the conveyance with a trust for sale is to a third person, he being a trustee for both parties, will be unable to purchase : Blennerhasseft v. Day, 2 Ball. & B. 104, 133. Transactions, however, between mortgagor and mortgagee are viewed with considerable jealousy, and the sale of the equity of re- demption will be set aside where, by the influence of his position, the mortgagee has purchased for less than others would have given, and where there are circumstances of misconduct in obtaining the purchase: Ford v. Olden, 3 L. R. Eq. 461: and see Prees v. Coke, 6 L. R. Ch. App. 645, 649. [Villa v. Rodriguez, 12 Wallace. 323 ; Russell V. Southard, 12 Howard, 154; Brown v. Gaffney, 28111. 150; Baugher r. Merryman, 32 Md. 185.] There a mortgagee, who was also a solicitor, obtained a conveyance from the mortgagor, a man in humble circumstances, without a legal adviser; and it was held, 250 FOX V. MACKRETH. * 189 that the onus of justifying the transaction, and showinrr that it was right and fair, was thrown upon the mortgagee. A lease from the mortgagor in distressed circumstances to the mortgagee may be set aside: Fo7'd v. Olden, 3 L. R. Eq. 461; Hickes V. Cooke, 4 Dow, 16. Wliore, in a deed creating a trust, there are provisions by which the trustees making certain advances, and paying off part of a mort- gage debt, should be entitled to a charge on the estate; it seems even if a trustee making such an advance were entitled to have such a mortgage on the estate as would empower an ordinary mortgagee to foreclose, the Court would not allow him, by reason of his fiduciary position, to take such a step, as being inconsistent with his duty as trustee to preserve the estate. See Tennant v. Tennant, 4 L. R. Ch. App. 544; and the observations made by Lord Brougham in Hamilton v. Wright (9 C. & F. 128). * The question has been raised whether one of the trus- [ * 189 ] tees of a charity can himself with propriety become a mortgagee of the charity property. It was decided in the affirma- tive in the case of Attorney -General v. Hardy, 1 Sim. N. S. 388. In the analogous case, however, of Forbes v. Ross (2 Cox, 113), it was held by Lord Thiirlow, C, that trustees having power to lend money on personal security, could not lend it to one of themselves, so that he should benefit thereby, his Lordship observing that " he pro- ceeded upon this single ground that a friisfee canyiot bargain ivith himself so as to derive, through the medium of the contract, any de- gree of forbearance or advantage whatever to himself^ [A man in a tiduciary relation, as a trustee or the like, cannot in this capacity buy or sell or otherwise deal with himself in his individual capac- ity: Griffin u Marine Co., 52 111. 130; Collins v. Tilton, 58 Ind. 374; Taussig v. Hart, 58 N. Y. 425; Michond v. Girod, 4 How. (U. S.) 503; Rogers v. Tockett, 28 Ark. 290; Remick ?•. Butterfield, 11 Fost. (N.H.) 70; Rickey v. Hillman, 2 Halst. 180; Boyd v. Hawk- ins, 2 Iredell, 304; Cram v. Mitchell, 1 Sand. Ch. 251; Child v. Brace, 4 Paige, 309; Tynes t'. Grimskad, Tenn. Ch. 508; Renew v. Butler, 30 Ga. 954.] This principje is undoubtedly sound, and it appears to be applicable to a case of a mortgage of the trust prop- erty to a trustee, as well as to the case of a loan of the funds of the ti'ust to him. An agent or solicitor employed to sell cannot purchase from his principal, unless he make it perfectly clear that he furnished his employer with all the knowledge which he himself possessed (Low- ther \. Loicfher, ]S Yes. 103; and see the great case of The York Buildings Company v. Mackenzie, 8 Bro. P. C. 42, Toml. ed. ; and see S. C, 3 Paton's Scotch App. Cas. 578, 579, where the judgments of Lord Thurlow and Lord Loughborough are given at length; Watt-i. Grove, 2 S. & L. 492; Wh'ifcomb v. Minchin, 5 Medd. 91; Woodhouse v. Meredith, 1 J". & W. 204; Oliver v. Court, 8 Price, 127); and the moment it appears in a transaction between princi- 251 * 190 FOX V. MACKRETH. pal and agent that there has been any underhand dealing by the agent, — that he has made use of another person's name as the pur- chaser, instead of his own,— however fair the transaction may be in other respects, from that moment it has no validity in equity: Trevehjan v. Charter, 9 Beav. 140; Charter v. Trevehjan, 11 C. & F. 714; Lewis v. Hillmaii, 3 H. L. Cas. 607; Walsham v, Stainton, 1 De G. Jo. & Sm. 678; M'Pherson v. TVatt, 3 App. Ca. 254. It is, moreover, well settled that it is not necessary to prove that a purchase has been made by the agent at an undervalue. "A principal selling to his agent is entitled to set aside the sale upon equitable grounds, whatever may have been the price obtained for the property," per Sir E. Siigden, L. C, in Murphy v. O'Shea, 2 J. iSc K 422. In Croive v. Ballard, 3 Bro. C. C. 117, Lord Thurloiv, thought that the person employed to sell could not be permitted to buy, and even if that were done with the knowledge of the party selling, it could not be supported; and that the principle must pre- vail, even if he had bought fairly. Lord Thurloiv, however, it is conceived, did not mean to lay down, as a general [ * 190 ] * rule, that an agent could in no case purchase from his principal; he spoke probably with reference to the case he was deciding, which was one of gross fraud. At any rate, it is clear now, that an agent to sell can purchase from his employer, if he comply with the rule laid down in Loivthery. Lowther. See also Wentworth v. Lloyd, 32 Beav. 467, affirmed Dom. Proc. 10 Jur. N. S. 960. An agent for sale who takes an interest in a purchase negotiated by himself, is boimd to disclose to his principal the exact nature of his interest; and it is not enough merely to disclose that he has an interest, or to make statements such as would put the principal on inquiry: Dunne v. English, 18 L. R. Eq. 524; Liquidators of The Imperial Mercantile Credit Association v. Coleman, 6 L. R. Ho. Lo. 189, 194; In re Morvah Consols Tin Mining Gompany, McKay'' s Case, 2 Ch. D. 1; Faivcett v. Whitehouse, 1 Russ. & My. 132; Hitch- ens V. Congrave, 1 Russ. & My. 150, n. In such a case the burden of proving that a full disclosure was made lies on the agent, and is not discharged merely by the swear- ing that he did so, if his evidence is contradicted by the plaintiff, and not corroborated: Dunne v. English, 18 L. R. Eq. 524. An agent for sale when he has once made the contract and ter- minated his agency, may purchase the property he has sold {Parker V. McKeyina, 10 L. R. Ch. App. 125, 126, per Mellish, L. J.), but such transaction woul.d be looked at with vejy considerable suspicion, lb. [When the relation of principal and agent has been terminated and a settlement made, actual fraud must be proved in order to disturb it: Courtright v. Barnes, 2 McCarary, 532; Barrow v. Rhinelander, 1 Johns. Ch. 550.] As long, however, as the contract remains executory, and the trustee or agent has power either to enforce or to rescind or alter 252 FOX V. MACKRETII. * 191 14, ho cannot repurchase the property from liis own purchaser, ex- cept for the benefit of his principal. Parker v. M'Kenna, 10 L. R. Ch. App. 96, 125. See also lie Hay's Case, 10 L. E. Ch. App. 51)8. An ajrent enjployed to sell an estate may, with the consent of his principal, make a prolit of the transaction, as, for instance, where the bargain between th(^m was that the agent should have what- ever the estate fetched beyond a certain sum: Morgan v. Elford, 4 Ch. D. 352. The same objections apply to an auctioneer employed to sell pro- perty: Oliver v. Court, 8 Price, 127, 160; Baskett v. Cafe, 4 De G. & Sm. 388. But after his agency is terminated by the sale of the property, he may, it seems, buy it from the purchaser. As, for instance, in the case of an auctioneer, when he has knocked the estate down, and made the written contract, when it may be said that his agency has terminated: Parker \. McKenna, 10 li. R. Ch. App. 126, per Mel- lish, L. J. Biit even in that case the Court would look * with considerable suspicion on a repurchase by such an [ * 191 ] agent as an auctioneer, from the person to whom ho sold the estate, because it would always be extremely difficult to find out whether there had not been some previous concert and understand- ing between them: lb. With regard to an agent employed in the management of an es- tate, " the rule of the Court," observes Sir Edward Sugden, L. C. of Ireland, " does not prevent an agent from purchasing from his prin- cipal, but only requires that he shall deal with him at arm's length, and after a full disclosure of all that he knows with respect to the property:" Murphij v. O'Shea, 2 J. & L. 425. But it seems that a purchase by a person acting in that capacity from his principal, or the cestui que trust of his principal, will be set aside upon the ground alone, that the vendor had no competent or disinterestedjr.dviser: King v. Anderson, 8 I. R. Eq. 625, revers- ing S. C, lb. 150. See also Ahearne v. Hogan, 1 Dru. 310; Eos- siter V. Walsh, 4 Dru. & AV. 485. An agent or steward may also take a lease from his employer or principal {Lord Selseij v. Ehoades, 2 S. & S. 41; 1 Bligh, N. S. 1); but it must always be difficult to sustain such a lease in a court of equity, as it must be proved that full information has been imparted, and that the agreement has been entered into with perfect good faith: Maloney v. Kernan, 2 D. & W. 31. If an agent employed to make a purchase purchases for himself, he will be held a trustee for his principal {Lees v. Nuttall, 1 Russ. & My. 53; S. C, 1 Taml. 282; Chattock v. Mnller, 8 Ch. D. 177)-, and where the agency extends only to part of the lands included in a purchase, and there is some uncertainty as to which were intended, a reference may be directed to ascertain them (Chattock v. Muller, lb.), and also the price to be paid. lb. 253 * 192 FOX V. MACKRETII. Nor will an agent employed to purchase bo permitted, unless by the plain and express consent cf his principal, to make any profit by buying and becoming a seller to him. [It is against common honesty and jiistice that the same person should be both vendee and vendor, hence an attempt to so act is a fraud. This rule applies to all persons whose duties require them to buy or sell for the bene- tit of another: Greenwood v. Spring, 54 Barb. 375; Carter v. Thomp- son, 41 Ala. 375; Morris v. Taylor, 49 111. 18; Building Association V. Caldwell, 25 Md. 423.] This doctrine is recognised by Lord Thur- loiv in East India Company v. Henchman, 1 Ves. jun. 289, where he observes, " If, being a factor, a man buys up goods which he ought to furnish as factor, and, instead of charging porterage duties, or accepting a stipulated salary, he takes the profits and deals with his constituent as a merchant, this is a fraud for which an account is due." See Kimber v. Barber, 8 L. K. Ch. App. 50. There the defendant. Barber, knowing that Kimber, the plaintiff, was anxious to obtain shares in a certain company, on the 19th of January, 1870, called on the plaintifl and informed him that he. Barber, [*192] knew of 264 shares at 3Z. Barber was * then autliorised by Kimber to buy the shares at 3Z. The shares were ac- cordingly bought, sixty-four of them were transferred to Kimber, and 200 to his nominee, one T. G. Taylor, a broker being the trans- feror, and Kimber paying Barber 795Z. for the shares and the transfer duty. It appeared subsequently that Barber, being aware that the plain- tiff's desire to obtain the shares on the 13th of January, wrote to Jones, asking as for a friend, whether he would sell his shares, and on the 17th of January concluded an agreement with Jones for the pm-chase of the shares, at 21. a share, and forwarded him a blank transfer. After the interview between the plaintiff and Barber, on the 19th of Janiiary, Barber instructed Taylor to prepare bought and sold notes to the effect that the shares had been bought through Taylor, as the broker, and the shares were afterwards transferred by Jones to Taylor. As Barber had not sufficient money to pay for all the shares, some of them were lent to him by Taylor, for the pur- pose of being transferred to Kimber. Kimber had transferred ten out of the sixty-four shares to other persons, so that at the time when the bill was filed, he held only fifty-four shares. Lord RomiUy, M. E., dismissed the bill without costs, holding that no relief could be given to the plaintiff as he had transferred 210 out of the 264 shares, and had thus rendered it impossible to set aside the transaction. It was held, however, by Lord Selborne, L. C, reversing the decree of the Master of the Rolls, that as Barber purchased the 264 shares from Jones, as agent for the plaintiff, the plaintiff was entitled to the benefit of that purchase, and that Barber ought to pay to the plaintiff the sum of 264L, being the difference between the prices paid by the plaintiff and Barber. " It seems to me," said his Lord- ship, " the common relief — the relief which was given in Hichens v. 254 FOX V. MACKRETU. * 103 Congreve, (4 Kuss. 502, 577), Bank of London v. Tyrrell (10 Ho. Lo. C. 26), and in other cases too numerous to mention." See also Morison v. Thompson, 9 L. K. Q. B. 480; Grout Luxembourg Rail- way Company v. Maarte Lacey, 6 Ves. 628; Chute v. Lindesay, 6 I. R. Eq. 385, cited. It seems, however, that an executor who has not proved, is xinder no disability to purchase the testator's assets: Clark v. Clark, 9 App. Ca. 733. Assignees of a banki-upt (now called trustees for the creditor) * cannot in any case purchase his property. [ * 198 ] 259' * 190 FOX V. MACKRETII. This may be laid down as a general rule, which will be more peculiarly applied with unrelenting jealousy, from the impossi- bility of reaching the transaction, and, moreover, because the as signee has the bankrupt and his property altogether under his own disposal (see Ex parte Ckadivick, cited in Montague and Ayr- ton's book. on Bankruptcy, vol. 1, 329, 2ud ed. ; Ex parte Lacey, 6 Ves. 023; Ex parte Hughes, 6 Ves. 617; Ex x>arte James, 8 Ves. 337; Ex parte Tanner; Ex parte Attivood; Oiven v. Foulkes, 6 Ves. 430 n.; Ex x)cirte Bage, 4 Madd. 459; Ex pjarte Badcock,, 1 Mont. & Mac. 231; Turnery. Trelawny, 12 Sim. 49; Ex parte Thtcaites, 1 M. & A. 323; Ex j^arte Alexander 2 M. & A. 492); nor can his partner {Ex x)CLvte Biirnell, 7 Jur. 116); nor can even, it seems, a creditor of the bankrupt who has been consulted by the assignees as to the terms upon which the property should be put up: Ex parte Hughes, 6 Ves. 617. In Welpdale v. Cookson, 1 Ves. 9; 5 Ves. 682. Lord Hardivicke confirmed a sale of a bankrupt's estate to an as- signee, in case the majority of the creditors should not dissent; but Lord Eldon, in Ex parte Lacey, 6 Ves. 628, doubted the au- thority of that case: "If," said his Lordship, "the trustee is a trustee for all the creditors, he is a trustee for them all in the arti- cle of selling to others; and if the jealousy of the Court arises from the difficulty of a cestui que trust duly informing himself which is most or least for his advantage, I have considerable doubt whether the majority in that article can bind the minority:" Ex parte Thwaites, 1 M. & A. 323. But in a subsequent case, on pay- ment of costs, a purchase by an assignee, on being found beneficial by the Court, was confirmed (Ex parte Gore, 6 Jur, 1118; 3 M. D. & De G. 77; 7 Jur. 136). An assignee, moreover, has been re- moved by the Court in order that he might bid at a sale of the bankrupt's estate (Ex parte Perks, 3 M. D. & De G. 385); and in a case where the Court refused to allow an assignee to bid, he was allowed to name the price he would give if the property were not sold by auction, and afterwards to buy at that price: Ex parte Holyman, 8 Jur. 156. As to the purchase of debts dxie from the bankrupt by the as- signee, it has been decided that, as assignees cannot buy the estate of the bankrupt, so, also, they cannot for their own benefit buy an interest in the bankrupt's estate, because they are trustees for the creditors. In that respect there is no difference between as- signees and executors, who cannot for their own benefit buy the debts of the creditors; for although, in a moral point [ * 199 ] of view, such a * transaction may not be blamable, still the Court, considering that, unless the policy of the law made it impossible for them to do anything for their own benefit, it was impossible to see in what cases the transaction was morally right, and also the prodigious power of the assignees connected with solicitors under the commission, and bankers receiving the money, 2G0 FOX V. MACKRETIl. * 200 over tho creditors and the bankrupt, has held the assignees trustees of the debts purchased by them for the benefit of those entitled to the interest in the rosidiie, tho creditors or the bankrupt, as the case may be: Ex j 'arte Lacey, G Ves. 028. And see Pooleij v. Qiiillcr, 2 De G. & Jo. 827, reversing the decree of !Sir li. T. Kindersley, Y.-C, reported 4 Drew. 184; and see Adams v. Sicorder, 2 De G. Jo. & Sm. 44, reversing S. C, 4 Gitf. 287. When Courts of Bankruptcy had jurisdiction over trustees of deeds executed in confcirte Toxai, 2 M. & A. 29) cannot purchase. The rule affecting assignees of bankrupts applied with equal force to a commissioner of bankrupts; Ex parte Bennett, 10 Ves. 381), even although he had not acted {Ex parte Harrison, 1 Buck, 17; Ex parte Dambell, Mont. 33, cited in notes); or had ceased to act in the prosecution of the fiat: Ex parte Baynton, 7 Jur. 244. A solicitor is not incapable of contracting with or purchasing from his client; but inasmuch as the parties stand in a relation which gives, or may give, the solicitor an advantage over the client, the onus lies on the solicitor to prove that the transaction was fair; (Montesquieu v. Sandys, IS Ves. 302; Ca7ie v. Lord Allen, 2 Dow, 289; Champion N.- Rigby, 1 Euss. & M. 839; Edivards \. Meyrick, 2 Hare, 60; Gibbs v. Daniel, 4 Gift'. 1; Pisani v. Attorney General for Gibralter, 5 L. R. P. C. C. 516); [Such transactions are sub- ject to close scrutiny: Henry t\ Raiman, 1 Casey 354:] and the * indorsement (not now necessary) or acknowledge- [ * 200 ] ment in the deed of the receipt of the purchase money has been held not sufficient evidence of its payment by the solici- tor to his client; Gresley v. Mousley, 3 De G. F. & Jo. 433. In the case of Gibson v. Jeyes, 9 Ves. 266, where Jeyes, an attor- ney, sold an annuity to his client, this subject was much considered by Lord EVlon: "An attorney," says his Lordship, ''buying from his client, can never support it, unless he can prove that his dili- gence to do the best for the vendor ha« been as great as if he was only an attorney dealing for that vendor with a stranger. That 261 * 201 FOX V. MACKRETH. mast be the rule. If it appears that in that bargain he has got an aiivantage by his diligence being surprised, putting fraud and in- capacity out of the question, which advantage, with due diligence, he would have prevented another person from getting, a contract under such circumstances shall not stand. The principle so stated may bear hard in a particular case; but I must lay down a general principle that will apply to all cases; and I know of none short of that, if the attorney of the vendor is to be admitted to bargain for his own interest, where it his duty to advise the vendor against him- self." And in another part of his judgment his Lordship observes: "If he will mix with the character of attorney that of vendor, he shall, if the propriety of the contract comes in question, manifest that he has given his client all that reasonable advice against him- self that he would have given against a third person. It is asked, where is that rule to be found ? I answer, in that great rule of the Coui't, that he vvho bargains in matter of advantage with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence; a rule applying to trustees, at- torneys, or any one else." See slso Austin^. Chambers, 6 C &r. 1. 37; Trevelyan v. Charter, 9 Beav. 140; iS. C, 11 C. & F. 714; King v. Savery, 1 Sm. & G. 271; S. C, nom. Saveryw. King, 5 H. L. Cas. 627, 656, 665; Bellamy v. Sabine, 2 Ph. 425; Holman v. Loynes, 4 De G. Mac. & G. 270; Salmon v. Cutis, Cults v. Salmon, 4 De G. & Sm. 125; Barnard v. Hunter, 2 Jur. N. S._1213; Waters V. Thorn, 22 Beav. 547; Spencer v. Tojylumi, lb. 5(3; Denton \. Donner, 23 Beav. 285; Pearson v. Neivson, 28 Beav. 598; Pojjham v. Exham, 10 Ir. Ch. Rep. 440; Ch^esley v. Mousley, 1 Giff 450; 4 De G. & Jo. 78; 3 De G. F. &. Jo. 433 ; Bealev. Billing, 13 Ir. Ch. Rep. 250. [Mott v. Harrington, 12 Vt. 199 Trotter v. Smith, 59, 111, 240, Miles t'. Erwin, 1 M'Cord, Ch. 524; Mahantv Smith, 6 Heisk, 167; Smith v. Brotherljne, 12 P. F. Smith, 461. J In Montesquieu v. Sandys, 18 Ves. 302, the purchase of a rever- sionary interest, viz. a second presentation to a living, ■ after the death of the then incumbent, by an attorney, from his client, though advantageous in the end, was sustained, no fraud or mis- [ * 201 ] representation being proved, and * the proposal coming from the client, both the attorney and client being igno- rant of the real value. See Hesse v. Briant, 6 De G. Mac. & G. 623; 2 Jur. N. S. 922. A solicitor, if a purchase from his client be a fair transaction, may file a bill for specific performance [Cane v. Lord Allen, 2 Dow, 289). And if a solicitor purchasing from his client institute a suit against third parties to enforce his right, the objection to the transaction on the ground of its being a purchase by a solicitor from his client, cannot be maintained by such third parties; Knight V. Bovryer, 23 Beav. 609. It is always advisable that a solicitor, purchasing from his client, should insist upon the intervention of another professional man to 262 FOX V. MACKRETII. * 202 act on behalf of Lis cliout: Pisani v. Attorney -General for Gib- raltar, b lu. JX. F. C.C. blQ. But the rulo laid down by Lord Eldon will not apply, if tho soli- citor does not act in such capacity in hac re {Cane v. Lord Al- len, 2 Dow. 289; Edicards v. Meyrick, 2 Hare, (38; hut see Edwards V. Willidms, 11 W. R. (L. J.;, 501), unless it appears that ho in aware, or takes advantage, of a neglect of duty on the part of the now solicitor, or he withholds or suppresses any information of im- portance acquired when he acted as solicilor: Gibbs \. Daniel, •i Giff. 1. For though a person may have ceased to act as attorney for another, if by means of former transactions, while holding that character, he had acquired, at the expense of his client, a know- ledge of the value of his property which tho client had not, he will not be able to sustain any contract relative to such property, if ho concealed from his former client the knowledge so obtained: Cane V. Lord Allen, 2 Dow, 294; Montesquieu v. Sandys, 18 Yes. 308; Ex parte James, 8 Ves. 352. If, however, such knowledge were commiiuicated to tho former client by the attorney, the parties would bo placed upon an equality, and such comqaunication being proved the ditficulty, quoad hoc, would be removed: Edivards v. Meyrick, 2 Hare. (59. Although a beneficial purchase by a solicitor from his client pending that relation cannot be supported, the solicitor may insist on and obtain a mortgage fi'om his client for what is justly due to him: Johnson v. Fesenmeyer, 25 Beav. 88; 3 De G. & Jo. 13; Pearson y. Neicson, 28 Beav. 59S. A solicitor purchasing from his client will not be allowed to de- rive any benefit, by reason of his having drawn up a conveyance im- properly in his own favour. See Greenfield v. Bates, 5 Ir. Ch. Rep. 219. There a solicitor purchased a leasehold interest from his client, and himself prepared the assignment, which con- tained *no covenant to indemnify the vendor, but did con- [ * 202 ] tain tho words, "subject to rent and covenants," in the lease. It was held by Lord Chancellor Brady that the executor of tho solicitor was bound to indemnify the vendor against the rent and covenants. Where, moreover', a defendant is a member of a firm of solicitors acting for the plaintiff in obtaining an order for a receiver, the firm cannot, by any default or delay of theirs in procuring the receiver's security, enable the defendant to obtain possession of money Avhich ought to have gone into the hands of the receiver and thus enable the defendant to exercise a right of retainer thereon: In re Birt, Birt V. Burt, 22 Ch. D. ()04; Wickens v. Townshend, 1 Kuss. &I\Iy. 301. Nor will a solicitor or a clerk acting in such capacity, bo allowed to derive any benefit by reason of any information acquired during the course of his employment which it was his duty to have communicated to his employer. See Hobday v. Peters, 28 Beav. 263 *203 FCX y MACKRETH. 349. There a mortgagor consulted a solicitor, who turned her over to his clerk to assist her gratuitiously. The clerk by reason of in- formation derived during such employment, bought up the mort- gage for less than half the amount. It was held by Sir John Ro)>iilly, M. R., that he was a trustee of the benefit for the mort- gagoi'. A solicitor employed in making a purchase is accountable to his clients for the benefits which he may have derived clandestinely from a sale to them of his own property. See Tlie Bank of Lon- don V. Tyrrell, 27 Beav. 273. There a solicitor was active in found- ino" a banking company. Before its establishment he entered into a secret arrangement with a stranger, that the. latter should purchase some property eligible for the banking-house on a joint speculation. After its establishment the company purchased part of the premises for their banking-house, not knowing that their solicitor was inter- ested in it. It was held by Sir John Romilly, M. R., whose deci- sion was affirmed by the House of Lords (10 Ho. Lo. Ca. 26, nom. Tyrrell v. The Bank of London), that the solicitor ought to account to the company for all the profit made by him in the transaction, but that the stranger was under no such liability. See also Chajylin V. Young, 33 Beav. 414. A solicitor having, under a decree, the conduct of sale, is under an absolute incapacity to purchase at it: Sidney \. Ranger, 12 Sim. IV^; Atkins v. Delmegc, V2 Ir. Eq. Rep. 1. And see In re Ronayne's Estate, 13 Ir. Ch. Rep. 444 And the better opinion seems to be that, although a solicitor may not under a decree actually have the conduct of the sale, [ * 203 ] if he has * intervened on behalf of parties interested in the sale so as to render it his duty toward them to assist in procuring the best price for the property offered for sale, he ought not to be allowed to purchase it for himself. See Gtiest v. Smythe,h L. R. Ch. App. 553, 554 n. a decision of Lord Romilly^s, reversed, it is submitted erroneously and contrary to principle, by Lord Justice Gifford, sitting alone, see S. C, 5 L. R. Ch. App. 551; see also(?rofer v. Hugell, 3 Russ. 428; ReBloye's Trusts, 1 Mac. & G. 488; Greenlaio v. King, 3 Beav. 49. And a solicitor who has purchased secureties given by his client for smaller sums than the amoiints secured, will not be allowed to hold the purchased secureties as a security to himself for a larger sum than the amount which he had expended in making the pur- chase, even although he had inserted a clause in a deed executed by his client, that he was to be entitled to claim the full amount due on the secureties (Macleo'd v. Jones.24Ch. T>. 289 ) ; but as the Court has a discretion with regard to the allowance of interest in such cases (In re Unsicortli's Trusts, 2 Er. & Sm. 337; Douglass \. Culvericell, 4 D. F. & J. 20; Carter v. Palmer, 8 C. & F. 657), the solicitor may be allowed 5 per cent, on the sum he had expended in making the purchases: Macleod v. Jones, W. N., 1884, 1 March, p. 53. 264 FOX V. MACKKETII. * 204 Although as an ordinary rulo the Court will not grant an inter- locutory injuuction restraining -a mortgagee from exercising his power of sale, except u[)on the terms of the mortgagor i)aying into Court the sum sworn Ijy the mortgagee to be due for principal, in- terest, and costs, such rule will not a[)ply to a case where the mort- gagee at the time of taking the mortgages was the solicitor of the mortgagor, for in such a ca^e the Court will look to all the circum- stances of the case, and will make such order as will save the mort- gagor from oppression, without injuring the security of the mort- gagee: Macleod v. Jones, 24 Ch. D. 289. The employment of counsel as confidential legal adviser disables him from jjurchasing for his own benefit charges on his client's estates without his permission; and although the confidential em- ployment ceases, the disability continues as long as the reasons on which it is founded continue to operate. See Carter v. Palmer, 1 Dru. & Walsh, 722; 8 C. & F. 657; 2 De G. & J. 421. A person chosen as arbitrator cannot buy up the unascertained claims of any of the parties to the reference; for, to use the words of Lord Manners, "that he should purchase an interest in those rights upon which he was to adjudicate, could not be endured. It would indeed be to corrupt the fountain and contaminate the * award:" Blennerhassett v. Day, 2 Ball. & B. 116. [ * 204 ] Upon the same principle, a judgment delivered by a judge, who has an interest in the subject-matter of the suit, will be set aside. See Dimes v. Proiwietors of the Grand Junction Canal (8 H. L. Cas. 759). There it was held that a judgment of Lord Cottenham, C, assisted by Lord Langdale, M. K., (2 Mac. & G. 285), in which, affirming the decision of the 'Court below, he had decided in favour of a company in which he was a shareholder to the amount of several thousand pounds, ought to be reversed. " No one," said Lord Campbell, "can suppose that Lord Cottenham covld be in the remotest degree influenced by the interest he had in this concern ; but it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. . . . This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal inter- est, but to avoid the appearance of laboring under such an influ- ence." So, where an Act of Parliament empowered a rector, with the con- sent of the bishop, who was patron of the living, to raise money by annuity for building a new rectory-house, the plan and accounts of which were to be approved of by the bishop. The bishop advanced the necessary money, and obtained a grant of the annuity charged on the living. The bishop being placed in the position of a trustee to protect the interests of the rectory, it was held, by Lord Lang- dale, M.R., that he could not become the purchaser of the annuity; and that the transaction, although there was no unfairness in it, could not stand, because it was a clear violation of those niles which 265 * 205 ■ ' FOX V. MACKRETH. have been established for the defence of those whose interests and property have been committed to the protection of persors placed in a fiduciary situation: Greenlaw v. King. 3 Beav. 49. See also Grocer v. Hugell, 8 Russ. 428. But see Buyd v. Barker, 4 Drew. 582. It may, however, be laid down as a general rule that a tenant for life may purchase or take in exchange lands from trustees, in wLom they are vested with a power of sale and exchange, wittt his consent and direction {Howard v. Vucane, 1 T. & R. 81), but this case has been put entirely upon the practice of conveyancers ( Grover v. Hu- gell, 3 Russ.432) ; though probably it might be better rested upon the principle that as the trustees were the vendors, their intervention, to check and control the transaction, was quite sufficient to take the case out of the operation of the rule preventing a person in a fidu- ciary position from purchasing from himself. See Beaden v. Kina, 9 Hare 499. [ * 205 ] * In a recent case Lord Justice James says, that " the ground of the rule is, that the power of consenting to or requesting an exercise of a power of sale is given to the tenant for life for his own benefit, and that he is not in a fiduciary position as to it. He has, therefore, the same right to buy from the trustees that any one else has:" Dicconson v. Talbot, 6 L. R. Ch. App. 32, 37. A tenant for life, with power to lease, might at law grant a lease to a trustee for himself (Wilson v. Sewell, 4 Burr. 975; Taylor v. Horde,l Burr. 124; Lord Cardigan v. Montague, 2 Sugd. Pow , 7th ed., App., p. 551); so likewise where, under a mortgage, power was reserved to the mortgagor until entry by the mortgagee to grant building leases, it was held by Sir W. Page Wood, V.-C, that a lease to a trustee for the mortgagor was good: Sevan v. Habgood, 1 J. & H. 222. A power of sale given without restriction to a party having a limited interest only, may well be held to import a negative upon the power of the same party to buy, for the power to sell is in the nature of a trust; but as the rule does not extend to prevent, in all cases, a partybaving a power to sell from becoming a pm-chaser; so neither, where there is a restriction upon the power of sale, is the party having the power to sell in all cases at liberty to become the pur- chaser. It must, in each case, depend upon the circumstances under which, and the purposes for which, the power was given, and upon the nature and extent of the restrictions which are put upon the exercise of the power. In the proportion in which the power is re- stricted, the danger incident to allowing the donee to purchase is diminished: per Sir G. Turner, V.-C, in Beaden v. Kivg, 9 Hare, 519. In the absence of any indication of intention by the settlor or tes- tator, which must be attended to (In re Tempest, 1 L. R. Ch. App, 485), there is no impropriety or conflict of interest, as regards the 266 FOX V. MACKRETII. * 206 time for sale or the necessity for a sale, between the position of ten- ant for life and the position of other parties claiming nnder a set- tlement or will. Hence, when a tenant for life under a will was ap- pointed one of the trustees, and as surviving trustee sold the prop erty, it was held by Sir Ocoxje Jessel, M.K , that ho could make a good title to ihe property which the Court would enforce upon a pur chaser: Forsier v. Abraham, 17 L. E. Eq. 851. A creditor taking out execution is not precluded from becoming the ))urchaser of the property seized under it. " The case of trus- tees," observed Sir Thomas Plumer, M.ll., "is (piite different; with respect to themj the principle is, that the sami^ person shall not be buyer and seller; but here the * sherifi" is the seller:" [ * 200 ] Stratford v. Tinjnam, Jac. 421. IMoreover, it has been held that a mere creditor, having his debt secured by an agreement from the debtor to convey an estate upon trust for the creditor to sell, and amongst others to pay his own debt, is not in such a fiduciary position as to be disabled from piu'chasing the estate from the agent of his debtor: Chambers v Waters, 3 Sim. 42; Coop. Ca. t. Brougham, 91; *S. C, nom. Waters v. Groom, 11 C. & F. 684. With regard to transactions between guardian and ward. Lord Hardwicke observed, in Oldin v. Samborn, 2 Atk. 15, that it was improper for a guardian to purchase his ward's estate immediately upon his coming of age. But although it had a suspicious look, yet if he were paid the full consideration, it was not voluntary, and could not be set aside. See Hylton v. Hylton, 2 Ves. 549. In Carey v. Carey, 2 S. & L. 173, [The presumption of undue influence is of the highest degree in the case of guardian and ward: Cowee v. Cornell, 75 N. Y. 99; Farmer r. Farmer, 39 N. J. Eq. 211,] lease- holds belonging to an infant were sold under a decree of the Court, and purchased by his guardian in the suit, who acted also as re- ceiver. The sale was set aside, although the full value was given, and decreed fraudulent and void, it being wholly unnecessary, as there were funds sufticient for the purposes to which the purchase- money was to be applied; and the old lease having been surrendered, and a new one obtained, it was declared to be held in trust for the persons entitled to the former lease. See also Dauson v. Massey, 2 Ball & B. 219. And Lord St. Leonards says, with reference to Lord Hardivicke^s observation in Oldin v. Samborn, that " it seems clear that such a purchase would now be set aside on general principles, withoiit reference to the adequacy of consideration:" Sugd. V. & P. 092, 14th ed. In a recent case, a young lady, two 3'ears after she came of age, granted a mining lease as to part of the property in possession, and as to the rest in' reversion, to her brother-in-law and uncle, at the suggestion and advice of her father's executor, and with no inde- pendent advice. Three months afterwards the executor Avas taken into partnership with the lessees. It appeared that applications of 267 * 207 FOX V. MACKRETH. other persons to become lessees had been discountenanced, and con- cealed from the knowledge of the lady. It was held by Sir John Romilhj, M.R., that, in order to support the lease in equity, the les- sees were bound to show that no better terms could have been ob- tained; that the grantor had the fullest information on the subject; that she had separate, independent, and disinterested advice; and that she had deliberately and intentionally made the grant; and, the lessees having failed in proving this, the lease was cancelled: — Grosvenor v. Sherratt, 28 Beav. 659; MulhalUn \. 31 arum, [ *207 J * 3 Dru. & W. 317; Archer v. Hudson, 7 Beav. 560. [See Blackmore v. Shelby, 8 Humph. 439; Bostwick v. Atkins, 8 Oomstock, 53.] See also Loiu v. Holmes, 8 Ir. Ch. Rep. 53. If a auardian buys up incumbrances upon his ward's estate at an undervalue, he will be held a trustee for his ward, and can only charge him with what he has actually paid: Henley v. , 2 Ch. Ca. 245. The principle of these cases has been acted upon by the Legis- lature, which, under the General Inclosure Act (41 Geo. 3, c. 109, s. 2), has rendered commissioners incapable of purchasing any estate in the parish in which an inclosure is made until five years after the date and execution of the award. And under the Com- mons Inclosure Act (8 & 9 Vict. c. 118, s. 219), a similar prohibi- tion prevents valuers from purchasing land' until after seven years from the confirmation of the award. Where trustees for sale in proceedings under sections 8 and 9 of the Lands Clauses Act, 1845, appoint one of themselves as surveyor for the purposes of valuation, the sale will be invalid, inasmuch as the valuers are placed in that position for the purpose of being a check on the persons to whom the power is intrusted, and it would be contrary to any principle of right that one of those persons should exercise the power by himself : Peters v. Leives and East Grinstead Raihvay Co., 18 Ch. D. 429. Although there be no particular relation between the parties such as that of trustee and cestui que trust, principal and agent, solicitor and client, if there exist a confidence between them, of such a char- acter as enables the person in whom confidence or trust is reposed to exert influence over the person trusting him, the Court will not allow any transaction between the parties to stand unless there have been the fullest and fairest explanation and communication of every par- ticular resting in the breast of the one who seeks to establish a con- tract with the person so trusting him. See Tate v. Williamson, 2 L. Pt. Ch. App. 55; 2 Set. Dec. 1353, 1354, 4th ed. There Tate, a young man aged twenty-three, entitled to a moiety of a freehold estate, the entirety of which brought in about 440L a year, being pressed for payment of his college debts, amounting to about lOOOZ., and being estranged from his father, wrote to his great uncle for advice and assistance as to the payment of the debts. The uncle de- puted the defendant, his nephew, to see Tate on the subject. The 268 FOX V. MACKRETH. * 208 defendant met Tato, by appointment, and at this interview Tatn re- fused to allow any attempt to compromise the dol)ts, and said he would sell his moiety of the estate, npon which the defendant oiVered him 7000/. for it, payable by instalments. Tate, next day, accepted the offer. Before an ac^reement had l)een signed, the defendant obtained a * valuation by a surveyor, osli- [ * 208 J mating the value of the minesunder the entirety at 20,000/. The sale was completed without this valuation having ever l)een communicated to Tate. Tate's heir filed a bill to imjieach the sale, and it was held by Lord Chelmsford, C, affirming the decision of Sir W. Page Wood, V.-C. (reported 1 Law Rep. Eq. 528), that the defendant had stood in a fiduciary relation to Tate, that made it his duty to communicate to him all material information which he acquired att'ecting the value of the property, and that as he bad not communicated the valuation to Tate, the transaction must be set aside. See also Hobday v. Peters, 28 Beav. 349. [A ward may make a gift to his guardian if it has been made upon a fair and well informed consideration, but as a general rule it will not be allowed to stand, although there may be no evidence of actual un- fairness: Sames r. Skinner, 16 Mass. 348; Garvin v. AVilliams, 50 Mo. 206; Richardson r. Linney, B. Mon. 571; Andrews v. Jones, 10 Ala. 400.] There is not much anthority upon the question, how far relatives of a trustee can deal with him in respect of the trust property. In Ferraby v. Hobson, 2 Ph. 255, 261, a lease to a sister of one of two trustees was held good, where the facts which appeared in evidence completely removed all suspicion. Lord Cottenham, however, in his judgment, said, "that trustees expose themselves to great peril in allowing their own relatives to intervene in any matter connected with the execution of the trust; for the suspicion which that cir- cumstance is calculated to excite, where there is any other fact to confirm it, is one which it would require a very strong case to re- move." See Coles v. Trecothick, 9 Ves. 234. Ex parte Skinner, 2 Mer. 453, 457. Where no fiduciary relation exists between the parties, in the ab- sence of fraud, mere inadequency of consideration, although the vendor may have no professional adviser, will not be a sufficient reason for setting aside a sale (Harrison v. Guest, 6 De G. M. & G. 424; 8 Ho. Lo. Ca. 481); but inadequacy of price, the want of due protection and advice, precipitation in concluding and carrying out the bargain, especially when the vendor is poor and illiterate, may be held to be sufficient evidence of fraud on the jiart of the pur- chaser, so, as to enable the vendor or his heiT to set aside the sale. Longmate v Ledger, 2 Giff. 157; Clark v. Malpas, 31 Beav. 80; 4 De G. i. & F. 401:' Douglas v. C ulvericell, 10 W. R. (V.-C. S.) 189; Baker v. Monk, 33 Beav. 419; 4 De G. J. & S. 388; Frees v. Coke, 6 L. R. Ch. App. 645. Where a person standing in a fiduciary position purchases at a 269 * 209 . FOX V. MACKRETH. sale, which takes place by order of the Court, ah hough such sale has been absolutely contiruied, the Sale of Land by Auction Act, 1861 (30 «fc 31 Vict. c. 48, s. i) will not l)e a bar to its being set aside: Guest v. Sinythe, 5 L R. Ch. App. 551. Delvesv. Delves, 20 L. E. Eq. 77; and where such person has by the suppression of facts obtained the approval of the Court to a sale, it will be set aside: [A purchase at a foreclosure sale may be valid: Adams u. La Rose, 75 Ind. 471 or one indirectly through a third party. Creveling v. Fritts, 34, N. J. Eq. 134.] Bosivellw Coakes, [*209] W. N. *Aug. 9, 1884, reversing on difPerent grounds, S. a 23 Ch. D. 302. Nature of Relief granted by Courts of Equity.] — It remains to consider the nature of the relief a Court of Equity will grant against a trustee or other person who has made a purchase which is im- proper, according to the rules before laid down, and upon what terms that relief will be granted. Any of the cestuis que trust (under which term are comprehend- ed the persons entitled to the property before the sale, or their rep- resentatives), if they wish it, can insist upon a reconveyance of the . property from the trustee who purchased, if it remains in his hands unsold. (York Buildings Company v. Mackenzie,*^ Bro. P. C. 42, Toml. ed. ; Lord Hardivicke v. Vernon, 4 Ves. 411; Randall v. Er- ringfon, 10 Ves. 423; Hamilton v. Wright, 9 C. & F. 123); or from a person who has purchased from him with notice: Attorney -General V. Lord Dudley, Coop. 146; Dunbar v. Tredennick, 2 Ball. & B. 304; Pearson v. Benson, 28 Beav. 598. [See Hoffman v. Coal Co., 16 Md. 456; Bobbins v. Bates, 4 Cush. 104; Lazaruss Lessee v- Bryson, 3 Binney, 54.] But the reconveyance will only be decreed upon the terms of their repaying the purchase-money, with interest at 4Z. per cent., and all sums which may have been expended in repairs and im- yjrovements of a permanent and lasting nature, and also such as hate a tendency to bring the estate to a better sale. On the other hand, there must be an allowance for acts that deteriorate the value of the estate, and the trustee must account for all rents received by him, and for all profits, such as money arising from the sale of tim- ber; and he must also pay an occupation rent for such part of the estate as may have been in his actual possession: Hall v. Hallett, 1 Cox, 134; Ex parte Hughes, 6 Ves. 624, 625; Campbell v. Walker, 5 Ves. 682; Ex parte Bennett, 10 Ves. 400, 401 ; Robinson v. Ridley, 6 Madd. 2; Ex parte James, 8 Ves. 351; Ex parte Lacey, 6 Ves. 630; Watson V. Too7ie,(j Madd. 153; York Buildings Comjmny v. Mac- kenzie, 8 Bro. P. C. 42, Toml. ed. ; Mill v. Hill, 3 H. L. Cas. 869: and see Popham v. Exham, 10 Ir. Ch. Rep. 440, and the form of decree given. In estimating improvements, old buildings, if incapable of repair, should be valued as old materials, but otherwise as buildings standing: Robinson v. Ridley, 6 Madd. 2. . 270 FOX tJ. MACKRETU. . *210 When, however, the sale has been set aside for actual fraud, no allowauce will, ordinarily, be made for money laid out in improving the estate {Keiiney v, Browne, 3 Ridg. 518; Stratum v. Murphy, \ Tr. Rep. Eq. 3G1 ; but see Oliver v. Court, 8 Price, 172), but an allow- ance will be made for necessary repairs: Baugh v. Price, 1 G. Wils. 320. Although the purchaser has paid * the pvarchase-mouey [ * 210 ] into Court, and it has been invested in the funds, he will not be entitled to any benefit from any advance in the funds, but to his purchase- money and interest only, for, if the stock had fal- len, instead of advancing, ho could not have been compelled to take it: Ex parte James, 8 Ves. 351. It seems that where a reconveyance by the purchaser is directed, it must, unless a lien be given to liim for the balance on taking the accounts, be made at once before the accounts are taken {Trevelyan V. Charter, 9 Beav. 140), and a solicitor, a sale to whom from his clients was set aside, has been compelled to produce the title-deeds before payment: Shallcross v. Weaver, 12 Beav. 272; 2 Hall & T. 231. In a great case upon an appeal from the Court of Session in Scotland ( York Buildings Company v. Mackenzie, 8 Bro. P. C. 42, . Toml. ed. ), the reconveyance was ordered, without prejudice to the titles and interests of the lessees and others who might have con- tracted with the defendant bonCt fide, and before the commence- ment of the suit. Lord St. Leonards, apparently thinking that this part of the decree infringed upon the doctrine that purchasers from the defendant (including lessees), who took with notice, ought to be equally liable to have their transactions with him set aside, accounts for the exception in their favour, upon two grounds: the one, that no notice was charged on the lessees, nor were the leases attempted to be impeached; moreover, that the relief sought bad been delayed for many years; and that the point established by the House of Lords was, to sav the least, a new doctrine with reference to Scotland: 3 Sug. V. & P. 243, 10th ed. It must, however, be observed, that the exception in the decree was only in favour of lessees and others who had contracted bond fi,de, words which would, it seems, be sufficient to exclude lessees and others who had taken with notice of the equity which the plaintiffs had against the defendant, although, as they were not parties to the suit, it would have been necessary to have taken proceedings against them, alleging and proving notice, in order to set aside the leases granted to them by the defendant. If the cestui que trust does not wish for a reconveyance of the property, an order will be made, that the expense of repairs and im- provements not only substantial and lasting, but such as have a tendency to bring the estate to a better sale, after making an allow- auce for acts that deteriorate the value of the estate, shall be added to the purchase- money, and that the estate shall be put up at the 271 * 212 FOX V. MACKRETH, accumulated sum; if any one makes an advance upon that [* 211 ] sum, * the trustee shall not have the estate; if no one does, he will be held to his purchase; {Ex j)arte Reynolds, 5 Ves. 707 ; Ex j^cirte Hughes ; Ex parte Lacey ; Lister v. Lister, 6 Ves. 617, 625,631; Ex j^wte Bennett, 10 Ves. 281; Ex parte Hew- itt_, 2 Mont. & Ayr. 477; Stepney v. Biddulph, 18 \\ . K. (V.-C. ^\ .) 576; Tennant v. Trenchard,4: L. R. Ch. App. 546); but where the trustee has bought the estate in one lot, and the cestuis que trust are desirous of having it sold in several lots, the cestuis que trust must first repay him all the money he has advanced, with interest, he accounting for the rents received by him, or paying an occupa- tion rent, if he actually occupied the estate: Ex parte James, 8 Ves. 351. Where the trustee has resold the estate, the cestui que trust can, as in the principal case, make him account for what he has re- ceived over and above the purchase- money he himself paid, with in- terest at 4Z. per cent. {Ex j^ctt'te Reynolds, 5 Ves. 707 ; Hall v. Hallet, 1 Cox, 134] ; and no allowance will be made to him for any loss he has incurred in the investment of what he received: Armstrong v. Armstrong, 7 L. R. I. 207. The costs of the suit, where the sale is set aside, must be paid by the trustee; {Sanderson v. Walker, 13 Ves. 601; Hall v. Hallet, 1 Cox, 141; Whichcote v. Lawrence, 3 Ves. 740; Dunbar v. Treden- nick, 2 Ball & B. 304; see, however, Baker v. Carter, 1 Y. & C. Exch. Ca. 250; Doivnes y. Grazehrook, 3 Mer. 209); unless there has been great delay on the part of the cestui que trust: Attorney- General v. Lord Dudley, Coop. 146. And even if the cestui que trust fails to set aside the sale, on account of his own delay, the Court may refuse the trustee his costs: Gregory v. Gregory, Coop. 201 ; Champion v. Righy, 1 Russ. & My. 539. As to costs, when a trustee is accused of actual fraud not made out, see Parker v. Mackenna, 10 L. R. Ch. App. 96, 129. Acquiescence.^ — A cestui que trust who wishes to set aside a pur- chase by a trustee must apply within a reasonable period, Campbell V Walker, 5 Ves. 680, 682,) [Alexander v. Alexander, 46 Ga., 291; Harrison v. McHenry, 9 Ga. 164,] which is in general less than the time allowed by the Statute of Limitations {Morse v. Royal, 12 Ves. 374), and depends upon the circumstances of each particular case. Thus mere lapse of time for a long period, which will of itself bo evidence of acquiescence, in an improper transaction, will disable a person from coming into a Court of equity to set it aside; [A court of equity discourages stale claims, and a party loses his right to complain of a fraud by delay: Rath v. Vanderlyn, 44 Mich. 597.] Morse v. Rogal, 12 Ves. 355; Price v. Byrne, cited with approba- tion by Lord Alvanley in Campbell v. Walker, 5 Ves. 631; Cham- pion V. Rigby, 1 Kuss, & My. 539; Robei-tsv. Tunstall,^ [ *212 ] Hare, 257; Beaden v. King, 9 *Hare, 499, 532; Baker v. 272 FOX V. MACKRETH. * 21 2 Read, 18 Boav. 30(S: Marquis of ClanricarcJo v. Hp.nning, 80 Beav. 175; Wenticorlhw Lloyd, '62 Boav. 407; Atf. Dom. Proc. 10 Jur. N. S. 901; In re McKenna's Estate, 18 Ir. Ch. Rt'p. 280; Barter II v. Bartvell, 34 Beav. 871; and see Seagram v. Knight, 3 JL. R. Eq. 898, varied on appeal, 2 L. R. Ch. App. 028. For long acquiescence under a sale to a trustee, ought to be taken as evidence, that as between the trustee and cestui que trust, the trustee and cestui que trust, the relation had been abandoned in the transaction; and that in all other respects it was fair; per Lord Eldon, C, in Parkes v. White, 11 Ves. 220. Where there are other circumstances, showing acquiescence be- yond the mere la[)se of time, a delay for a shorter period will be a bar to relief, Wright y. Vanderplank, 2 K. & J. 1; Bakery. Brad- ley, 7 De G. Mac. & G. 597. [In many cases courts of equity have taken the statutes of limitations as standards by which to measure the lapse of time allowed for the assertion of an equit- able right, but chancery will apply their own doctrine when- ever the case requires it: Buckingham v. Lundlow, 37 N. J. Eq. 138; Kerr on Fraud and Mistake, 804; Bell v. Moon, 79 Ya. 841; Alloro V. Jewell, 4 Otto, 512, AVilson v. Anthony, 19 Ark. 10; John- son V. Johnson, 5 Ala. 90; Ferson v. Sanger, 22 Ware, 250.J It has been laid down by an eminent judge that "to fix acquies- cence upon a party, it should unequivocally appear that he knew the fact upon which the supposed acquiescence is founded, abd to which it refers," per Sir William Grant, M. R., in Randall v. Er- ringtoii, 10 Ves. 428: see also, Chalmer v. Bradley, 1 J. & "W. 51; Trevelyan v. Charter, 9 Beav. 140; S. C, 11 C. & F. 714; 4 L. J. (N. S.) Ch. 209; Saveryy. King, 5 H. L. Cas. 024, 007; De Bussche V. Alt, 8 Ch. D. 286. It seems, however, that there may be cases in which, from the great lapse of time, the knowledge of such facts ought to be presumed: Life Association of Scotland v. Siddell, 8 De G. F. & Jos. 58; and see and consider Knight v. Majoribanks, 11 Beav. 322, 2 Mac. & G. 10. The distress of the cestui que trust may be an excuse for acqui- escence; {Gregory y. Gregory, Coop. 201; Roche v. O^Brien, 1 Ball & B. 342; Robeiis v. Tiinstall, 4 Hare, 257, 207; Gresley v. Mousley, 4 De G. & Jo. 78, 98, eed vide Life Association of Scotland v. Siddell, 3 De G. F. & J. 58); but it has been held that the imputation of laches does not in an equal degree apply to a body of creditors, to whom relief will be granted when it would be refused to an indi- vidual: see case in the Exchequer, cited Ves. 082; Whichcote v. Laivrcnce, 3 Ves. 740;' York Buildings Company v. Mackenzie, 8 Bro. P. C. 42, Toml. ed. But even creditors have been refused relief when their laches have been gross; as for instance, where they acquiesced in a sale for thirty- three years: Hercy v. Dimvoody, 2 Ves. Jun. 87. And in considering lapse of time it only commences to run from the discovery of the circumstances giving the title to relief ( Tre- 18 WHITK ox EQUITY. 273 * 213 FOX V. MACKRETH. vehjanv. Charter, 9 Beav. 140; 11 C. & F. 714; 4 L. J. (N. S.) Ch. 209; The Marquis of Clanricarde v. Henning, 30 [*213] Beav. 175; * Vane v. Vane, 8 L. E. Ch. App. 383); and against a person under disal)ility from tho time they be- come sni juris: Campbell v. Walker, 5 Ves. 678, 682; Randall v. Errington, 10 Ves. 427; Morse \. Royal, 12 Ves. 373. Bat femes covert are considered as femes sole with regard to prop- erty to which they are entitled to their separate use, unless it be settled without power of anticipation. See Hulme v. Tenant, and note, posi Nor will time in general run against a party so long as his inter- est is contingent or reversionary ( Gowland v. De Faria, 17 Ves. 20; Bennett v. Colleij, 5 Sim. 191 ; Duke of Leeds v. Lord Amherst, 2 Ph. 117; Broitvie v. Cross, 14 Beav. 105; Ho2:>e v. Liddell, 21 Beav. 183; Life Association of Scotland v. Siddal, 3De G. F. & Jo. 58, 7. Jur. N. S. 785; Boiven v. Evans, 1 Jo. & L. 178), or dependent on the will of the trustee making the purchase (Roberts v. Tunstall, 4 Hare, 257), but the fact of the interest being reversionary does no^. prevent tho party interested assenting to a breach of trust: Life As- sociation of Scotland v. Siddal, 3 De G. F. & Jo. 58. And where fraud has been established against a party, it is for him, if he alleges laches in tho other party, to show when the latter acquired a knowledge of the truth, and prove that he knowingly forbore to assert his right: The Lindsay Petroleum Comijany v. Hind, 5 L. E. P. C. 221. Although acquiescence in an improper sale may have the efPect of not enabling a party to set it aside, it nevertheless will not be suf- ficient to induce a court of equity to exercise its discretionary power of compelling specific performance of the agreement to sell: Salmon V. Cutis, Cutts V. Salmon, 4 De G. & Sm, 125. Where a bill to set aside a purchase by a solicitor from his client is dismissed on the ground of lapse of time, the Court gives the solicitor no costs unless he proves the fairness of the transaction: The Marquis of Clanricarde v. Henning, 30 Beav. 175. Confirmation.^ — -A cestui que trust, if sui juris (Campbell x. Walker, 5 Ves. 678, 682) may confirm an invalid sale, so that he cannot afterwards set it aside: Morsey. Palmer, 12 Ves. 353; Roche V. O'Brien, 1 Ball & B. 353; Dover v. Buck, 5 Giff. 57. [The right to impeach a transaction on the ground of fraud may be lost by confirmation, but when such a defence is relied on it must clearly appear that the party confirming was fully apprised of his right to impeach the transaction: Kerr on Fraud and Mistake, 286.] And a feme covert as to property to which she is entitled to her separate use without any fetter upon anticipation, has the same power as a feme sole: Hulme v. Tenant, and note, post; and as to real prop- erty not so settled, she can by deed executed under the Fines and Recoveries Act (3 & 4 Will. 4, c. 74), confiz-m such sale. 274 FOX V. MACKKETII. * -^14 But in order to constitute a valid confirmation, a person must be aware * that the act he is doing will have the ef- [ * 214 ] feet of coniirming an impeachable transaction: Murray v. Palmer, 2 S. & L. 480; Dunbar v. Tredennick, 2 Ball & B. 317; Maloney v. JJ Estrange, 1 Beat. 413; Adams v. Clifton, I Russ. 2'.J7; Cockerellw. Cholmeley, 1 Buss, k, My. 425; Chalmer v. Bradley, 1 J. W. 51; De Montmorency \. Devereu.r, 7 C, & F. 188; Salmon v. Cutts, 4 De G. & Sm. 129; ,S'^it»i/> v. rra6?/, 2 De Gex, Mac. & G. 028, loafers v. T/iorn, 22 Beav. 547; Lloyd v. Attwood, 3 De G. & Jo. 650; and see Lyddon v. Moss, 4 De G. & Jo. 104; Kemjwon v. Ashbee, 10 L. K Ch. App. 15. Nor will the act of confirmation be valid, if it be done in distress and difficulties, under the force pressure and influence of the former transaction (Crowe v. Ballard, 3 Bro. C. C. 139; Wood v. Doirnes, 13 Ves. 128; Roche v. O'Brien, 1 Ball & B. 330; Roberts v. Tun- stall, 4 Hare, 257): and it must bean act separate and distinct from the impeachable transaction, and not, as in the principal case, a conveyance executed in consequence of a contract or covenant con- nected with it: Morse v. Royal, 12 Ves. 370; Wood v. Doivnes, 18 Ves. 124, 128; Roche v. O'Brien, 1 Ball & B. 338. [A defrauded party cannot both affirm and rescind a contract; he may elect be- tween the two and if be chooses, do the latter. Any act by which, with knowledge of the fraud he treats the con- tract as subsisting, will be an affirmation precluding rescission: Hi^gs V. Smith, 3 A. K. Marsh, 388; Evans r. Foreman, GO Mo. 449; Cobbs v. Hatfield, 46 N. Y. 533; Jackson v. Jackson, 47 Ga. 99. Doctrine of Purchase by a Trustee for Sale, Restated. — The re- lation of trustee and cestui que trust is one of peculiar confidence. The trustee, owing to his position, has an ample opportunity to ob- tain a thorough knowledge of the present and prospective value of the trust property, which knowledge the cestui que trust not being actively engaged in the management of the estate has not the means of obtaining. The rule generally is, that a trustee cannot purchase any part of the trust estate or accept a gift from the cestui que trust, and if he does purchase, the transaction is gener- ally voidable at the option of the cestui que ti^ust. The above rule is due in a large measure to the fact that the trustee stands in such a position as to acquire an habitual influence over the cestui que, and the trustee cannot for that reason accept a personal benefit without exposing himself to the risk of having it set aside as being unduly obtained. Courts of Equity look with extreme jealousy on transactions be- tween parties whostand in any fiduciary relation or relations of a similar character by which an undue influence may be obtained by one over the other, and unless the person who received the benefit can show that it was conferred understandingly and with a full 275 * 215 LAKE V. GIBSON. knowledge of the circumstances and apart from the bias of that connection equity will set the entire transaction aside. The parties between whom this confidential relation is supposf'd to exist are trustee and cestui que trust, guardian and ward, parent and child, solicitor and client, medical or religious advisors, princi- pal and agent, husband and wife, executors and administrators, directors of a corporation, of a society, and all others who occupy a position of trust and confidence towards others. This rule does not apply however, to a person who has been named as a trustee but who has disclaimed without having acted in the trust: Lewin on Trusts, 630 (Text Book Series).] A confirmation of an invalid sale, by the majority of the creditors of a bankrupt, will not be binding upon the minority: in order to be binding all must join therein : see Ex parte Lacey, 6 Ves. 628 ; aSm' G. Colehrooke' s case, cited Ex parte Hughes, 6 Ves. 622, over- ruling Whelpdale v. Cookson, cited in Campbell v. Walker, 5 Ves. 682; S. a, 1 Ves. 9: Ex parte Thwaites, 1 M. & A. 323: Tommey V. White, 3 H. L. Cas. 49. [*215] *LAKE X. GIBSON. Tri7i. Term, 1729. [reported 1 EQ. CAS. AB. 294, PL. 3.] Joint Purchasers.] — Where several persons make a joint purchase for the purposes of a joint undertaking or partnership, either in trade or any other dealing, although they are joint-tenants at law, in equity they ivill he considered as tenants in common, and the survivors as trustees for those tvho are dead. The Commissioners of Sewers had sold and conveyed lands to five persons and their heirs, who afterwards, in order to improve and cultivate those lands, entered into articles whereby they agreed to be equally concerned as to profit and loss, and to advance each of them such a sum to be laid out in the manurance and improvement of the land. Sir Joseph Jekyll, M. E.., held that they were tenants in common, 276 LAKE V. CRADDOCK. * 317 and not joint tenants, as to the beneficial interest or right in thoBO lands, and that the survivor should not go away with the whole; for then it might happen that some might have paid or laid out their share of the money, and others, who had laid out nothing, go away with the whole estate. And his Honor held, that when two or more purchase lands, and advance the money in equal proportions, and take a conveyance to them and their heirs, that this is a joint-tenancy; that is, a purchase by them jointly of the chance of survivorship, which may happen to the one of them as well as to the other; but where the propor- tions of the money are not equal, and this appears in the deed itself, this makes them in the nature of jjartners; and * however the legal estate may survive, yet the survivor [ * 216] shall be considered but as a trustee for the others, in pro- portion to the sums advanced by each of them. Sb, if two or more make a joint purchase and afterwards one of them lays out a considerable sum of money in repairs or improve- ments, and dies, this shall be a lien on the land, and a trust for the representative of him who advanced it; and that in all other cases of a joint undertaking or partnership, either in trade or any other dealing, they were to be considered as tenants in common, or the survivors as trustees for those who were dead. * LAKE V. CRADDOCK. [ * 217 ] {On an Appeal from the Decree at the Rolls in Lake z). GlBSOI!f.) Be Term. S. Michaelis, 1732. [reported 3 p. WMS. 158.J Joint Purchasers. ] — BHve persods purchased West Thorock Level from the Commissioners of Stivers, and the purchase teas to them as joint tenants in fee; but they contributed rateably to the pur- chase, ivhich was with an intent to drain the^evel; after which several of them died. They were held to be tenants in common in equity; and though one of these five undertakers deserted the partnership for thirty years, yet he ivas let in afterwards, on terms. 277 *; 218 LAKE V. CRADDOCK. The case was thus: Great part of the lands in "West Thorock,1n Essex, having been overflowed by the River Thames near Dagen- ham, and the landowners not thinking it worth their while to pay the assessments made on them by the Commissioners of Sewers, the Commissioners decreed the lands to be forfeited, and conveyed them to three trustees in trust to sell, and raise money for the draining of these overflowed lands. The defendant Craddock's father, the plaintiff Lake, and three others, five in all, having entered into an undertaking to drain the level or overflowed lands of West Thorock, the trustees for the sale, by the consent and direction of the Commissioners of Sewers, did, by deed, indented and enrolled, dated the 8th of February, 1G95, in consideration of 5145Z. paid to the Commissioners by the five pur- chasers, convey this level to the defendant Craddock's father, the plaintiff Lake, the three others, and their heirs; upon [ * 218 ] which several sums of money were * expended in carrying on the undertaking; and in 1699, the defendant Crad- dock's father paid his last contribution, which, with what he had ad- vanced before, came in all to 1025Z. Afterwards, it seeming to be an enterprise which would prove very expensive, and there being some uncertainty as to the success of it, the defendant Craddock's father wholly deserted it, and never more concerned himself therewith. The four other undertakers were advised that some neighbour- ing lands would be of service to their design; upon which, in April, 1703, they purchased the manor of Porretshalls, in West Thorock, of the Lady Smith, for 2550Z., and in February following purchased the moiety of the rectory and tithes of West Thorock for 1400Z. of Sir Charles Tyrrell; which two purchases were thought useful in the undertaking, and were made in the names of the four under- takers, omitting Craddock; nor did it appear that he was ever con- sulted therein, or desired to contribute to the purchase. Craddock, the father, died, leaving the defendant Craddock, the son, his heh' and executor. The plaintiff, Sir Bibye Lake, one of the original partners, brought this bill against the rest of the partners, or their representatives, for an account and division of the partnership estate. And on the first coming on of the cause, at the Eolls, his Honor referred it to the Master to state a case between the parties, for the judgment of the Court. And the Master having made his report, the cause was 278 LAKE V. CRADDOCK. * 219 thereupon heard, when the principal, or rather the only question was, whether these five purchasers paving uiado this purchase jointly, so as to become in law joint tenants, the same should sur- vive in equity? Sir Joseph Jekyll, M. K., on debate, decreed that the survivorRhij) should not take place; for that the payment of money created a trust for the parties advancing the same; and an undertaking upon the hazard of profit or loss was in the nature of merchandising {t), when the jus accrescendi is never allowed; that supposing one of the partners had laid out the whole of the money, and had * happened to die first, according to the contrary con- [* 219] struction, he must have lost all, which would have been most unjust (u). Wherefore, it was deci'eed that these five pur- chasers were tenants in common, not only as to the level lands which were first purchased, but also with respect to the lands bought afterwards by the four undertakers of the Lady Smith and Sir Charles Tyrrell: but that the defendant Craddock ought not to have the benefit of this tenancy in common, unless he would pay so much money as would make up what had been already advanced by his father equal to what had been contributed by each of the other partners, together with interest for the same from the respective times that Craddock, the father, ought to have made those pay- ments; and on the defendant Craddock's paying the same, then all the said lands to be divided into five parts, the defendant Crad- dock to have one-fifth: but, on default of payment, the defendant Craddock to bo excluded, and the lands to be divided and distribu- ted into four parts among the four other partners. Argument for the A2)2}ellant.] — From this deci'ee the defendant Craddock appealed to the Lord Chancellor King, insisting that he ought either to receive back the 1025Z., which it was admitted his father expended in this undertaking, or to be allowed to come in for a share of the level only, and not to be bound to contribute towards the two pux'chases made by the four other undertakers of the Lady Smith and Sir Charles Tyn-ell: that the four other undertakers had chosen to make these two purchases in their own names only, by which they seemed to have excluded Craddock from all concern therein, and of which, had it proved never so beneficial he would have had no means of forcing them to admit him to a share ; and {t) 1 Inst. 182; 1 Vern. 217: 2 Lev. 188. 228. (m) Sec y Ves. 549; Dale v. Hamilton, 5 Hare, 385. 279 .* 221 LAKE V. CRADDOCK. therefore, now that it had turned out a losing bargain, there could be no reason to compel him to bear a proportion of the loss. Be- sides, there was nothing in the articles empowering the partners, or the major part of them, to buy lands; and, by the same reason that they would oblige Craddock to pay his share towards these [ * 220 ] purchases, they might, if they had fancied * buying half the country, have compelled him to contribute to that also. That it was difficult to conceive how the uplands thus purchased, much less the tithes, could be of any use in the undertaking; though, as to the charge of draining the level, exclusive of the two purchases, the defendant Craddock was willing to advance his proportion. It was, moreover, pretended, that the decree was unreasonable, on account of its having directed that the defendant Craddock, in order to be admitted to one-fifth, should pay not only his propor- tion of those two purchases, but also of the interest of the purchase- money, from the time that his father ought to have made these payments: whereas the direction ought to have been, that an account should be taken of the profits of these two purchases, which profits might have amounted to as much as the interest, or, if not quite so much, yet that the defendant Craddock ought to pay no more to- wards such interest than the deficiency of the quantum of the profits would come to. Argument for the Respondent.^ — To which it was answered by Mr. Solicitor Talbot that, as the defendant Craddock's faiher and himself had for so long a time (near thirty years) relinquished and abandoned the partnership, and in regard that the defendant Crad- dock had no manner of right thereto but through the indulgence of a court of equity (it being, by law, a joint tenancy, and as such, belonging to the sui'vivors), it was a favourable decree to let him in upon any terms; and surely the terms now offered him must appear reasonable, viz., that he should, upon his contributing to all the expenses that had been contracted and incurred by reason of any purchases or otherwise, in the prosecution of the undertaking, be admitted to one-fifth of the partnership; that had the defendant Craddock brought his bill for the benefit of such undertaking, he could not have hoped to succeed on any other conditions: that it was still stronger against him, in that he now seemed to decline meddling with the undertaking, so that here was rather great favour shown him than any hardship imposed: that he was not [ * 221 ] absolutely and at all events bound by this * decree to pay 280 LAKE V. CRADDOCK. * 222 his proportion towards the new purchases, but had it in his elec- tion whether he would do it or no : that as to the interest which was required of him previous to his being admitted into the part- nership, it was reasonable he should pay it for his default in not having contributed his share of the principal before, which if he had done, he would not have been charged with the interest; and this was some disadvantage to the other four partners, who had been deprived of their arrear of interest for near thirty-five years : that, in truth, the design of the defendant Craddock appeared to be to delay matters, and to defer the bringing in of his money and interest till such time as this long account of the profits should be taken, which would require many years ; and that if the defendant's share of the profits of these two- purchases should exceed his pro- portion of the interest, the surplus, on the making up of the accounts, must be paid him. For these reasons, the decree of the Master of the Rolls was af- firmed. Lord Chancellor King (v) said, that this was plainly a tenancy in common in equity, though otherwise at law; and the defendant Craddock having only a title in equity, that he must do equity, and that this was equitable in all its branches; for he had his election to drop all claim, or to take it on the same foot with the rest of the partners; and that it was not reasonable that he should be let into the account of the profits or loss of the undertaking until he had made his election. It is an invariable rule at law, that, when pui-chasers take a con- veyance to themselves and their heirs, they will be joint tenants: and, upon the death of one of them, the estate will go to the survivor. See Litt. s. 280. The same rule prevails in equity, except where circumstances exist from which the rule of law is controlled by the presumed intention of the parties. Thus, as is laid down by Sir Joseph Jekyll in Lake v. Gibson, where two or more * purchase lands and [ * 222] advance the purchase-money in equal proportions, and take a conveyance to them and their heirs, they will be held joint tenants in equity as well as at law, upon this principle, that it may be pre- sumed they intended to purchase jointly the chance of survivorship. The rule of law, therefore, not being repugnant to the presumed in- (v) This judgment is from Sug. V. & P. 903, 11th edit., and is there stated to have been taken from unprinted MS. 281 * 222 LAKE V. CRADDOCK. tention of the parties, will be followed in equity. See Taylor v. Fleming, cited in York v. Eaton, Freem. 23; Rigden v. Vallier, 3 Atk. 735; S. C, 2 Ves. 258; Rea v. Williams, Sngd. V. & P., App. No. xxi., 11th ed. See Rex v. Williams, Bunb. 342; Harris v. Fer- gusson, 16 Sim. 308; Robinson v. Preston, 4 K. & J. 505. [Ensley V. Ballentine, 4 Humph. 233; Bank of America v. Pollock, 4 Edw. Ch. 415: Campbell v. Drake, 4 Ired. Eq. 94.] Upon the i-ame principle, where persons have entered into a joint contract for the purchase of an estate to them and their heirs, and have paid or contracted to pay the purchase-money in equal projjcr- tions, a court ef equity will not, upon the death of one of them, de- cree a conveyance to the survivor and the heirs of the deceased pur- chaser as tenants in common; for if both parties to the contract eon- tribute equally towards the purchase-money, the surviving purchaser will be solely entitled to the benefit of the contract, and to have a conveyance of the estate decreed to himself alone. [It is a familiar doctrine of the common law that joint ownership of either real or personal property, when of the intimate sort, termed joint tenancy, is not severed by death ; but when one of the owners dies, his inter- est goes to the survivor or survivors and nothing to the heir or ad- ministrators until the death of the last joint owner, then all vests in the latter's heir or administrators: 4 Kent's Com. 360, 2 Blks. Com. 184, 183, 399.] See Aveling v. Kni2oe, 19 Ves. 441, where Sir W. Grant, M. E., observed that a doubt had been suggested whether a court of equity would in any case execute such an agreement by a conveyance in joint-tenancy. " It would not," observed his Honor, " if there were any circumstances from which it could be collected that a joint-tenancy was not in contemplation; but I have no con- ception that it is of course upon a controversy between two purchasers to depart from the letter of the agreement, and decree them to be tenants in common." And see Davis v. Symonds, 1 Cox. 402. In equity, however, there is a strong leaning against joint-tenancy; and whenever circumstances occur from which it can reasonably be implied that a tenancy in common was intended, a Court of equity will hold the survivors of joint purchasers tru-tees of the legal estate for the representatives of the deceased purchaser. [Courts of equity sometimes treat joint contracts as several and thus transmit a right or obligation to the administrator of the deceased party: 1 Stoi-y's Eq. sec. 162, 164; Mowry v. Adams, 14 Mass. 327; Gere r. Clark, 6 Hill (N. Y. ) 350.J In Lake v. Gibson, Sir Joseph Jekyll lays»it down as a general rule, that, where two or more purchase lands and advance the pur- chase-money in unequal proportions, and this appears on the deed itself, this makes them in the nature of partners, and, however the legal estate may survive, yet the survivor will be considered in equity but as a trustee for the other, in proportion to the sums advanced by each of them. See also Rigden v. Vallier, 3 Atk. 735; /S. C, 2 Ves. 258. The soundness of the distinction between equal 282 LAKE V. CRADDOCK. * 223 and wioqua advances is doubted by Mr. ''■ Veaey, in a note [ * 223 | to Jackson v. Jackson, D Ves. 507. But it has l)een sup- ported by Lord St. Leonards, see Suo:d. V. & P. 902, 11th ed.; lltli edit. 698. Sed \ide Hams v. Fergussoii, 16 Sim. 308. Explained, however, in Robinson v. Preston, 4 K. & J. 515. It will l>e observed, that Sir Joseph Jekyll qualifies the general rule laid down in the principal case of Lake v. Gibson by the words "and this appears upon the deed itself." Lord Hardicicke, however, lays down the same rule without this qualification : lilgdcn v. Vallier, 3 Atk. 735; 2 Ves. 258; and see Harrison v. Barton, 1 J. & H. 293; Hill v. Hill, 8 L 11. Eq. 140. The circumstances, however, attending a purchase in the names of two persons advancing the purchase-moneys in equal proportions, may show an intention that the parties should hold as tenants in common. See Robinson v. Preston, 4 K. & J. 505. But see and consider jBone v. I^ollard, 24 Beav. 283. [A tenant in common can- not make a profit at the expense of his co-tenant : Duff v. Wilson, 22 P. F. Smith, 442; Edmund's Appeal, 18 P. F. Smith, 21.] And it seems that parol evidence of subsequent dealings, as well as of surrounding circumstances, is admissiljle on a purchase by two ])ersons contributing equally to the cost of it, to prove an intention to hold in severalty {Harrison v. Barton, 1 J. & H. 287); but it seems that parol evidence of statements of intention is not admis- sible. — lb. But see Devoy v. Devoy, 3 Sm. & G. 403. Again, where money is advanced by persons, either in equal or unequal shares, who take a mortgage to themselves jointly, although the debt and security will at law belong to the survivor, in equity there will be a tenancy in common, the survivor being a trustee for the personal representatives of the deceased mortgagees: Petty v. Sty ward, 1 Ch. Rep. 31 Eq. Ca. Ab. 290; Rigden v. Vallier, 2 Ves. 258. For "equity says it could not be the intention that the inte- rest should survive. Though they take a joint security, each means to lend his own and to take back his own:" Per Lord' Alranley, M. R., in Morley v. Bird, 3 Ves. 631; Vickers v. Coicell, 1 Beav. 529 ; OYeiTnling Brazier v. Hudson, 9 Sim. 1; and see Robinson v. Preston, 4 K. & J. 505, 511. [The Courts lay hold of every circumstance to defeat joint tenancy and convert it into tenancy in common: Brother V. Porter, 6 B. Mon. 106; Tompkins v. Mitchell, 2 Rand. 428; Barribeau v. Brant, 17 How. 43.] The personal representatives of the deceased mortgagees were therefore necessary parties to a bill of foreclosure or redemption {Vickers v. Cowell, 1 Beav. 529); and although the entire legal estate was in the survivor, they were necessary parties to a recon- veyance, in order that they might give a valid discharge for theii* share of the mortgage-money: Carth. 16. Hence it became usual, where trustees advanced money on mort- gage, to insert a declaration, that, if one of the mortgagees died before the money was paid oti, the receipt of the survivor should 283 * 224 LAKE V. CRADDOCK. [ * 224] be * a sufficient discbarge; and that the concurrence of the personal representative of the deceased mortgagee should not be requisite. [If when two tenants in common of a joint mortgage term, purchase the equity of redemption, or several engage in a joint undertaking or partnership, or trade or specula- tion, or several purchase an estate and pay for it equally, but one improves the estate at his own cost, equity will construe them to be tenants in common and not joint tenants: Pugh v. Currie, 5 Ala. 446 ; Kinsley v. Abbott, 19 Me. 430.] And if the securities were acted upon by the mortgagees this pro- viso is binding on them though they do not execute the mortgage deed : Fish. Mortg. 748, 4th ed. These objects are now effected by the 61st section of the Convey- ancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), which enacts that (1) where in a mortgage or an obligation for payment of money, or a transfer of a mortgage or of such an obligation, the sum, or any part of the sum advanced or owing is expressed to be advanced by or owing to more persons than one out of money, or a3 money belonging to them on a joint account, or a mortgage, or such an obligation, or such a transfer is made to more persons than one, jointly, and not in shares, the mortgage money, or other money, or money's worth for the time being due to those persons on the mort- gage or obligation, shall be deemed to be and remain money or money's worth belonging to those persons on a joint account as, between them and the mortgagor or obligor ; and the receipt in writing of the survivors or last survivor of them, or of the personal represeQtatives of the last survivor, shall be a complete discharge for all money or money's worth for the time being due, notwith- standing any notice to the j^ayer of a severance of the joint account. (2) This section applies only if and as far as a contrary inten- tion is not expressed in the mortgage, or obligation, or transfer, and shall have effect subject to the terms of the mortgage, or obligation, or transfer, and to the provisions therein contained. (3) This section applies only to a mortgage or obligation or transfer made after the commencement (from and immediately after the 31st December, 1881) of this Act. If joint mortgagees purchase or foreclose the equity of redemp- tion, they will be held, in equity, tenants in common, "because their intent is presumed to be so :" Rigdeny. Vallier, 2 Ves. 258. See also Edwards v. Fashion, Prec. Ch. 332 ; Aveling v. Knijje, 19 Yes. 444 ; and the comments therein of Sir Wm. Grant, M. R., on Edwards v. Fashion. Although payment of a bond debt to one of two trustees form- erly bouad both at law (Husband v. Davis, 10 C. B. 645), in case of a mortgage to two a payment to one would not discharge the estate in equity : Hall v. Franck, 11 Beav. 519 ; Wigglesicorth v. Wigglesicorth, 16 Beav. 269 ; Matson v. Dennis, 4 De G. J. & Sm. 345 ; reversing lb. 12 W. R. (V.-C. S.) 596 ; and now under the 284 LAKE V. CRADDOCK. * 226 Judicature Act (36 & 87 Vict. c. 00, s. 25, Hubs. 11) the equitable rule will [)rov!ul. * Another rule laid down by the Master of the Rolls in [ * 225 ] Lake v. Gibson is, that, in all cases of a joint undertaking or partnership, either in trade or in any other dealinjr, two or more persons who make a joint purchase will be considered in equity as tenants in common, or the survivors as trustees for the rejjresenta- tives of those who are dead. This was the ground of the decision in Lake v. Gibson, or Lake v. Craddock, which shows that a joint speculation in improving land, on a hazard of profit and loss, is treated in a court of equity, as in the nature of merchandise, and the jus accrescendi is not allowed. See In re Thomas Ryan, 3 I. R. Eq. 222, 232. In favour of merchandise it is well known that an exception to the rule of survivorship has been long established. It is thus stat- ed in Co. Litt. 182, a: — "An exception is to be made of two joint merchants: for the wares, merchandises, debts, or duties tLat they have as joint merchants or partners shall not survive, but shall go to the executors of him that deceaseth; and this ispe?- legem mer- catoriam, which (as hath been said) is part of the laws of this realm, for the advancement and continuance of commerce and trade, which is pro bono publico; for the rule is that jus accrescendi inter mer- catores pro beneficio commercii locum no7i habeV^ And see Nelson V. Bealbu, 30 Beav. 472; S. C, affirmed 4 De G. F. & J. 321; Am- bler V. Bolton, 14 L. R. Eq. 427; M' Clean v. Kennard, 9 L. R. Ch. App. 330. The exception in favour of merchants was afterwards extended to all traders; and courts of equity as before mentioned have ex- tended it to the analogous cases of real property purchased for a joint undertaking or partnership in trade, or in any other dealing. It has been remarked by Sir James Wigram, V.-C, that the conse- quences of the admission of the partnership contract were carried to a great length in Lake v. Craddock; " for one of the five original contractors," observed his Honor, "who had retired for nearly thirty years, was held bound by a subsequent contract, made by the other four, for the purchase of other lands in aid of the original de- sign;" 5 Hare, 384. Upon the same principle it has been held with some conflict of opinion, that if two persons take a lease of land for the purpose of farming it in partnership, at any rate where the lease is merely ac- cessory to the partnership, the partners will be considered in equity as tenants in common not only of the stock of the farm but of the lease, and the survivor of the two consequently would be trustee for the personal representatives of the deceased partner. See Jeffereys V. Small, 1 Vern. 217. There two persons having jointly * stocked a farm, and occupied it as joint tenants, the bill [ * 220] was to be relieved against survivorship, one of them be- ing dead, Lord Keeper North was clearly of opinion that the plain- 285 •^' 227 LAKE V. CRADDOCK. tiff ought (o bo relieved, and said that, if the farm had been taken jointly by them, and proved a good bargain, then the survivor should have ihe benefit of it; but as to a stock employed in the way of trade, that should in no case siu'vive. That the custom of merchants was extended to all traders, to exclude survivorship: and though it was common for traders in articles of co-partnership to provide against survivorship, yet that was more than was necessary, and he said, he took the distinction to be, where two became joint tenants, or jointly interested in a thing by way of gift or the like, there the same shall be subject to all the consequences of law; but as to a joint under- taking in the way of trade or the like, it is otherwise; and decreed for the plaintiff accordingly. Lord -EMon, in commenting upon this case, observed: — ^^ Jeffer- eys v. Small has been approved, with some distinctions, in subse- quent cases. It was held, in that case, that, if two take a lease of a farm jointly, the lease shall survive, but the stock on the farm, though occupied jointly, shall not survive. I have a note of my own of a case of Elliot v. Broum, upon the 25th of July, 1791, in which another distinction was made by Lord Thurloiv, that the law, with reference to the stock, would be the same as to lease provided the lease was taken onlij upon the same purpose as the stock, and the lease was only the substratum; and Lake v. Gibson was referred to. The observation upon that was, that the purchase of the land was made to the intent that they might become partners in the improve- ment; that it was only the substratum for an adventure, in the pro- fits of which it was previously intended they should be concerned: Jackson v. Jackson, 9 Ves. 596. In Elliot v. Broivn (since reported, 3 Swanst. 489), there Avas a lease of a farm to two partners; one partner dying, the other agreed to a division of stock with the rep- resentatives of the deceased partner, but insisted on holding the lease by survivorship; Lord Thurlow, however, thought the lease was accessory to the trade in which the parties were embarked, and granted an injunction to restrain the surviving partner from pro- ceeding by ejectment to obtain possession of the farm." From Lord Colchester's MSS. See also 1 Vern. 217, n. (3). So, where two persons took a building lease, and laid out money in erecting houses. Lord Thurlow held them to be partners in re- spect of this property; and the survivor was decreed to be [ * 227 ] a trustee of a moiety for the representatives of * the de- ceased partner. " Though," observed his Lordship, " if two persons take a farm, the lease will survive, yet has it not been determined that, if they lay out money jointly upon it, that turns round the estate at law, and makes it equitable? I allude to the case of a joint lease taken or a fee purchased to carry on a joint trade; the object being to carry on the trade, the Court thought it would convert the joint property for the purposes of trade, and making a common advantage. I am now clearly of opinion, that, if partners purchase leasehold or freehold to cany on trade, that 286 LAKE V. CRADDOCK. * 228 will carry with it all ihoso circnmstancos."' Lyster v. Dnlkuid, 1 Ves. Jun. 481. See also Crawnhay v. Maule, 1 Swanst. 508. A deceased partner, may, however, have so conducted himself by repiadiating a contrHct, as for instance, a lease of ground for a l)uilding speculation, as to preclude his executors from claiming a share in the lease: Reilly v. Walsh, 11 Ir. Eq. Hep. 22. And see Norway v. lioive, 19 Ves. 143; C'lemenfs v. Hall, 24 Beav. 333. And though the conveyance of real estate be taken in the name of one of the partners, if it has been purchased with partnership funds, it will bo part of the partnership property: Smith v. Smith, 5 Ves. 1 93 ; Clegg v. Fishicick, 1 Mac. & G. 294. And see Titbits V. FhilUps, 10 Hare, 355. The question whether property purchased with partnership assets is the joint or separate property of the partners depends upon the circumstances under which and the purposes for which it was bought. Thus, in the Bank of England Case, 3 De G. F. & Jo. 645, one of two partners carrying on the business of leather factor bought lands for the purpose of erecting a residence on part of it, and selling the remainder to a railway company. He offered a share to his partner, who was also desirous of building a house oat of town for his residence. The offer v/as accepted, and the purchase money paid out of the partnership assets; but the conveyance was to the partners in separate moieties, each of which was conveyed to the usual uses to bar dower. The partners at their individual ex- pense built houses upon portions of the land set apart for the pur- pose, but the other expenses relating to the land were paid out of the partnership assets. It was held by the Lords Justices that the whole of the land constituted joint estate. "arty to be charged therewith, within the Statute of Frauds; and such an agreenient being proved, A. or B. may establish his interest in the land, the subject of the partnership, without such interest being evidenced by any such writing. See Dale v. Hamilton, 5 Hare, 309; S. C, 2 Ph. 2G6; and Darby v. Darby, 3 Drew. 495; but see and consider Caddickv. Skidmore, 2 De G. & Jo. 52; Smith v. Matthews, 3 De G. F. & Jo. 139, 151. Conversion of real estate held by partners for partnership pur- poses.] — AN'here partners hold real estate for paitnership purposes, a question arises, which was not decided in Tjike v. Gibson, and Lake v. Craddock (in which case the defendant Craddock, it will be observed, was both heir-at-law and executor of his father), whether the real estate is not, even in the absence of any expressed * intention of the partners, so absolutely converted into [*230] personalty as to be held by the surviving partners, not in trust for the heir-at-law, but for the personal representatives, of the deceased partner. It is clearly settled, that where real estate is purchased ioi,th j^art- nership capital, for the purposes of partnership trade, it will, in the absence of any express agreement, be considered as absolutely con- verted into personalty; and, upon the death of one of the partners, his share will not go to his heir-at-law, nor be liable to dower, but will belong to his personal representatives. See Tmnisend v. De- vanes, 1 Mont, on Partnership, Append. 97; 1 Rop. H. & W., Jac. ed. p. 346; Selkrig v. Davies, 2 Dow 231. So, in Phillips v. Phil- lips, 1 My. & K. 649, Sir J. Leach, M. R., held, that freehold and copyhold public houses, purchased with partnership capital, and conveyed to the two partners and their heirs, for the purposes of the partnership trade, were to be considered as personal estate generally, and not only for the payment of the partnership debts. " I con- fess," observed his Honor, "I have for some years, notwithstanding older authorities, considered it to be settled that all property, what- ever might be its n'Ainr e, jmrchased icith partnership capital fertile purposes of the partnership trade, continued to be partnership capi- tal, and to have, to every intent, the quality of personal estate; and in the case of Fereday v. Wightwick, 1 Russ. & My. 45, I had no intention to confine the principle to the payment of the partnership demands. Lord Eldon has certainly, upon several occasions, ex- pressed such an opinion. The case of Toicnsend v. Devaynes is a clear decision to that effect, and general convenience requires that 19 WHITE ON EQUITY. 289 * 231 LAKE V. CRADDOCK. this principle should be adhered to." This decision has been fol- lowed in Broom v. Broom, 3 My. & K. 443; Morris v. Kearsley, 2 Y. & C. Excheq. Ca. 140; Bligh v. Brent, 2 Y. & C. Excheq. Ca. 268; Houghton v. Houghton, 11 Sim. 491. In re Thomas Ryan, 3 I. R. Eq. 232. It has, however, been held in some cases that where real estate belonged to the partners at the time of their entering into partner- ship, or has been subsequently acquired by them out of their own private moneys, or by gift, conversion will not, unless by express agreement, take place, although the real estate has been used for the partnership purposes in trade. See Thornton \. Dixon, 3 Bro. C C. 199; Balmain v. Shore, 9 Ves. 500: Cookson v. Cookson, 8 Sim. 529; Bisset on Partnership, 50. In more recent cases, proceeding upon a broader principle,it has been laid down that where real property has been substantially in- [ * 231 ] volved in a business in trade, *it is part of the partnership property, and therefore personal estate, and that it is im- material how it may have been acquired by the partners, whether by descent or devise. See Waterer v. Waterer, 15 L. R. Eq. 40-2. There J. Waterer was seised of real estate, upon part of which he carried on the business of a nurseryman, under the name of J. Waterer & Sons. He was assisted by his three sons in his busi- ness, but they were not in reality partners. J. W^aterer having con- tracted for the purchase of a house and farm for the purpose of his business, died on the 2nd November, 18GS, having by his Avill de- vised his real estate, and his residuary personal estate to his three sons as tenants in common. After his death, the contract for the purchase of the farm was carried into effect by his three sons, to whom the land was conveyed as tenants in common. For a short time the business was carried on by the three sons under the same style as before. It appears that the residuary real and personal estate of the testator (except invested property) was employed in the business. In April, 1869, Michael, one of the sons, retired from the partnership, and the two others purchased his one-third share in the residuary and real estate, and of the good-will in the busi- ness, for a sum which was paid for partly out of the estate, and partly out of moneys borrowed on the land. The two continuing partners carried on the business of nurserymen under the old style, upon the same land as their father, and also on the purchased land. The share of Michael was purchased only in order to enable the other two brothers to carry on the business. On the 4th of Octo- ber, 1871, one of the partners died intestate, 'leaving a widow and children. It was held by James, L. J., sitting for Wickefis, V.-C, that both the devised and the purchased land employed in the busi- ness was converted into personalty. "I am of opinion," said his Lordship, "that this case is governed by that class of cases in which Lord Eldon said that where property became involved in partner- ship dealings, it must be regarded as partnership property. It 290 LAKE V. CRADDOCK. * 232 seems to mo immatprial liow it may have been acquired by the two surviviug partner's, wliotlier V)y descent or devise, if, in fact, it was substantially involved in the business. If instead of Michael sell- injTj his undivided third part, there had been a partition beforehand, and then a purchase by the other partners of his allotment, it would have been impossible to say thai the freehold so bought to carry on the business was not withiu the authorities. They buy it, not as an undivided third only, but in one lump, for one lump sum, including the good-will, * therefore it was, in fact, a [ * 232 ] purchase of land and business altogether, by the continu- ing partners jointly, for the purpose of the business. Under those circumstances, I think they must each be deemed to have irrevoca- bly appropriated each of them his share in the land to the partner- ship purposes. A nursery gardener's business is probably one above all others where men would act as these gentlemen appear to have done. They necessarily appropriated the soil itself for gar- dening purposes, which could not bo can-ied on without it. It is, in fact, in nursery-gardening, practically impossible to separate the use of the soil for the trei-s and shrubs from the trees and shrubs themselves, which are part of the freehold, and at the same time constitute the substantial stock-in trade. In my judgment, there- fore, the land used in the trade is part of the partnership property, and therefore personal estate. The honse and land not used for the partnership business, but let to tenants, remain real estate." See also Davies v. Games, 12 Ch. D. 813; Murtaghx. Costello, 7 L. R. I. 428. The principle upon which cases of this kind proceed appears to be this: that as a general rule, inherent to the contract of partner- ship, and without any special stipulation, upon the dissolution of partnership all the property of the partnership must be sold, and the proceeds of the sale, after discharging all the partnership debts and liabilities, must be divided among the partners, according to their respective shares in the capital, and no one partner has a right to insist that any particular part or item of the partnership pro- perty shall remain unsold, and that he shall retain his share of it in specie. It follows then that any real property which.has become the property of the partnership becomes, by force of the partner- ship contract, converted into personalty, and that not merely as between the partners to the extent of discharging the partnership debts, but as between the real and personal representatives of de- ceased partners. See Darby v. Darby, 3 Drew. 495, 503, 506. Where, however, real estate was purchased for the purposes of a partnership in trade, and paid for out of the partnership capital, but upon an agreement between the partners, that it was to be the separate property of one of them, who took a conveyance of it in his own name. Lord Eldon held, that he was debtor to the partner- ship for so much money as he borrowed, and that the property not 291 * 234 LAKE V. CRADDOCK. beino- partnership property, his wife was entitled to dower of the whole. Smith v. Smith, 5 Yes. 193. And where real estate ia purchased by partners out of [ * 233 ] the partnership capital, but not for * the purposes of the partnership in trade, it will not, it seems, be converted into personalty. See Bell v. Phyn, 7 Ves. 453; Randall v. Randall, T Sim. 271; Steward v. Blakeivay, G L. R. Eq. 479; 4 L. K, Ch. App. 603. If, however, the owners of real estate, upon entering into j)art- nership, direct, or agree that it shall be sold upon the death of one? of them, it will be held to be absolutely converted into personalty, and will go to the personal representative, and not to the heir of a deceased partner. See Ripley v. Waterworth, 7 Ves. 425; Thornton V. Dixon, 3 Bro. C. C. 199. In the recent case of Essex v. Essex, 20 Beav. 442, two persons seised of freeholds agreed to carry on business in partnership upon the premises for fourteen years, and that if either died during that term, the survivor should purchase the freeholds at a stated price. The fourteen years having expired, they by parol agreement continued the partnership "on the old terms;" one of them afterwards died intestate. It was held by Sir J. Romilly, M. R., that the stipulation as to purchase was binding, and that the freeholds were converted into personalty, and did not pass to the heir. The share of a deceased partner in real estate purchased with partnership capital and used for partnership purposes in trade is now, it seems, held to be converted into personalty, not only as be- tween the partners and the real and personal representatives of a deceased partner — but also for fiscal purposes, and that the Crown is entitled to the benefit of such equitable conversion, and can claim legacy and probate duty in respect of the property which at the death of the partner was existing as real estate. See Forbes v. Steven, 10 L. R. Eq. 178, 189, where it was held by James, V.-C, (overruling the law supposed to have been established in distance V. Bradshaw, 4 Hare, 315), that legacy duty was payable upon a share of a deceased partner — a domiciled Englishman, in the pro- ceeds of freehold property in Bombay used for the purposes of the partnership, and forming a partnership asset, and the reasoning upon which the decision proceeded is equally applicable to show that it was liable to probate duty. See also Attorney -General v. Brunning, 8 Ho. Lo, Ca., 243; Attorney -General v. Lomas, QJj. R. Exch. 29, 34; Attorney General v. Hubbuck, 10 Q. B. D. 488; 13 Q. B. D. 275. And Hanson on the Prob. Leg. and Succ. Duty Acts, pp. 148—155, 3rd ed. But see Dart, V. & P. 925, n. 5th ed. But real estate, acquired by partners for the purposes of their business, may be dealt with by them in the conveyances in such a way as to prevent this result, by showing that conversion [ * 234 ] into personalty was not intended, as * where, for instance, they procure it to be conveyed to them in equal undi- 292 LAKE V. CRADDOCK. * 235 vided shares, distance v. Bradshaw, 4 Hare, 315. See also the re- luarks iu Hanson on the Prob. Leg. and Succ. Duty Acts, j)p. G, 148, 3rd ed. And it seems that conversion will take place not only where real property is acquired for the purposes of partnership in trade, but also where it is acquired with i)artnership funds for the puri)ose of re-sale upon a speculation not properly coming under the denomi- nation of trade. Thus, iu Darby v. Darby, 3 Drew, 495, where two persons on a joint speculation with their joint moneys, purchased land for the purpose of laying it out in building lots, and re-selling it at their joint protit or loss, it was held by Sir R. T. Kindersley, V.-C, that the land was converted, out and out, and that the share of a deceased partner in part of the unrealized real estate passed to his personal representatives. "The very intention of the part- nership," said his Honor, "was to buy land to re sell it. That is their very contract; and, without selling the land again there would be no partnership business, — the partnership was for the purpose of buying land to parcel it out in plots, and to sell them again; and each partner had a right to say he would have that contract carried out. We have here what Lord Tliurloiu wanted in Thornton, v. Dixon (3 Bro. C. C 199) — an actual contract that the land shall be sold." Where, as in the principal case, lands are held for partnership purposes, that is to say, for employment for some purposes which may produce a return in the shape of profits, so as to add to its value, the joint property will bo liable to repay the advances of the various partners before any division can take place (21 Beav. 526); but this is not the case where persons are mere joint owners of lands. Thus, in Kay v. Johnston, 21 Beav. 536, the plaintiff and defendant were joint owners of a house, and the defendant had laid out, in improving and decorating it, moneys he had obtained from the plaintiff, it was held by Sir J. Kornilly, M. R., that the plain- tiff, in the absence of contract, had no lien on the share of the de- fendant in the house for the amount so laid out. The Reconversio7i of partnership property into realty. — Property purchased with partnership capital, for partnership purposes in trade, and therefore converted into personalty, may be reconverted by the express or implied agreement of the partners. Thus, in Rowley v. Adams, 7 Beav. 548, A. and B. purchased realty out of their partnership assets, which was used for their partnership pur- poses, and was in equity to be considered as personalty. A new '^partnership was formed between A., B., and C. [ * 235 ] The realty continued to be used for partnership purposes, but A. and B. stipulated for a rent to be paid them by the new partnership, composed of A., B., and C. A died. Lord Langdale, M. R., held, that the property was to be considered as part of hia real estate. 293 * 235 LAKE V. CRADDOCK, Where, however, land used for partnership purposes has been considered as converted into personalty, it is intimated by Mr. Dart to be his opinion, "that such part of it as belongs to a surviving partner will remain personal estate as between his roal and peisonal representatives, unless and until he indicates an intention that it shall be reconverted into realty, and that his mere v>'inding-up and discontinuing the business would probably be held to have that effect." Dart, V. & P. 928, 5th ed. - \_Doctrme of Joint Purchases Restated. — In the United States title by joint tenancy, has been very much reduced in extent, and the incident of survivorship is almost entirely destroyed by statutes, except in the case of administrators, executors, guardians, trustees and others, amongst whom such a tenancy is necessary for the pro- per execution of their trustee: See 4 Kent's Com. (11th Ed.) 396. Where the obligation or right, instead of being joint, is either several, or joint and several, it descends on a party's death to his executors or administrators. If two persons who join in a purchase and take the title in the name of both of them^ a distinction is to be observed between equal and unequal contribution. If the contributions are unequal a trust results to each one of them in proportion to the amount that was originally subscribed: Baumgartner v. Guessfeld, 38 Mo. 36; Case t\ Codding, 38Cal. 191; Don. Jewell, 18 N. H. 340; Jackson v. Bak- man, Q. Wendell, 570. In the case of equal contribution there is no presumption of a resulting trust, as each takes an estate in joint tenancy and each runs his life against that of the other. But even where equal contributors take a conveyance in joint tenancy, collateral circumstances may induce a Court of Equity to construe it a tenancy in Common: Lewin on Trust, 264 (Text Book Series).] 294 DYER V. DYER. * 237 *DYER?). DYER. [*236] Hov. 20, 21, and 27, 1788. In ike Exchequer^ before Lord Chief Baron Eyre, Baron Hotham., Baron Thompson. [reported 2 cox, 02.] [5. C, 1 Watk. Cop. 216.] Purchase in the Name of a Son. — Advancement.] — Copyhold grant- ed to A. and B. his wife, and C. his younger son, to take in snc- cession for their lives and the life of the survivor. The jnirchase- money ivas all paid by A. C. is not a trustee of his life-interest for A.; bat takes it beneficially as an advancement from his father. — Result iny trust. In 1737, certain copyhold premises, holden of the manor of Heytes- bury, in the county of Wilts, were granted by the lord, according to the custom of that manor, to Simon Dyer (the plaintiff's father) and Mary his wife, and the defendant William his other son, to take in succession for their lives and to the longest liver of them. The purchase-money was paid by Simon Dyer, the father. He survived his wife, and lived until 1785, and then died, having made his will, and thereby devised all his interest in these copyhold premises (amongst others) to the plaintiff, his younger son. The present bill stated these circumstances, and insisted that the whole purchase-money being paid by the father, although, by the form of the grant, the wife and the defendant had the legal interest in the premises for their lives in succession, yet in a court of equity they were but trustees for the father, and the bill therefore prayed that the plaintiff, as devisee of the father, might be quieted in the possession of the premises during the life of the defendant. The defendant insisted that the insertion of his name * in the grant operated as an advancement to him from his [*237] father to the extent of the legal interest thereby given to him. And this was the whole question in the cause. 295 * 238 DYER V. DYER. This case' was very fully argued by Mr. Solicitor -General aad Ainge, for the plaintiff; and by Burton v. Morris, for the defendant. The following cases were cited, and very particularly commented on: — Smith v. Baker, 1 Atk. 385; Taylor v. Taylor, 1 Atk. 386; Munima v. Mumma, 2 Vern. 19; Howe v. Howe, 1 Vern. 415; Anon, 2 Freem. 123; Benger v. Dreiv, 1 P. "Wms. 781; Dickenson v. Shaw, before the Lords Commissioners, in 1770; Bedwell v. Froome, before Sir T. Seivell, on the 10th of May, 1778; Roiv v. Bowden, before Sir L. Kenyon, sitting for the Lord Chancellor; Crisp v. Pratt, Cro. Car. 549; Scroope v. Scrooi^e, 1 Ch. Ca. 21; Elliot v. Elliot, 2 Ch. Ca. 231; Ebrand v. Dancer, Ch. Ca. 26 ; Kingdon v. Bridges, 2 Vern. 67 ; Beck V. Andrew, 2 Vern. 120; Rundle v. Bundle, 2 Vern. 264; Lamplugh V. Lamplugh, 1 P. Wms, 111; Stileman v. Ashdown, 2 Atk. 477; Pole V. Pofe, 1 Ves. 76. Lord Chief Baron Eyre, after directing the cause to stand over for a few days, delivered the judgment of the Court. The question between the parties in this cause is, whether the defendant is to be considered as a trustee for his father in respect of his succession to the legal interest of the copyhold premises in question, and whether the plaintiff, as representative of the father, is now entitled to the benefit of that trust. I intimated my opinion of the question on the hearing of the cause; and I then indeed en- tertained very little doubt upon the rule of a court of equity, as ap- plied to this subject; but as so many cases have been cited, some of which are not in print, we thought it convenient to take an oppor- tunity of looking more fully into them, in order that the ground of our decision may be put in as clear a light as possible, especially in a case in which so great a difference of opinion seems to [* 238 ] have prevailed at the bar. And I have met * with a case, in addition to those cited, which is that of Rumboll v. Rum- boll {xv), on the 20th of April, 1761. The clear result of all the cases, without a single exception, is, that the trust of a legal estate, ivhether freehold, copyhold, or lease- hold; whether taken in the names of the purchaser's and others jointly, or in the names of others without that of the purchaser; ivhether in one name or several; whetfher jointly or successive, results to the man who advances the purchase-money. This is a general proposition, supported by all the cases, and there is nothing to contradict it; and (w) Since reported, 2 Eden, 15. 296 DYER V. DYER. * 239 it goes on a strict analogy to the rule of the common law, that where a feoffment is made without consideration, the use results to the feoffer. It is the established doctrine of a court of equity, that this resulting trust may be rebutted by circumstances in evidence. The cases go one step further, and prove that tlie circumstance of one or more of the nominees being a child or children of the pur- chaser, is to operate by rebutting the resulting trust; and it has been determined in so many cases, that the nominee, being a child, shall have such operation as a circumstance of evidence, that we should be disturbing land-marks if we suffered either of these propositions to be called in question, namely, that such circumstance shall rebut the resulting trust, and that it shall do so as a circumstance of evi- dence. I think it would have been a njore simple doctrine if the children had been considered as purchasers for a valuable consider- ation. Natural love and aff'ection raised a use at common law. Surely, then, it will rebut a trust resulting to the father. This way of considering it would have shut out all the circumstances of evi- dence which have found their way into many of the cases, and would have prevented some very nice distinctions, and not very easy to be understood. Considering it as a circumstance of evidence, there must be of course evidence admitted on the other side. Thus, it was resolved into a question of intent, which was getting into a very wide sea, without very certain guides. * In the most simple case of all, which is that of a [ * 239 ] father purchasing in the name of his son, it is said that this shows that the father intended an advancement; and therefore, the resulting trust is rebutted; but then a circumstance is added to this, namely, that the son happened to be provided for. Then the question is, did the father intend to advance a son already provided for? Lord Nottingham (x) could not get over this; and he ruled, that in such a case the resulting trust was not rebutted ; and in Pole v. Pole, 1 Ves. 76, Lord Hardwicke thought so too ; and yet the rule, in a court of equity, as recognised in other cases, is, that the father is the only judge as to the question of a son's provision; that distinction, therefore, of the son being provided for or not is not very solidly taken or uniformly adhered to (y). It is then said, that a purchase in the name of a son is a prima facie {x) Grey r. Grey. 2 Rwanst, 600; S. C, Finch, 343; and see Elliott i'. Elliott, 2Ch. Ca. 231; Llovd r. Kead. 1 P. Wnis. 60A. (y) See Kediugtou v. Kediugtou, 3 Kidg. 190; Sidmouth i'. Sidniouth, 2 Beav. 456. 297 * 240 DYER V. DYER. advancement (and, indeed, it seems difficult to put it in any other way). In some of the cases, some circumstances have appeared V4'hich go pretty much against that presumption : as where the father has entered and kept possession and taken the rents, or where he has surrendered or devised the estate, or where the son has given receipts in the name of the father; the answer given is, that the father took the rents as guardian of his son. Now, would the Court sustain a bill by the son against the father for these rents ? I should think it pretty difficult to succeed in such a bill. As to the surrender and devise, it is answered, that these are subsequent acts; whereas the intention of the father in taking the purchase in the son's name must be proved by concomitant acts; yet these are pretty strong acts of ownership, and assert the right and coincide with the pos- session and enjoyment. As to the son's giving receipts in the name of the father, it is said that the son being under age, he could not give receipts in any other manner; but X own this reasoning does not satisfy me. In the more complicated cases, where the life of the son is one of the lives to take in succession, other distinctions are taken. [ * 240 ] If the custom of the manor be, that * the first taker might surrender the whole lease, that shall make the other lessees trustees for him ; but this custom operates on the legal estate, not on the equitable interest ; and, therefore, this is not a very solid argument. When the lessees are to take successive, it is said, that, as the father cannot take the whole in his own name, but must in- sert other names in the lease, then the children shall be trustees for the father ; and, to be sure, if the circumstance of a child being the nominee is not decisive the other way, there is a great deal of weight in this observation. There may be many prudential reasons for putt- ing in the life of a child in preference to that of any other person; and if in that case it is to be collected from circumstances whether an advancement was meant, it will be difficult to find such as will support that idea: to be sure, taking the estate in the name of the child, which the father might have taken in his own, affords a strong argument of such an intent; but where the estate must necessarily be taken to lives in succession, the inference is very different. These are difficulties which occur from considering the purchase in the son's name as a circumstance of evidence only. Now, if it were once laid down that the son was to be taken as a purchaser for a valuable consideration, all these matters of presumption would be avoided. 298 DYER V. DYER. * 241 It must be admitted, that the case of Dickenson v. Shaw is a case very strong to support the present plaintiff's claim. That came on in Chancery on the 22nd of May, 1770. A copyhold was granted to three lives to take in succession, the father, son, and daughter ; the father paid the tine; there was no custom stated; the question was, whether the daughter and her husband were trustees during the life of the son, who survived the father. At the time of the purchase the son was nine, and the daughter seven years old. It ap- peared that the father had leased the premises from three years to three years to the extent of nine years. On this case. Lords Commis- sioners /5m7/^/te and Aston were of opinion that, as the father had paid the purchase-money, the children were * trustees [ * 241] for him. To the note I have of this case it is added, that this determination was contrary to the general opinion of the bar, and also to a case of Taylor v. Alston in this Court. In Dickenson V. Shaw there was some little evidence to assist the idea of its being a trust, namely, that of the leases made by the father; if that made an ingredient in the determination, then that case is not quite in point to the present; but I rather think that the meaning of the Court was, that the burthen of proof lay on the ciiild; and that the cases, which went the other way, were only those in which the estate was entirely purchased in the names of the children; if so, they certainly were not quite correct in that idea, for there had been cases in which the estates had been taken in the names of the father and son. I have been favoured with a note of Rumboll v. Rumholl (z) before Lord Keeper Henley on the 20th of April, 1761, where a copyhold was taken for three lives in succession, the father and two sons; the father paid the fine; and the custom was, that the first taker might dispose of the whole estate (and his Lordship then stated that case fully). Now, this case does not amount to more tha,n an opinion of Lord Keeper Henley; but he agreed with me in considering a child as a purchaser for good consideration of an estate bought by the father in his name, though a trust would result as against a stranger. It has been supposed that the case of Taylor v. Alston in this Court denied the authority of Dickenson v, Shaw. That cause was heard before Lord Chief Baron Smythe, myself, and Mr. Baron Burland, and was the case of an uncle pur- chasing in the names of himself and a nephew and niece; it was decid- ed in favour of the nephew and niece, not on any general idea of their Iz) 2Edenri5^ ' 299 * 243 DYER V. DYER. taking as relations, but on the result of much parol evidence, which was admitted on both sides; and the equity on the side of the nom- inees was thought to preponderate. Loi'd Kenyon was in that cause, and his argument went solely on the weight of the parol evidence ; indeed, as far as the circumstances of the custom of the first [ * 242 ] taker's right to surrender, it was a strong case in * favour of a trust; however, the Court determined the other way on the parol evidence: that case, therefore, is not material. Another case has been mentioned, which is not in print, and which was thought to be materially applicable to this (Bedicell v. Froome, before Sir T. Sewell); but that was materially distinguishable from the present: as far as the general doctrine went, it went against the opinion of the Lords Commissioners. His Honor there held, that the copyholds were part of the testator's personal estate for that it was not a purchase in the name of the daughter; she was not to have the legal estate; it was only a contract to add the daughter's life in a new lease to be granted to the father himself; there could be no question about her being a trustee; for it was as a freehold in him for his daughter's life; but in the course of the argument, his Honor stated the common principles as applied to the present case; and ended by saying that, as beticeen father and child, the natural presumption ivas, that a provision tvas meant. The anony- mous case in 2 Freem. 123, corresponds very much with the doctrine laid down by Sir T. Sewell; and it observes, that an advancement to a child is considered as done for valuable consideration, not only against the father, but against creditors. Kingdom v. Bridges is a strong case to this point: that is, the valuable nature of the con- sideration arising on a provision made for a wife or for a child; for there the question arose as against creditors. I do not find that there are in print more than three cases which respect copyholds, where the grant is to take successive : Rundley. Rundle, 2 Vern. 264, which was a case perfectly clear; Benger v. Drew, 1 P. Wms. 781, where the purchase was made partly with the wife's money; and Smith v. Baker, 1 Atk. 385, where the gen- eral doctrine, as applied to strangers, was recognized; but the case turned on the question, whether the interest was well devised. Therefore, as far as respects this particular case, Dickenson v. Shaw is the only case quite in point; and then the question is, whether that case is to be abided by? With great reverence to [ * 243 ] the memory of * those two judges who decided it, we 300 DYER V. DYER. * 244 think that case cannot be followed; that it has not stood the test of time or the opinion of learned men; and Lord Kemjon has certainly intimated his opinion against it. On examination of its principles, they seem to rest on too narrow a foundation, namely, that the inference of a provision being intended did not arise, be- cause the purchase could not have been taken wholly in the name of the purchaser. This, wo think, is not sufficient to turn the pre- sumption against the child. If it is meant to bo a trust, the })ur- chasor must show that intention by a declaration of trust, and we do not think it right to doubt whether an estate in succession is to be considered as an advancement when a moiety of an estate in pos- session certainly would be so. If wo were to enter into all the rea- sons that might possibly influence the mind of the purchaser, many mio^ht perhaps occur in every case upon which it might be argued that an advancement was not intended; and I own it is not a very prudent conduct of a man just married to tie up his property for one child, and preclude himself from providing for the rest of his family; but this applies equally in case of a purchase in the name of the child only. Yet that case is admitted to be an advancement; indeed, if anything, the latter case is rather the strongest, for there it must be confined to one child only. We think, therefore, that these reasons partake of too great a degree of refinement, and should not prevail against a rule of property which is so well established as to become a land-mark, and which, whether right or wrong, should be carried throughout. This bill must therefore be dismissed; but after stating that the only case in point on the subject is against our present opinion, it certainly will be proper to dismiss it without costs. Dyer v. Dyer is a leading case on the doctrine of resulting trusts upon purchases made in the names of strangers, but more especially on the very important exception to the doctrine where pur- chases * are made, not in the names of strangers, but of [ * 244 ] children or persons equally favoured. As to purchases made in the names of strangers, the Lord Chief Baron Exjre in his judgment observes, "The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchaser and others, jointly, ox in the names of others without that of the purchaser; whether in one name or sev- eral, whether jointly or successive, results to the man who advances 301 * 244 . DYER V. DYER. the purchase-money; and it goes on a strict analogy to the rule of common law, that, where a feoffment is made without consideration, the use results to the feoffor." [Bickel's Appeal, 5 Non-is, 204; Beck V. Gray bill, 4 Casey, 66.; AVillard v. AVillard, 6 P. F. Smith, 119; Kisler y. Kisler, 2 Watts, 323; Bear & Koenigstein, 16 Neb. 65; Butler v. Rutledge, 2 Coldwell, 4; Gass -y. Gass, 1 Heisk. 613; Cecil Bank & Snively, 23 Md. 261; Strattan v. Dialogue, 1 C. E. Green, 70; Depeyster v. Gould, 2 Green's Ch. 480; Bank of U. S. V. Carrington, 7 Leigh, 566; Pinnev v. Fellows, 15 Vt. 187; Clark V. Clark.,43 Vt. 685; Page v. Page, 8 N. H. 187; R. K Co. v. Lamp- son, 47 Barb. 533; Kane Co. v. Herrington, 50 111. 232; Elliott v. Ai-mstrong, 2 Black, 198; Tarpley v. Poage's Admr., 2 Texas, 150.] To illustrate this statement of the doctrine, suppose A. advances the purchase-money of a freehold, copyhold, or leasehold estate, and a conveyance, surrender, or assignment of the legal interest in it is made either to B., or to B. and C., or to A., B., and C. jointly, or to A., B., and C. successively. In all these cases, if B. & C. are strangers, a trust will result in favour of A., the party advancing the money. That a trust results where the conveyance is taken in one name or several jointly, see Ex parte Houghton, 17 Ves. 253; Rider v. Kidder, 10 Ves. 367; or successive, see Hoice v. Howe, 1 Vern. 415; Withers y. Withers, kmh. 151; Smith v. Baker, 1 Atk. 385; [If the purchase money is paid by several, and the title is taken in the name of only one, a trust will result in favor of the others in proportion to the amount paid by each: Union Col. v. Wheeler, 59 Barb. 585; Case v. Codding, 38 Cal. 193; Seaman v. Cook, 14111. 501; Morey v. Herrick, 6 Harris (Pa.), 129; Pierce v. Pierce, 7 B. Mon. 433; Shoemaker v. Smith, 11 Humph. 81; Honore V- Hutchings, 8 Bush, 693.] and a custom of a manor that a nomi- nee should take beneficially will not hold good, as being unreason- able and contrary to the principles of resulting trust: Letcis v. Lane, 2 My. & K. 449, overruling Edwards v. Fidel, 3 Madd. 237; Jeans V. Cooke, 24 Beav. 513. The doctrine is applicable to personal as well as to real estate; and a trust will result for the person advancing the consideration- money who takes a bond or a transfer of stock, or who purchases an annuity or any other thing of a personal nature in the name of a stranger, or of himself jointly with a stranger: see Ebrand v. Dancer, 2 Ch. Ca. 26; Mortimer y. Davies, cited Rider v. Kidder, 10 Ves. 365, 366; Lloyd v. Read, 1 P. Wms. 607; Ex parte Houghton, 17 Ves. 253; Sidmoiithv. Sidmouth, 2 Beav. 454; Garricky. Taylor, 29 Beav. 79; Beecher v. Major, 2 Drew. & Sm. 431; James v. Holmes, 4 De G. F. & Jo. 470. [But it does not extend to perishable prop- erty: Union Bank -y. Baker, 8 Humph. 447; Perry on Trusts, Sec. 130.] The doctrine of resulting trusts is applicable also to cases where two cr more persons advance the purchase-money jointly. [But to ere: ■» a resulting trust in such a case a payment must be of some 302 DYER V. DYER. * 245 definite part of the purchase money: Wheeler v. Kirtland, 8 C, E. Green, 22; Baker v. Vining, 80 Mo. 127; Koynolds v. MorriB, 17 Ohio, 510; Sayro u Townsend, 15 Wend. 647.] Lord Hardicicke, indeed, in Crop v. Norton, Barnard. C liep. 184, .S. C, 9 Mod. 235, is said to have thought that it was confined to cases where the whole consideration moved from one person. However, in Wray v. Steele, 2 V. &B. 8S8, Sir r/io//ias Plainer, Y.-C, upon the gen- eral principle, decided that there was a resulting * trust [*245 ] upon a joint advance, where the purchase was taken in the name of one. "Lord Hardwicke," observed his Honor, "could not have used the language ascribed to hini. What is there applicable) to an advance by a single individual, that is not equally aj)plicable to a joint advance under similar circumstances? See In re Tliomas Ryan, BLR E(p 237. As to joint-purchasers, see note to Lake v. Gibson, and Lake v. Craddock, ante, pp. 215, 217. So, if on a grant of copyholds to B., C, and D., successive for their lives, the fine be paid by A., the equitable interest therein would result to A. ; and, upon his death intestate, as there w^as no general occupancy of a trust of estates pur aiitre vie (Castle \. Dod, Cro. Jac. 200; Penny v. Allen, 7 De G Mac. & G. 422); and they were neither within the Statute of Frauds (29 Car. 2, c. 3, s. 13); nor 14 Geo. 2, c. 20, s. 9 (Withers v. Withers, Amb. 152; and see Zouch d. Forse v. Forse, 7 East, 186); notwithstanding the claims of the heir and the tenants of the legal estate, it was ultimately decided that the personal representative of A. was entitled thereto. See Howe V. Howe, 1 Vern. 415; Rundell v. Rundell, 2 Vern. 252, 264; ,S'. C, 2 Freem. 222; Withers w. Withers, Amb. 151; Goodright Y.Hodges, Watk. Cop. 228; Rumboll v. Rumholl, 2 Eden, 15. And by the late Wills Act (1 Vict. c. 26) s. 6, it is enacted that if there be no spe- cial occupant of any estate pur autre vie, whether freehold or copy- hold, it shall go to executor or administrator of the party that had the estate thereof by virtue of the grant. Sect. 6. See Reynolds V. Wright, 25 Beav, 100; 2 De G. F. & J. 590. But no trust will result if the policy of an Act of Parliament would be thereby defeated. Thus, it was held that no trust resulted in favour of a person advancing the purchase-money of a ship registered in the name of another; for the register, according to the policy of the old Registry Acts, was conclusive evidence of owner- ship, both at law and in equity. "The Registry Acts," says Lord Eldon, "were drawn upon this policy; that it is for the public inter- est to secure evidence of the title to a ship, from her origin to the moment in which you look back to her history; how far throughout her existence she has been British built and British owned: and it is obvious, that, if where the title arises by act of the parties, the doc- trine of implied trust in this Court is to be applied, the whole policy of these acts may be defeated:" Ex parte Fa ZZop, 15 Ves. 303 * 24:6 DYER V. DYEPv. 68; see also Ex parte Houghton, 17 Ves. 251; Slater v. Willis, 1 Beav. 354. There were, however, some exceptions to the rnle under the old Registry Acts, for instance, where a member of a firm [ * 246 ] registered * a ship in his own name, he was a trustee for the firm (Holderness v. Lamport, 29 Beav. 129); and where a person having no interest in a ship transferred it to a person, in whose name it was registered by mistake; the rightful owner was not deprived of his property therein (lb. ). So, if letters of adminis- tration were obtained to the estate of a shipowner, and the adminis- trator transferred the ship into his own name, and afterwards a will was discovered, and probate granted to the executor, it could not be contended that the executor was precluded from obtaining the ship, because another person had bona fide, but by mistake, been reoristered as owner. lb. See also and consider Armstrong v. Armstrong, 21 Beav. 71, 78. The policy of the old Registry Acts has been departed from in the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104, amended by 25 & 26 Vict. c. 63), whereby, after enacting that not more than thirty-two individuals shall be entitled to be registered at the same time as owners of any one ship, it is provided, "but this rule shall not affect the beneficial title of any numbers of persons or of any company represented by or claiming under or through any regis- tered owner or joint owner." Sect. 37 (2). It seems, therefore, that if A. purchased a ship, and it was regis- tered in the name of B., a stranger, that there would be a resulting trust for A. Where, moreover, a person having no title to a ship procures it to be registered in his name, the Court of Chancery will compel him to re-transfer it to the rightful owner and account for the earn- ings, even though there have been no fraud, and notwithstanding the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104): Holder- ness V. Lamport, 29 Beav. 129. As to the effect of non-registration of the mortgage of a ship, see Keith v. Burrows, 1 C. P. D. 722, 731. The principle upon which the case Ex parte Yallop proceeds seems to have been lost sight of in the case of Field v. Lonsdale (13 Beav. 78). There a person having deposited moneys in his own name in a savings bank to the full extent allowed by Act of Parlia- ment (9 Geo. 4, c. 92), made further deposits to an account in his own name "in trust foi'" his sister, but no notice of the investment was given to her. By the terms of the Act he retained a control over the whole fund. It was held by Lord Langdale, M. R., on the death of the depositor, that his sister was not entitled. "I think," said his Lordship, "that the only intention was to evade the provisions of the Act of Parliament, and not to create a trust. The declaration is therefore ineffectual, and the claim must be dis- missed." 304 DYER V. DYER. * 247 *A trust will not, it seems, result in favour of a person [ * 247 ] "who has purchased an estate in the name of another in order to mvo him a vote in electing a tueraber of Parliament: Graven V. Groves, 3 Y. & J. 168, 175. See also Brackenbury v. Brackenbury, 2 J. & W. 391. [Resulting trusts Avill not arise against the positive provisions of a statute or in contravention of public policy: Hill on Trustees, 98, 94; Hubbard v. Goodwin, 3 Leigh, 492; Leggott v. Dubois, 5 Paige, 114.] It has been held that a trust will result in favour of a person who has purchased lands in new South Wales in the name of a third party, as such transaction is neither immoral nor contrary to public policy, nor to the spirit and policy of the New South Wales Crown Lands Alienation Act, 1861; Barton v. Muir, 6 L. K. P. C. S. 184. If ih^ advance of the purchase- money, by the real pui-chaser does not appear on the face of the deed, and even if it is stated to have been made by the nominal purchaser, parol evidence is adiuissiblo to prove bv whom it was actually made. Thus, in Sir John Peachy'' s Case, Rolls, E. T., 1759, M.S., Sugd. V. & P. 910, 11th edit. Sir. Thomas Clarke, M. R., laid it down, that if A. sold an estate to C, and the consideration teas exj^ressed to be paid by B., and the con- veyance made to B., the Court would allow parol evidence to prove the money paid by by C. ; [Parol evidence is also admissible to es- tablish a trust in contradiction of the terms of the deed: Buck v- Pike, 2 Fairfield, 9; Pinney v. Fellows, 15 Vt. 525; Peabody i-. Tar- bell, 2 Cuah. 232. It is also admissible against the answer of the nominal purchasers, although the testimony to establish a trust under such circumstances must be very strong: Moore v. Moore, 38 N. H. 382; Larkens v. Rhoades. 5 Porter, 196; Blair ^^ Bass, 4 Black, 540; Boyd V. McLean, 1 Johns. Ch. 582,] see also By all v. By all, 1 Atk. 59; S. C, Amb. 413; Willis v. Willis, 2 Atk. 71; Bartlett v. Pick- ersgill, 1 Eden, 516; Lane v. Dighton, Amb. 409; Groves v. Groves, 3 Y. & J. 163. We may, therefore, consider that these authorities overrule Kirk v. Webb, Prec. Ch. 84; Heron v. Heron, Prec. Ch. 163, and other older cases in which it was held that parol evidence could not be admitted to prove payment of purchase money so as to raise a resulting trust, on the ground, that the admission of such evidence would be contrary to the Statute of Frauds (29 Car. 2, c. 3): for the trust which results to the person paying the purchase- money and taking a conveyance in the name of another, is a trust resulting by operation of law, and trusts of that nature are expressly excepted from the statute. See 29 Car. 2, c. 3, s. 8. Where the trust does not arise on the face of the deed itself, the parol evidence must prove the fact of the advance of the purchase- money very clearly: Netrton v. Preston, Prec. Ch. 103; Gascoigne v. Thiving, 1 Vern! 366; Willis v. Willis, 2 Atk. 71; Goodright v. Hodges, 1 Watk. Cop. 229; Groves v. Groves, 3 Y. & J. 163. Lord Hardicicke, however, in Willis v. Willis, 2 Atk. 72, [It is now well settled that parol evidence may be introduced both to create and to 20 WHITE ON EQUITY. 305 * 248 DYER V. DYER. rebut the presumption of a resulting trust: Kendall v- Mann, 11 Allen, 15; Sanford v. Weeden, 2 Hiesk. 71; Letcher v. Letcher, 4 J. J. Marsh, 593; Swinburne v. Swinburne, 28 N. Y. 508; Blodgett V. Hildreth, 103 Mass. 487; Dryden v. Hanway, 31 Md. 254; De Peyster v. Gould, 2 Green's Ch. 480; Myers u Myer.--, 1 Casey, 100,] thought that parol evidence might be admitted to show the trust from the mean circumstances of the pretended owner of the real estate or inheritance, which made it impossible for him to be puchaser. See also, Lench v. Lench, 10 Ves. 518; Heard \. Pilley, 4 L. R. Ch. App. 552. [ * 248] It is said by Mr, Sanders, in his * Treatise on Uses and Trusts, Vol. L p. 854, 5th edit., "that, after the death of the supposed nominal purchaser, parol proof can in no instance be admitted against the express declaration of the deed." [It is now held in this country that parol evidence may be introduced in the cases under consideration, even, after the death of the nominal pur- chaser: See Neil v. Keese, 5 Texas, 23; Williams v- Hollingsworth, 1 Strob. Eq. 103; McCammon v. Fettitt, 3 Sneed, 242; Fausler v. Jones, 7 Ind. 277. This is on the principle that the death of the nominal purchaser cannot affect the admissibility of parol testimony: Harrisburg Bank v. Tyler, 3 W. & S. 373; Livermore v. Aldrich, 5 Cush. 435; Unitarian Co. v. Woodbury, 14 Me. 281.] The same opinion is expressed by another author. See Koberts on Frauds, 9W, and Chalk v. Danvers, 1 Ch. Ca. 310. It does not, however, appear that the Statute of Frauds is violated by admitting parol proof of the advance of the purchase money after the death of the nominal purchaser, any more than it is by allowing such proof in his lifetime. See Lench v. Lench, 10 Ves. 511, 517; Sugd. V. & P. 910, 11th edit. If the nominal purchaser admits the payment of the purchase- money by the real purchaser, a trust will doubtless result: {Ryall V. Rijall, 1 Atk. 58; Lane v. Dighton, Amb. 413); and even although he, by answer to a bill, denied such payment, parol evidence is, it appears, admissible in contradiction to it. See Gascoigne \. Thuing, 1 Vern. 366; Neicton v. I^reston, Prec. Ch. 103; Bartletty. Pickers- gill, 1 Eden, 515,516; Edivardsv. Pike, lEden, 267; Cooth v. Jack- son, 6 Ves. 39; sedvide Strett v. Whitmore, 2 Freem. 280. But parol evidence has been held not admissible to prove a verbal jigrecment of an agent to purchase an estate for his principal, where the agent having purchased the estate for himself, nitJi Jtis oicn money, had, by his answer, denied the agreement. See BarUett v. Pickersgill, 1 Eden, 515, where Lord Keeper Henley, okarly draw- ing the distinction between the admission of evidence to prove the advance of ]mrchase-money, where the trusts result by operation of ^he law, and are exempted from the Statute of Frauds (29 Car. 2, c. 3), and the admission of parol evidence to prove an agreement, said, that to allow parol evidence in the latter case would be to overturn the statute. " The statute," observes his Lordship, " says that there shall be no trust of land unless by memorandum in writing, except 306 DYER V. DYER. - * 249 such frusfs as arise by oppvation of laic. [" If the trust is declared in writing at the time of the transaction, there can be no resulting trust, as the one precludes the other." Perry on Trustn, sec. 140; Dow V. Jewell, 21 N. H. 470; Alexander v. Worrance, 17 Mo. 280; Anstice v. Brown, Paige, 448.] Where money is actually paid, there the trust arises from the jjayment of the money, and not from any agreement of the j^ctrties. But this is uot like the case of money paid by one man, and the conveyance taken in the name of another; iti that case, the bill charges that the estate was bought with the plaintiff's money. If the defendant says he borrowed it of the plain- tiff, then the proof will be whether the money was lent or not; if it was not lent, the plaintiff bought the land: but as here the trust de- pends on tlie agreement, if I establish the one by parol, I establish the other also If the jilaintijf had paid any part of the pur- chase-money, it ivould have been a reason for me to admit the *evidence." The defendant in this case was afterwards [ * 249 ] convicted of perjury for having denied the trust; but the rt^cord of the conviction was held not to be evidence of the agree- ment: Bartlett v. Pickersgill, 1 Eden, 517; see Chadn-icfcY. Maden, 9 Hare, 188. In the recent case of Heard v. Pilley, 4 L. R. Ch. App. 548, doubts are thrown upon Bartlett v. Pickersgill, by Lords Justices Selwyn and Giffard, the latter of whom observes, "that, as regards the case of Bartlett v. Pickersgill, it seems to be inconsistent with all the authorities of the Court, which proceed on the footing that it will not allow the Statute of Frauds to be made an instrument of fraud." See Nicholson v. Mulligan, 3 I. R. Eq. 308; Cave v. Mack- enzie, 4G L.J. (Ch.) 564; Chattock v. Muller, 8 Ch. D. 177. Parol evidence is admissible to prove that a purchase of land has been made by the trustee with trust-money, notwithstanding the Statute of Frauds (29 Car. 2, c. 3), because constructive trusts were excepted therefrom, sec. 8 ; [The Statute of Frauds embraces only trusts created or declared by the parties and does not effect trusts arising by operation of law: Foote i\ Bryant, 47 N. Y. 544; Ward V. Armstrong, 84 111. 151, Judd v. Haseley, 22 la. 428; Black r. Black, 4 Pick. 238; Ross r. Hegeman, 2 Edw. Ch. 373.] and upon that being proved, a trust will result in favour of the cestiii que trust, the real owner of the money. Thus, Sir William Grant, M. R., in Lench v. Lench, 10 Yes. 517, speaking of a purchase alleged to have been made with trust money, says, " all depends upon the proof of the facts ; for, whatever doubts may have been formerly entertained upon this subject, it is now settled that money may, in this manner, bo followed into the land in which it is invested ; and a claim of this sort may be supported by parol evidence." [If the trustee or other person standing in a fiduciary relation pur- chases property with the funds of the trust estate and takes title in his own name, he must hold it upon a resulting trust for his ben- eficiary: Hall V. Vanness, 49 Pa. St. 457; Campbell v. Campbell, 307 * 250 V DYER V. DYER. 21 Mich. 459; Settembre?;. Putnam, 30 Cal. 490; Holmes r. Camp- bell, 10 Miun. 40; King v. Cushman, 43 111. 31.] See also Anon., Sel. Ch. Ca., 57; Rijall v. Ryall, 1 Atk. 59; S. C, A.mb. 413; Lane V. Dighton, Amb. 409; Balgney v. Hamilton, cited Amb. 414; Hughes v. Wells, 9 Hare, 749; Harford v. Lloyd, 20 Beav. 310; Bridgman v. Gill, 24 Beav. 302; Birds v. Askey, 24 Beav. 618; Pennell v. Deffell, 4 De G. Mac. & G. 372; Trench v. Harrison, 17 Sim. Ill ; Wadham v. -Riflfgr, 1 Drew. & Sm. 216; Williams v. Thomas, lb. (V.-C. K.) 417; i^oZ/e v. Gregory, 13 W. R. (L. C.) 3r.5; Frith V. Cartland, 2 Hem. & Mill. 417; Hopper v. Conyers, 2 L. Eep. Eq. 549; Brown v. Ada?rts, 4 L. R. Ch. App. 764; Middleton v. Pollock, 4 Ch. D. 49; Great Eastern Baihcay Comjjany v. Turner, 8 L. R. Ch. App. 149; Ex parte Cooke, 4 Ch. D. 123; £frf v. Burt, 11 Ch. D. 772 n. The result will be the same where the trust money has been in- vested by the trustee in the purchase of goods or chattels ; In re HalletVs Estate, 13 Ch. D. 709. [For American notes on this very important case, see American notes and cases to Brett's Lead. Cas. Mod. Eq. 45 et seq. (Text Book Series.)] In either case according to the now well-established rule of equity, the beneficial owner has a right to elect either to take the property purchased, or to hold it as a security for the amount of the trust money laid out in the purchase ; or, as we gen- [ * 250 ] erally express * it, he is entitled at his election either to take the property, or to have a chai'ge on the propertj^ for the amount of the trust money : In re HalletVs Estate, 13 Ch. D. 709, per Jesse Z, M. R. Where, however, a trustee has mixed the trust juoney with his own there is this distinction, that the cestui que trust, or beneficial owner, can no longer elect to take the property, because it is no longer bought with the trust money simply and purely, but with a mixed fund. He is however still entitled to a charge on the prop- erty purchased, for the amount of the trust money laid out in the purchase ; and that charge is quite independent of the fact of the amount laid out by the trustee : Ih., 709, and see In re Pumfrey, The Worcester City & Coujity Banking Co. v. Blick, 22 Ch. D. 255, as to right of the trustee to an indemnity for the sum he has ad- vanced. [When a person holding money in a fiduciary character mixes it with his own, a resulting trust arises for the benefit of the cestui que trust who will take the entire fund unless the trustee es- tablishes how much money of the mixed fund was his and how much belonged to the cestui que trust. The rule on the subject of confusion of goods regulates this: Hill on Trustees, 148; Thomp- son's Appeal, 10 Harris (Pa.), 16; School t'. Kirwin, 25 111. 73.] In following trust money, invested by a person to whom it was intrusted, it is immaterial whether he were an express trustee, an agent, bailee, collector of rents, or anybody else in a fiduciary posi- tion : In re HalletVs Estate, 13 Ch. D. 696, 709, and the cases there 308 DYER V. DYER. * 251 cited. Harris v. Truman, 7 Q. B. D. 340; Q. B. D. 204; New Zealand & Australian J.and Company v. Watson, 7 Q. B. 8<4, 383, reversing »S'. C, uoin., N civ Zealand & Australian Land Co. \. Hus- ton, 5 Q. B. D. 474. [The luomeat yoix establlHli the fiduciary rela- tion, the modern rules of equity as regards following trust money- apply: Kesor V. Resor, Ind. 347; Baron r. Baron, 24 Vt. 375; McLarren v. Brewer, 51 Me. 402; Pngh v. Currie, 5 Ala. 4 10; Oli- ver V. Piatt, 3 Howard, 401; Eshleman v. Lewis, 13 Wright (Pa.), 419.] Money also held by a person in a fiduciary character, if paid by him to an account at his banker's, may be followed by the person for whom he held the money, who has a charge on the balance in the banker's hands. {In re HalletVs Estate, 13 Ch. I). fiQfj, dis- senting from Ex parte Dale & Co., 11 Ch. D. 772.) Hence if a person who holds money as a trustee or in a fiduciary character, pays it to his account at his banker's, and mixes it vrith his own money, and draws out sums by cheques in the ordinary manner, the rule in Clayton's Case (1 Mer. 572;"Tudor's L. C. M. L. 1, 3rd ed.) attrib- uting the first drawings out to the first payments in does not apply, so that the drawer must be taken to have drawn out his own money in preference to the trust money : In re HalletVs Estate, 13 Ch. D. 090, on this point not following Pennell v. Deffell, 4 De G. M. & G. 372. It seems, however, that as between two cestui que trusts whose money, the trustee has paid into his own account at his banker's, the rule in Clayton''s Case will apply, so tliat the first sum paid in will be held to have been first drawn out : In re HalletVs Estate, 13 Ch. D. 090. A trustee as well as a cestui que trust may follow property in which a trust fund has been wrongly invested, though he has ac- tively concurred in the breach of trust ; Carson v. Sloane, 13 L. * R. I. 139; Price v. Blakemore, Beav. 507. [ * 251 ] Trust money, however, cannot be followed, if paid to a third person bona fide, as for instance to a tradesman in part pay- ment of a debt (Collins v. Stimson, 11 Q. B. 142, 144), to an auctioneer as a deposit, afterwards forfeited for non-completion of the contract (/6.), to a landlord in payment of rent by an uncertifi- cated bankrupt: Ex parte Deivhurst, 7 L. R. Ch. App. 185. Where a person under an obligation to settle all his personal estate afterwards buys laud in his own name, partly with borrowed money, although upon his death iufpstate there will be no resulting trust of the estate which will descend to his heir, all his personal estate which can be traced as having been employed in the pur- chase of the estate, in paying ofi" the borrowed money, or in lasting improvements on the estate, will be a charge upon it in the hands of the heir for the benefit of the cestui que trusts: Leivis v. Madocks, 8 Ves. 150; 17 Ves. 48; Denton v. Da vies, 18 Yes. 499. In the case of the settlor's bankruptcy, see 40 & 47 Vict. c. 52, s. 47. 309 * 252 DYER V. DYER. No trust will result for a person who advaDces the purchase- money merely as a loan Bartlett v. Pickersgill, 1 Eden, 516; Crop V. Norton, 9 Mod. 233, 235: Aveling \. Knipe, 19 Ves. 445. [In order to create a resulting trust the purchase- money must be ad- vanced and paid in the capacity of purchaser; and if one pays the purchase-money by way of a loan, for another, and the conveyance is taken in the name of the other, no trust will result to the one who pays the purchase money: Dudley v- Batchelder, 53 Me. 403; White V. Carpenter, 2 Paige, 217; Gibson v. Toole, 40 Miss. 788; Henderson v. Hoke, 1 Dev. and Batch. 119.] It was stated by Sir G. Jessel, M. K., that "he did not understand that the law of the Court made any difference between a tranf-fer and a purchase — a purchase of stock in the joint names of the ben- eficial owner and another, or a transfer from that beneficial owner into the joint names of himself or herself [and another], or a trans- fer to a third name from the beneficial owner into another name. In either case, in the absence of evidence to the contrary, there was a resulting trust in favour of the beneficial owner." Faickes v. Pascoe, 10 L. E. Ch. App. 345, n. In the Court of Appeal, where the decision of the Master of the Eolls was reversed, upon the ad- mission of evidence rebutting the resulting trust, if any, the Lords Justices did not decide the point raised by the Master of Rolls, viz., whether a trust results upon the transfer of stock from the owner into the name of a third party, in the same manner as it un- doubtedly would do if he had purchased stock and had it trans- ferred by another into the name of such person. But Lord Justice James, although he assumed for the purpose of his judgment that there was no distinction between the two cases, evidently -did not ao-ree with the law as laid down by the Master of the Rolls, as he observed, although he would then assume that the implication of a resulting trust arose as much in the ease of a trans- [ * 252 ] fer as *in that of a purchase of stock, "that certainly was not the case with regard to a conveyance of land ;" Faivkes v. Pascoe, 10 L. R. Ch. App. 348. With regard to a voluntary conveyance of land, in the case of Young v. Peachy, 2 Atk. 257, Lord Hardwicke distinctly lays it down that where a voluntary conveyance is made, it is by no means the rule of the Court that a trust arises by implication. That trusts by implication or operation of law arise where one person pays the purchase-money and the conveyance is taken in the name of another, or in some other cases of that kind, but the rule is by no means so large as to extend to every voluntary conveyance. See also Lloyd V. Spillet, 2 Atk. 148, 150. Sed vide Lewin on Trustees, p. 131 n_., 7th ed., and cases there cited; Fordyce v. Willis, 3 Bro. C. C. 585. [No trust results because of a conveyance without consideration: Grofif V. Rohrer, 35 Md. 327; Burt v. Wilson, 28 Cal. 632; Ownes V. Ownes, 8 C. E. Green, 60. Parol evidence is not admissible to 310 DYER V. i>yp:r. * 253 control or contradict the consideration ; Farrington v. Barr, 30 N. H. 86; Randall v. Phillips, 3 Mason, 388.] Upon the same principle, in George v. Hoivard, 7 Price, G40, where an intestate had transferred slock into the joint names of himself and the husband of one of his nieces, Lord Chief Baron Richards says, '"It was argued on this giuund, that the intertate having purchased the stock with his own money, and transferred it into his own name and that of another i)erson, the presumption is that the other person, if a stranger, is merely a trustee for him whoso money it was: and so it might have been presumed here, per- haps, if such were the facts, but in ihis case, iiiock alreadij purchased and invested was tranf erred into the name of the owner and the defendant; and if I deliver over money, or transfer stock to another, even although ho should be a stranger, it would be primCi facie a gift." We may therefore conclude that if there has been a voluntary grant or transfer of real or personal property to a stranger, and a, fortiori if to a child or a person to whom the grant or a transferor stands in loco parentis (Batstone v. Suiter, 19 L. R. Eq. 2vO; 10 L. R. Ch. App. 431) the presumption arises that a gift was in- tended to the grantee or transferee, which may, however*, be rebutted or supported by evidence: Hutchins v. Lee, 1 Atk. 447; C'ooA; v. Fountai)!, 3 Swans. 585; Young v. Peachy, 2 Atk. 256; and see Hill on Trustees, 72, 73. Hoiv resulting trusts may be rebutted. — Resulting trirsts, however, as they arise from equitable presumption, may be rebutted by parol evidence, showing it was the intention of the person who advanced the purchase-money, and whicli intention cannot be altered at a subsequent period. [The trusts under consideration rest upon pre- sumption, and this presumption is not one Juris et de jure. But of fact merely, and open to rebuttal, and all the attendant facts and circumstances may be proved by parol: Bisph. Eq. sec. 83; Byers V. Danley, 27 Ark. 88.] Groves v. Groves, 3 Y. & J. 172), that the per- son to whom the property was transferred either solely or jointly with such person should take for his own benefit (Good- right V. Hodges, 1 Watk. Cop. *227; S. C.,Lofft, 230; Ki [ -253 ] der V. Kidder, 10 Ves. 364; Rundle v. Rundle, 2 Yern. 252; see Order, n. (1) lb.; Redington v. Redington, 3 Ridg. P. C. 178; Deacon v. Colquhoun,2 Drew. 21; Garrick\. Taylor^ 29 Beav, 79, 10 W. R. (L. J.) 49; Wheeler v. Smith, 1 Giflf. 300; Nicholson V. Mulligan, 3 I. R. Eq. 308; Faivkes v. Pascoe, 10 L. R. Cb. Aup. 343). And such trusts may be rebutted as to part, and prevail as to the remainder. Thus, where a person has advanced the purchase- money, and has taken a transfer of stock or the conveyance of an estate in the name of a stranger, upon proof of the intention of the person advancing the money to confer upon the nominee a life in- 311 * 254 DYER V. DYER. terest in the stock or estate, the resulting trust will be rebutted as to the life interest, but will prevail as to the remainder: Lane v. Dighfon, Amb. 409; Rider v. Kidder, lOVes. 368; Benboic\. 7'oicn- send, 1 My. & K. 501. In the same manner the resulting trust may prevail as to a life interest, but be rebutted as to the remainder. This is often the case when a purchase of stock has been made by the purchaser in the joint names of himself and a stranger: Voivkes v. Pascoe, 10 L. R. Ch. App. 343; Standing v. BottTing, 27 Ch. D. 341; ;S'. C, affirmed on appeal W. N. 1885, Dec. 20, P. 223. AVhere a transfer has been made to the name of a stranger, or a purchase made in his name, either solely or jointly with that of the purchaser or transferor, and the presumption in favour of a result- ing trust is either wholly or partially rebutted by evidence, any sub- sequent purchase or transfer in the same name or names will be con- sidered as made for the same purpose. See Fotvkes v. Pascoe, 10 L. R. Ch. App. 354, where Mellish, L. J., observes, "Assuming the testatrix to know that she had made a gift, and had invested a sum of money in stock in the joint names of herself and Pascoe, for the purpose of making a present to him, it would certainly be a very extraordinary thing that she should go and add other large sums to that account, not for the purpose of making a present to him, but for the purpose of his being a trustee." The mere receipt of the income of the property transferred is not of itself sufficient to show that the transferor did not intend to confer a beneficial interest on the transferees: George v. Hoivard, 1 Price, 646; Christy v. Courtenay, 13 Beav. 96; Batstonex. Salter, 19 L. R. Eq. 250, 10 L. R. Ch. App. 431. It seems that statements on the part of the person making the purchase, evidencing an intention to confer some undefined benefit not shown to be acted on, and a fortiori if they are inconsistent with the acts of enjoyment of the property, will not be sufficient to rebut a resulting trust: [The facts in all cases must be proved with great clearness and certaintv : Parmlee v. Sloan, 37 Ind. 469 ; Cutlery. Tuttle, 19 N. J. Ch. 560; Holders Nunnelly, 2 Cold. 288; Thomas v. Sandford, 49 Md. 181; Clark v. Quackenboss, [ * 254 ] 27 111. 260; Wright v. King, Harr. Ch. 12.] * Nicholson V. Mulligan, 3 I. R. Eq. 308, 320. Parol evidence of interested parties is admissible to rebut a result- ing trust, and in connection with surrounding circumstances it might have that efPect, althovigh it would not if taken by itself. See Fowkes V. Pascoe, 10 L. R. Ch. App. 343. [The admissions of the nominal purchaser and grantee in the deed, and other proj^er docu- ments, and even circumstantial evidence, as, that the means of the nominal purchaser were so limited that it was impossible for him to pay the purchase-monev, are all competent evidence: Farrell v. Lloyd, 69 Pa. St. 239; Mitchell v. O'Neil, 4 Nev. 504; Baumgart- ner v. Guessfeld, 38 Mo. 36; Gascoigne v. Twing, 1 Vroom, 366.] 312 DYER V. DYER. * 255 The presumptioa of a resulting trust will not bo raised, after ac- quiescence for a great length of time in the enjoyment of the prop- erty, by the person in whose name it was j)urchased by the person advancing the purchase-money. Delaue v. Delane, 7 Bro. P. C. 279, Toml. ed. See, also, Groves v. Groves, 3 Y. A: J. 172; Clegg v. Edmondson, 8 De G. Mac. & G. 787. [The courts will not enforce a resulting trust after the lapse of great lapse of time, or laches on the part of the supposed cestui que trust:. Smith f. Patton, 12 W. Va. 541; King u Purdee, (3 Otto, 90; Douglass r. Lucas, 63 Pa. St. 11; Hall V. Doran, 13 la. 308; Midmer v. Midmer, 2G N. J. Eq. 299; Miller y. Blose, 30 Gratt (Va.), 744] Where there is an express trust declared, upon a purchase made in the names of strangers, (Ayherst v. Jenkins, 16 L. K. Eq. 275), though but by parol, there can be no resulting trust; for resulting trusts, though saved by the Statute of Frauds (29 Car. 2, c. 3), are only saved and left as they were before the act; and a bare declara- tion by parol, before the act, would prevent any resulting trust. See Bellasis v. Compton, 2 Vern. 294. Where a person in order to defraud his creditors had transferred stock to a fictitious person, upon proof of the fact, a transfer was or- dered to be made to the personal representatives of the transferor {Arthur v. Midland Railwaij Co., 3 K. & J. 204) ; and in a case where a person had made a similar transfer with the same object, and after- wards became bankrupt, a re-transfer at the suit of his assignees was ordered to be made into his own name: Greeii v. The Bank of England, 3 Y. & C. 722. AV here, however, a person for the purpose of giving a fictitious credit to others, deposits money to their credit with a bank to be held upon trust for himself, the latter cannot after the bankruptcy of such others reclaim the deposit, even if he might have done so previously. See In re Great Berlin Steamboat Co., 26 Ch. D. 616. There B. for the purpose of enabling a company to have a fictitious credit in case of inquiries at their bankers placed money to their credit which they were to hold in trust for him. Some of the money having been drawn out with B.'s consent, and the company having been ordered to be wound up, it was held by the Court of Appeal affirming the decision of Bacon, V.-C, that B. could not claim to have the balance paid to him. Presumption of Advancement on a purchase in the name of a child, icife, c&c. ]^As to purchases made in the names of children, or of persons equally favoured, it may be laid down as a general rule that where a purchase is made by a parent in the name of a child, * there will primCt facie be no resulting [ * 255 ] trust for the parent, but on the contrary, a j^resuwption arises that an advancement tuas intended. [If a purchaser takes a conveyance in the name of his wife or child or any other person, for whom he is under natui-al, legal or moral obligation to provide, 313 * 255 DYER V. DYER. the presumption of a resulting trust is rebutted, and the contrary presumption arises, — that the purchase and the conveyance were intended to be an advancement for the nominal purchaser: Fatberlee V. Fletcher, 31 Miss. 265; Thomas ^'. Chicago, 55 111. 403; Wilton V. Devine, 20 Barb. 9; Tremper v. Burton, 18 Ohio, 418; Dickin- son V. Davis, 44 N. H. 647; Miller v. Blose, 30 Gratt (Va.), 744; Stanley v. Brannon, 6 Black, 193; Shepherd v. AVhite, 10 Texas, 72; Butler v. Ins. Co., 14 Ala. 777; Dudley v. Bosworth, 10 Humph. 12; Shawu. Read, 47 Pa. St. 96.] "I remember," says Lord Eldon, "the case of Dyer v. Dyer, which was very fully considered; and the Court meant to establish this principle, viz., admitting the clear rule that, where A. purchases in the name of B., A. paying the con- sideration B. is a trustee, notwithstanding the Statute of Frauds (29 Car. 2, c. 3), that rule does not obtain where the purchase is in the name of a son; that purchase is an advancement prima facie; and in this sense, that this principle of law and presumption is not to be frittered away by nice refinements. Therefore, if the pur- chase was of a fee simple immediately, primCi facie the son wou.ld take; so, if it was the purchase of a reversion; and it is very diffi- cult, upon the mere circumstance of the proximity or possible re- moteness of possession, to do that away. Nothing could be stronger than the circumstance in Dyer v. Dyer, that the purchaser had ac- tually devised it. He certainly took it to be his own; but he hap- pened to mistake the rule: Finch v. Finch, 15 Ves. 50; see also Franklin v. Franklin, 1 Swanst. 17, 18; Grey v. Grey, 2 Swanst. 597; S. C, Rep. t. Finch, 340; Sidmouthy. Sidmonth, 2 Beav. 454; Christy v. Courienay, 13 Beav. 96; Williams v. Williams, 32 Beav. 370; Tucker vr Burroiv, 2 H. & M. 515, 524; and see Keats v, Heioer, 13 W. R. (LL.J. ) 34, where, however, it was held that there was an express trust for the purchaser. The presumption may also arise in favour of any person with re- gard to whom the person advancing the money has placed himself ill loco par^entis, thus in Beckford v. Beckford, Lofift. 490, an illegiti- mate son; in Ebrand v. Dancer, 2 Ch. Ca. 26, a grand-child; and in Currant v. Jago, 1 Coll. 261, the nephew of a wife, were held entitled to property purchased in their names, from the presumption of ad- vancement being intended. [The rule embraces all persons for whom the purchaser is under any legal or moral obligation to pro- vide. It embraces sons and daughters: Murphy v. Nathans, 46 Pa. St. 508; Baker v. Leathers, 3 Ind. 558; Astreen v. Flanagan, 3 Edw. Ch. 278. It applies also to mother and daughter: Murphy V. Nathans, 10 Wright (Pa.), 508; to husband and' wife: Cotton v. "Woods, 25 Iowa, 43; Alexander v. W^arram, 17 Mo. 228; Earnest's Appeal, 106 Pa. St. 310; Whitten v. Whitten, 3 Cush. 194; Father- lee V. Fletcher, 31 Miss. 265; to purchases in the name of the son- in-law: Baker v. Leathers, 3 Porter, (Ind.) 558; to grand-father and grand-child: Kilpin v. Kilpin, 1 M. & K 520. A purchase in the name of a brother will not be considered an 314 DYER V. DYER. * 256 advancement, unless the brother stands in loco parentis to his brother. Edwards u. Edwards, 3 Wright (Pa.), 877.] But it has been held in a recent case that the mere fact that a grand- father had placed himself in loco xjarentin towards his illegiti- mate grand-son during the life of his father, will not itself alone raise a presumiition that a purchase in the name of such illegiti- mate grandson was intended for his advancement: Tucker v. Bnr- roiL\ 2 H. & M. 515; and see Forrest v. Forrest, 18 W. R. (V.-C. S.) 880; Hart v. Hart, W. N. 1877, p. 184. ["It seems to be doubtful whether a purchase in the name of an illegitimate child is to be treated as an advancement, although the weight of authority is in favor of treating it so:" Bisph. Eq. Sec. 84] The presumption also arises upon the purchase in the name of a wife: (Kingclon v. Bridges, 2 Vern. 07; Chrisfs Hospital v. Bud- gin, 2 Vern. 088; Back v. Andreiv, 2 Vern. 120; Glaister \. Hewer, 8 Ves. 199; Rider v. Kidder, 10 Ves. 3()7: and Lorimer *v. Lorimer, 10 Ves, 307, n. ; Loiu v. Carter, 1 Beav. 420; [*256] and see Gosling v. Gosling, 8 Drew. 335); or when there is a purchase by a husband in the joint names of himself and his wife: (Re Gadburij, 11 W. R. (V. C. K.) 895; Lloyd v. Piighe, 14 L. R. Eq. 241; 8 L. R. Ch. App. 88) ; or in the joint names of him- self and his wife and child: Devoy v. Devoy, 3 Sm. & Giff. 403; or in the joint names of himself, his wife and a stranger or strangers, even although such stranger or strangers be the trustee or trustees of his marriage settlement, for even in such case the purchase will be considered an advancement for the wife and not an augmenta- tion of the funds in settlement. [A purchase by a wife in the name of her husband may be shown to be a trust: McGovern v. Knox, 21 Ohio, 552.] In re Eykyn's Trusts, 6 Ch. R 115. [See as to wife taking by survivorship the balance of a joint account kept by her deceased husband and herself with a banker: In re Young, Tryeu. Sullivan, W. N. 1885, Feb. 7, p. 25.] Where the husband makes an investment, such as money or stock, in the names of himself and his wife, it is an advancement for the benefit of the wife absolutely if she survives her husband, but if he survives her, then it reverts to him as joint tenant with his wife: In re Eykyn^s Trusts, Ch. D. 118; Diimmer v. Pitcher, 2 My. & K. 202. The only difference where the investment is in the name of the husband, wife and a stranger, is that the stranger must be a trustee for the survivor of the husband and wife: In re Eykyn^s Trusts, 6 Ch. D. 119. See also Foickes v. Pascoe, 10 L. R. Ch. App. 343. But the presumption does not arise when the purchaser makes_ the purchase in the names of himself and a woman with whom he was cohabiting or with w'hom he had gone through the mere form of marriage, as in the case of a marriage with a deceased wife's sister after the passing of the Act to render certain marriages valid, 315 * 257 DYER V. DYER. and to alter the law with respect to certain voidable marriages (5 & 6 Will. 4, c. 54): Soar v. Booster, 4 K. & J. 152. It seems formerly to have been held that the presumption of ad- vancement will not arise from the mere purchase by a married luoman out of her separate estate in the names of her children, because a married woman was under no legal obligation to provide for her children: Re De Visme, 2 De G. Jo. & Sm. 17. But it has been held upon proof of the intention to advance by a married woman making a purchase out of her separate estate in the name of her neice, that the latter was absolutely entitled to the property so pur- chased: Beecher v. Major, 2 Drew. & Sm. 431, 13 W. R. (L. C.) 1054. A widowed mother is, it seems, a person standing in such a rela- tion to her child as to raise the presumption in favour of her child. See Sayre Y.Hughes, t) L. R. Eq. 376; there Susannah Barling, widow, after making her will in favour of her two daugh- [ *257 ] ters, transferred East India Stock * which had stood in her own name, into the names of herself and her unmar- ried daughter, and died. It was held by Sir John Stuart, V.-C, that there was a presumption of intended benefit to the unmanned daughter, which was unrebutted, and that the stock belonged abso- lutely to her. "It has been argued," said his Honor, '"that a mother is not a person bound to make an advancement to her child, and that a widowed mother is not a person standing in such a relation to her child as to raise a presumption that in a transaction of this kind a benefit was intended for the child. But the case of a stranger who stands in loco i)arentis seems not so strong as that of a mother. In the case Re De Visme (2 De G. Jo. & S. 17), it was said that a mother does not stand in such a relationship to a child as to raise a presumption of benefit for the child. The question in that case arose on a petition in lunacy, and it seems to have been taken for granted that no presumption of benefit arises in the case of a mother. But maternal affection, as a motive of bounty, is, perhaps, the strongest of all, although the duty is not so strong as in the case of a father, inasmuch as it is the duty of a father to advance his child. That, however, is a moral obligation and not a legal one. In Dyer v. Dyer, Eyre, C. B., shewed that the relationship between parent and child is only a circumstance of evidence. , . . The word 'father' does not occur in Lord Chief Baron Eyre's judgment, and it is not easy to understand why a mother should be presumed to be less disposed to benefit her child in a transaction of this kind than a father. This case was followed by Batstone v. Salter, 19 Eq. 250, where a lady had transferred stock into the names of herself, her daughter, and the daughter's husband, and it was held by Hall, V.C. upon the eidence that it was the intention of the lady to create a beneficial interest in each of the three persons into whose name the stock was transferred, and that therefore upon the death of the lady and her daughter, her son-in-law was entitled to the stock. Upon appeal 316 DYER V. DYER. * 258 (reported 10 L. R. Ch. A'pp. 431) this decision was affirmed by Lord Cairns, L. C, who Heoms rathor to bave decided the case upon the ground of a presumption of advancement than of the evidence of intention for his Lordship in giving judgment says, "Whatever presum})tion there is in favour of an unmarried daughter in the case of a transfer to her, the same presumption arises in this case, where the transfer was to a married daughter and her husband." In the recent case, however of Bennet v. Bennet, 10 Ch. D. 474; in which, however, the case of Batstone v. Salter was not cited). Sir G. Jessel, M. R, upon the * evidence, held [ * 258 ] that an advance from a widoived mother to her son was only a loan, and he was of opinion that the presumption of advance- ment does not arise in the case of a mother, though widowed, as in the case of a father; for he observed, " that though I should have had no hesitation in deciding Saijre v. Hughes (5 L. R. Eq. 376), in the same way as the Vice-Chancellor did, having regard to the evi- dence, I should not have arrived at the same conclusion irrespective of the evidence. We then arrive at this conclusion: that in the case of a mother — that is, the case of a widoived mother — it is easier to prove a gift than in the case of a stranger; in the case of a mother very little evidence beyond the relationship is wanted, there being very little additional motive required to induce a mother to make a gift to her child." In a previous case Sir G. Jessel, M. R., decided that the pre- siimption of a gift does not arise in the case of a stepmother, but he seems there to have been of opinion that it did so in the case of a mother: Todd v. Moorehousc, 19 L. R. Eq. 69, 71. The alteration in the law by the Married Women's Property Act, 1882 (45 & 46 Vict. c. 76), by Avhich a married woman having separate property is rendered liable to the maintenance of her children (sect. 21), may in case of a purchase by her in the name of a child give rise to the presumption of advancement. Where a contract is entered into to purchase real property in the name of a wife or child, although the wife or child as volunteers could not file a bill for specific performance of the contract, never- theless, if the vendor enforces, or is entitled to payment out of the husband's estate, the conveyance must be made to the wife or child. Redington v. Redington, 3 Ridg. P. C. 106; Skidmore v. Bradford, 8. L. R. Eq. 134; Nicolson v. Mulligan, 3 I. R. Eq. 308; and see Dreiu v. Martin, 2 H. & M. 130. [This presumption of advance- ment may be i-ebutted by evidence showing the intent of the real purchaser to secure a trust for himself: Reed v. Huff, 40 N. J. Eq. 229; Jackson v. Matsdorf, 11 Johns. 96; Hodgson v. Macy, 8 Ind. 121; Seibold v. Christman, 75 Mo. 308.] There an agreement for the purchase of land was entered into in the names of the hus- band and wife, and the husband died before the whole of the pur- chase-money was paid. Upon an inquiry in an administration suit as to the real property of the husband, it was held by Sir W. Page 317 * 259 DYER V. DYER. Wood, V.-C, that it did not include the purchased estate, that the purchase enured for the benefit of the widow, and that the unpaid piircbase-money was payable out of the husband's personal estate. But see now Locke King's Act Amendment (30 & 31 Vict. c..69). A binding contract to purchase in the joint names of a man and his wife, has been held to entitle the wife to the benefit of the pur- chase as survivor: thus in Vance v. Vance, 1 Beav. 605, A. B. gave directions to his bankers to invest a sum of money in [ * 259 ] the joint names of himself and his wife, and their * brokers accordingly made the purchase. A. B. died after the con- tract, but before the transfer had been completed. It was held by Lord Langdale, M. K., that the wife was entitled to the stock by survivorship. See also Bailey v. Collett, 18 Beav. 181; Harrison v. Asher, 12 Jur. 834 ; 2 De G. «& Sm. 436. The presumption of advancement also arises in the case of per- sonal as well as of real property. As, for instance, where a person purchases stock, and causes it to be transferred into the name of his child or wife: {Crabb v. Crabb, 1 My. & K. 511; Sidmouth v. Sid- tnoidh, 2 Beav. 447; Bone \. Pollard, 24 Beav. 283; Lorimer v. Lorimer, 10 Ves. 367, n. ; Hejyicorth v. Hepworth, 11 L. E. Eq. 10; Fox V. Fox, 15 Ir. Ch. Rep. 89; O'Brien v. Sheill, 7 I. R. Eq. 255); [If a deed or stock is taken in the name of a wife for the purpose of defrauding the husband's creditors, a trust will result to the husband so as to make the property liable for his debts. Belford V. Crane, 1 C. E. Green, 265,] or married daughter and her husband, Batstone v. Salter, 10 L. R. Ch. App, 431. Also where a husband takes a deposit receipt at a bank in the names of himself and his wife, or alters a deposit receipt from his own name to the names of himself and his wife: Talbot v. Cody, 10 I. R. Eq. 138, 146; Gosling V. Gosling, 3 Drew. 335. So, also, in Ebrand v. Dancer, 2 Ch. Ca. 26, a grandfather took bonds in the names of his infant grand- children. The Lord Chancellor, considering that the grandfather was in loco parentis (the father being dead), said, "The grand- children are in the immediate care of the grandfather; and if he take bonds in their names, or make leases to them, it shall not be judged a trust, but a provision for the grandchildren, Tinfess it be •otherwise declared at the same time;" and decreed accordingly on that reason, though there were other matters. And it seems if a father effects a policy of assurance on the life of his son, a presumption would, in the absence of evidence to the contrary, arise, that he intended it to be for his son's benefit. See Worthington v. Curtis, 1 Ch. D. 419, 423, in which case, however, the evidence showed that the father effected the policy for his own benefit. Where a father of a family, upon a purchase of an estate being . made by the trustees of his marriage settlements, pays them a further sum in order to enable them to complete such purchase, it will be presumed that he did so for the benefit of all persons interested 318 DYER V. DYER. * 260 under the settlements: Ousely x. Anstmtfier, 10 Beav. 461; In re Cnrteis' Trust, 14 L. 11. Eq. 217. [Resultinf:^ trusts of this kind have been abolishod by statuto in Minnesota, Now York, "Wisconsin, Michigan, Kentucky, Maine, Mass. and Ind: Martin r. Martin, 5 Bush. 47; Gildowell r. Sjiaugh, 2<) Ind. ill'J; Kuth v. Oberbruuner, 40 Wis. 260; Durfee v. Pavitt, 14 Minn. 424.] Admission of evidence to rebut or in support of the presumption of adrancement.^ — Many circumstances of evidence have be^n taken into consideration by different equity Judges, as rebutting the presumption of advancement, which have given rise to many * nice distinctions, not very easy to l)o understood ; [ * 260 ] most of them, however, are now disregarded. Thus, at one time, it was thought that the infancy of a child, in whose name a purchase was made, was a circumstance against its being considered an advancement; it is now, however, considered a strong circum- stance in favour of advancement being intended; as in Lamp)lugh v. Lamplugh, 1 P. Wms. Ill, where a father made a purchase in the name of an infant eight years old. Lord Cotcper held, that, "the son, being but eight years old, was unfit for a trustee, and must be in- tended to be named for his own benefit." See also Mmnma v. Munima, 2 Vern. 19; FiQich v. Finch, 15 Ves. 43; ChriMt/ v. Courtenay, 13 Beav. 96; Skeats v. Skeats, 2 Y. & C. C. C. 9. [If a father purchases in the name of an infant son, he is its natural guardian, or quasi guardian and the fact that he receives the rents of the estate does not rebut the presumption: Perry on Trusts Sec. 146; Paschall v. Hinderer, 28 Ohio, 568.] And it is clear, that the argument against advancement being in- tended from the circumstance of the property purchased by the parent being reversionary, and therefore not a proper provision for the child will not prevail, although it has been formerly entertain- ed: Rumboll V. Rumboll, 2 Eden, 17; Finch v. Finch, 15 Ves. 43 ; Murless v. Franklin, 1 Swansl. 13; Williams v. Williams, 32 Beav. 378; and see Pilsworth v. Mossc, 14 Jr. Ch. Rep. 163. The purchase by a parent in the joint names of himself and his son, has been objected to by Lord Hardwicke, as a weaker case for advancement than a purchase in the name of the son alone : Pole V. Pole, 1 Ves. 76; and in Stileman v. Ashdotrn, 2 Atk. 480, he said that it did not answer the purposes of advancement, as it entitled the father to the possession of the whole till a division, besides the father taking a chance to himself of being a survivor of the other moiety: nay, if the son had died during his minority, the father would have been entitled to the whole, by virtue of the survivor- ship ; and the son could not have prevented it by severance, he being an infant. And, moreover, that the father might have other reasons for purchasing in joint-tenancy, namely, to prevent dower upon the estate, and oth'i'r cbiirges. It seems, however, clear, that, at the present day, the objections 319 * 261 DYER V. DYER. of Lord Hardwicke would have little or no weight; for it has been repeatedly held, that a purchase by a parent in the joint names of himself and his child, or by a husband in the joint names of him- self and his wife, will be held an advancement for the child or wife to the extent of the interest vested in them respectively, but abso- lutely if either of them respectively survive him, but if they pre- decease him, he will take as surviving joint tenant. See Scroope v. Scroope, 1 Ch. Ca. 27; Back v. A7idreiv, 1 Yern. 120; Grey v. Grey, 2 Swanst. 599; Lamplugh V; Lampliigh, 1 P. Wms. Ill ; [ * 261 ] Crabh v. Crahh, 1 My. & * K. 511; Dummer v. Pitcher, 2 My. & K. 272 ; Fox v. Fox, 15 Ir. Ch. Rep. 89. A stranger, however, on a purchase by a husband, taking jointly with the hus- band and wife, must hold the estate vested in him in trust for the survivor of the husband and wife: In re Eykyii's Trusts, 6 Ch. D. 115, ante, p. 256, and see Kingdon v. Bridges, 2 Vern. 67; Ru^mboll V. Rumboll, 2 Eden, 17. The principal case, overruling Dickenson v. Shaiv {ante, p. 240, cited), decides that a grant of copyholds, taken by a father in the names of himself and his sons, will be an advancement for the sons, although, according to the custom of the manor, grants were made for lives sttccessu"^. .^ee Murless v. Franfkin, 1 Swanst. 13; Finch v. Finch, 15 Ves. 43; Skeats v. Skeats, 2 Y. &C. C. C. 9; Jeans v. Cooke, 24 Beav. 513, decided upon the authority of the principal case. Another circumstance, which has been considered as an objection against the presumption of advancement, is, that the child has been already fully advanced: in that case he may, it seems, be held a trustee for the father. See Elliott v. Elliott, 2 Ch. Ca. 231; Pole v. Pole, 1 Ves. 76; Grey v. Greij, 2 Swanst. 600; Loyd v. Read, 1 P. "Wms. 608; Redington v. Redington, 3 Kidg. P. C. 190. The obser- vation, however, of the Lord Chief Baron, in the principal case would, at the present day, probably be considered a sufficient answer to such an objection to the presumption of advancement. " The rule of equity," observes his Lordship, " as recognised in other cases, is, that the father is the only judge on the question of a son's provision ; and therefore the distinction of the son's being provided for or not, is not very solidly taken." See Redington v. Redington, 3 Ridg. P. C. 190. And in Sidmoiith v. Sidmotdh, 2 Beav. 456, where it was argued that, as the son was adult, he ought to be considered as provided for, and therefore a trustee for his father. Lord Langdale held that circumstance to be of no weight. " The circumstance," said his Lordship, " that the son was adult, does not appear to me to be material. It is said that no establish- ment was in contemplation, and that no necessity or occasion for advancing the son had occurred ; but in the relation between parent and child, it does not appear to me that any observation of this kind can have any weight. The parent may judge for himself when it suits his own convenience, or when it will be best for his son, to 320 DYER V. DYER. * 202 aecuro liim any benefit which ho vohintarily thinks fit to liestow upon him ; and it does not follow, that, because the reason for do- ing it is not known, there was no intention to advance at all." See also Hepivorth v. Hepicorth, 11 L. R. Eq. 10. If a child is advanced but m '''part no implication [ * 202 ] against advancement arises : Redingfon v. Redingfon, 3 Ridg. P. C 100. And a child will not be considered as advanced who has only a reversionary estate : Lampluyh v. Lamplugh^ 1 P. Wms. 111. Another circumstance is mentioned in the principal case, as going against the presumption of advancement, viz., the father's entering into, and keeping possession, and taking the rents and profits of the purchased property, or the son's giving receipts in the name of the father : in such case, if the son is an infant, the presumption of advancement will not bo rebutted, as the acts of the father, it is said, may be referable to his duty as guardian of his son, and not to an assumption of ownership : Ijoyd v. Read, 1 P. Wms. 008; Mtimma v. Mamma, 2 Vern. 19; Alleyne v. Alleync, 2 J. & L. 544; Lamplvgh v. Lamplugh, 1 P. AVms. Ill; Stileman v. Ashdoioi, 2 Atk. 480; Taylor v. Taylor, 1 Atk. 380; George's Case, cited 2 Swanst. 600;, and see Decoy v. Devoy, 8 Sm. &Giff. 408; Christy v. Courtenay, 13 Beav. 96; Fox v. Fox, 15 Ir. Ch. Rep. 89. The Lord Chief Baron, however, in the principal case, expresses himself dissaiisfied with the reasoning which refers those acts of the father to his guardianship ; and in Grey v. Grey, 2 Swanst, 000, Lord Nottifjgham observed, that, "plainly, the reason of the resolu- tion stands not upon the guardianship, but upon the presumptive advancement." Even where the son is adult, it seems that similar acts of owner- ship by the father will not prevent the presumption of advancement from arising,especially where the son isadvanced but inp)art. A lead- ing authority on this subject is Grey v. Grey, 2 Swanst. 299; S. C, Rep. t. Finch, 838. In that case the father received the profits of the estate purchased in the name of his son for twenty years, made leases, took fines, inclosed part of the estate in a park, built much, and provided materials for more buildings, gave directions for a set- tlement, and treated for a sale of the estate, yet, after all this, it was decided by Lord Nottingham, after much consideration, that the piirchase by the father in the son's name was an advancement. "In all cases whatsoever," said his Lordship, " where a trust shall be between father and son contrary to the consideration and operation of law, the same ought to appear upon very plain, and coherent, and binding evidence, and not by any argument or inference from the father's continuing in possession and receiving the profits, which sometimes the son may not in good manners contradict, especially where he is advanced but in part ; and if such inference shall not be made from the father's perception of profits, it shall never be made from any words between them in common discourse : for, 21 WHITE ON EQUITY. 321 * 263 DYER V. DYER. [ * 263 ] in * those thore raay be great variety and sometimes ap- parent contradiction. Therefoie, where the proof is not clear and manifest, the Coiu't o^ught to follow the law, and it is very safe so to do :" [If any circumstance accompanying the purchase explains why the title is taken in the name of the child and shows that it was not intended to be an advancement, but was intended to be a trust for the father, the presumption of an advancement will be rebutted and the inference of a trust will be established : Clark V. Clark, 43 Vt. 685; Cook v. Bremond, 27 Texas, 457; Gibson v. Foote, 40 Miss. 788; Balford v. Crane, 1 Greene Ch. 265.] Rep. t. Finch, 340; see, however, Murlessy. Franklin, 1 Swanst. 171. Upon the same principle, in Sidmouth v. Sidmouth, 2 Beav. 447, where moueys were invested in the funds by a father in the name of the son, the dividends of which were received by the father during his life, under a power of attorney from his son, it was held, after his death, that this was an advancement, and that the funds belonged to the son. Where, however, a son is fully advanced, the father's entering into possession and into the receipt of the rents or profits of property purchased in the son's name, may be considered as evidence of a trust. See Grey v. etween tbe father and the estate of the son the father was entitled to retain the money for his own benefit. " If," said Mellish, L. J., "the case stood on probability, I should have been of opinion that the father prob- ably intended it for his son's benefit, and that is the presumption of law; but on the other hand, as it is sworn by the father that be'af- fected the policy on his own account, and this is confirmed by the evidence of his wife, and as for a period of ten years he regulaily paid the premiums and kept the policy in his own possession, we think there is no sufficient reason for differing from the conclnsion arrived at by the Vice-Chancellor, that as between the father and the son the policy was the property of the father. . . . There are two reasons why the appeal must fail. First because the Statute (14 Geo. 3, c. 48) is a defence for the Insurance Company only, if they choose to avail themselves of it. If they do not, the question who is entitled to the money must be determined as if the Statute did not exist. The contract is only made void as between the company and the insurer. And, secondly, if that is not so, and if the effect of the Statute is that the Court will give no relief to any party because of the illegality of the transaction, in that case the maxim melior est conditio possidentis, must prevail, and the party who has the money must keep it." A fortiori, parol evidence may bo given by the son to show the intention of the father to advance him; for such evidence is in sup- port both of the legal interest of the son and of the equitable pro- sumption; Lmnplugh v. Lamplugh, 1 P. Wms. 113; Redington v. Redington, 3 Ridg. P. C. 182; 195; Taijlor v. Taylor, 1 Atk. 386. The acts and declarations of the father subsequent to the pur- chase may be used in evidence against him by the son, although they could not, as we have before seen, be used by the father against the son: (Redington v. Redington, 3 Ridg. P. C. 195, 197; Sid- mouth V. Sidmouth, 2 Beav. 455; Stock v. M^Avoy, 15 L. R. Eq. 55;) and the better opinion seems to be, that the subsequent acts and declarations of the son can be used against him by the father where there is nothing showing the intention of the father, at the time of the purchase, sufficient to counteract the effect of those de- clarations; Sidmoidh v. Sidmouth, 2 Beav. 455; Scaivin v. Scaicin, 1 Y. & C. C. C. 65; Pole v. Pole, 1 Ves. 76; Jeans v. [ *266 ] Cooke, 24 Beav. 521; see, * however, Murlessw. Franklin, 1 Swanst. 20. Evidence, however, it seems, will not be admissible to rebut the presumption of advancement where the object of the evidence is to show that tbe person who made the transfer intended it to take effect in fraud of the law. See Childers v. Childers, 3 K. & J. 310; there a father conveyed by registered deed 900 acres of land in the Bedford Level to his son in order to make him eligible as a bailiff. 324 DYER V. DYER. * 267 The son shortly afterwards died, without being aware of the con- veyance, and without haviiif^f been elected bailiff. [If the father or husband pays the money and takes the title in the name of his wife or son for the purpoBo of delaying, hindering or defrauding his creditors, the conveyance is void and a trust results, which cred- itors can enforce to the extent of their debts: Jencks v. Alexander, 11 Paige, 019; Newell v. Morgan, 2 Harr. (Del.) 25; McCartney V. Bostwick, ;}2 N. Y. 53; Crozier v. Young, 3 Mon. 158; Cutter V. Griswold, Walk. Ch. 437.] It was held by Sir W. Page Wood, V.-C, that the gift was irrevocable, and that the heir of the son was entitled to it for his own benetit. "I cannot," said his Honor, "allow the plaintiff to say, 'I intended this deed to operate in fraud of the law.' " Bat evidence will be admissible if it turns out that there was no such intention. Thus in the last mentioned case, upon the discov- ery of fresh evidence therein — a letter to the Registrar of the Level — the order of the Vice-Chancellor was discharged, and leave was given to amend the bill. Whereupon it was held by the Lords Justices, upon the evidence, that neither the father nor the Regis- trar intended or considered the transaction to have the effect of making the son beneficial owner; that, moreover, on the construc- tion of the Bedford Level Act, a dry legal estate was a suiHcient qualification. And that, therefore, as there was nothing illegal in the father's design, aud no intention to represent the son as bene- ficial owner, the father was entitled on the ground of trust or mis- take or both to have a reconveyance from the heir of the son. See Childers v. Childers, 1 De G. & Jo. 482. So likewise a conveyance of property by a father to his son to give him a qualification to vote was held not invalid but a bounty: Maif V. May, 33 Beav. 81. Upon the same principle in Davies v. Ottij, 35 Beav. 208, the plaintiff, believing that his wife, who had deserted him ten years previously, was dead, married a second time, and having after- wards heard that his first wife was living, and thinking that he was liable to be convicted for bigamy, absolutely conveyed his real estate to the defendant in consideration of 20^. It was proved by parol evidence that the deed was executed in pursuance of an arrange- ment that the defendant should hold the property at the disposal of the plaintiff. Ttie plaintifP's alarm was groundless; the consid- eration was never paid. The plaintiff remained in possession, and paid certain sums due to a building society in respect of the prop- erty. The defendant denied the trust, and claimed the benefit of the * Statute of Frauds (29 Car. 2, c. 3). It [ *267 ] was held by Sir John Romillij, M. R., that "the operation of the Statute of Frauds was excluded by the fraud of the defend- ant in refusing to reconvey. And also by reason of a resulting trust within the 8th section of the Statute, his Honor said he was clearly of opinion that there was no illegality in the transaction, 325 * 268 DYER V. DYER. and that the plaintiff was quite justified, morally and legally, in marrying the second wife, although the effect of it may have been that she did not become his wife. The long absence of his first wife was sufficient to justify the plaintiff' in coming to the conclu- sion that she was dead." See also Manning v. Gill, 13 L. R. Eq. 485; Haigh v. Kaye, 7 L. R. Ch. App. 469. As to the presumption of advancement of a wife being rebutted on a purchase by a husband of stock in the joint names of himself and his wife, see Smith v. Warde, 15 Sim. 56, and Hoyes v. Kivi- bersley, 2 Sm. & Gift'. 195. And where it appears from the evidence that a husband has paid money into a bank to an account opened in his wife's name as a mere agency account, for the purpose of convenience, and without any contract or intention to give the wife any interest in such money, it will be the property of the husband and not of the wife. (See Lloyd v. Pughe, 8 L. R. Ch. App. 88, reversing *S'. C, 14 L. R. Eq. 241;) and any surrounding circumstances may be taken into consideration so. as to rebut the presumption of advancement vipon transfer of a banjiing account by a husband into the joint names of himself and his wife: Marshal v. Crutivell, 20 L. R. Eq. 328. Where part of the money invested in stock by a husband in the name of himself and his wife was sold out by them, it was held to become his property. Thus, in Be Gadbury, 11 W. R. (V.-C. K. ) 895, a sum of money was invested in the funds in the joint names of a husband and wife, and she, by power of attorney from him, sold out a portion, and with his knowledge kept it locked up in her own special custody until his death. It was held by Sir B. T. Kinders- ley, V.-C, that the portion which remained in the funds in the joint names of the husband and wife survived to the wife, but that the other portion, which was sold out by her and kept in her custody, formed, on the husband's death, a part of his general personal estate. Purchase in the name of a third party, tvhen void or voidable^ — Where an advancement is made by a person largely indebted at the time, it will be void under the 13 Eliz. c. 5, as against his creditors: [See Dillard v. Dillard, 3 Humph. 41; Creed v. Lancaster Bank, 1 Ohio, 1; Knouff r. Thompson, 16 Pa. St. 357; Cutler v. Tuttle, 19 N. J. Ch. 556.] (Christy \. Coiirte7iay, IS Beav. 96, 101; Bai-rack Y. arCullouch, 3 K. & J. 110; sed vide Dreiv v. [ * 268] * 31arti7i, 2 H. & M. 133), biit it is not within 27 Eliz. c. 4: Drew v. Martin, 2 H. &M. 130, 133. And where the relation of client and solicitor subsists between the parent and child, the ordinary presumption in favour of the transaction being a gift, will be excluded, and the burden of proof, as to its validity, will be thrown upon the son acting as solicitor: Garrett v. Wilkinson, 2 DeG. & Sm. 244; and seeFoickes v. Pascoe, 10 L. R. Ch. App. 352. Where a father transfers shares in an incorporated company to 326 DYER V. DYER. * 2G8 his infant son, althougjh tho son might claim the fihares as an ad- vancement, nevertheless the Court will, on the part of the infant, re- pudiate the shares^, if the company be wound up, and the father will be a contributory {ReicVs Case, 24 Boa v. 818; Richardson's Case, 19 L. R. Ei[. 588; Wcslons' Case, 5 L. 11. Ch. 014); but where the father has ap})lied for shares in the name of his sou, and al- though he has paid a deposit, if the company have refused to allow him to execute the deed on behalf of his son, ho will not be a con- tributory: Maxwell's Case; 24 Beav. 321. \_Doetrine of Result mg Trusts Restated. — The doctrine of result- ing trusts is, that the man who pays the purchase-money is sup- posed to become, or intends to become the owner of the property, and the beneficial title follows the supposed intention. This doc- trine is in analogy to the common law rule that where there is a feoffment without consideration, the use will result to the feoffer. '• In all species of resulting trusts," says Pomeroy, " intention is an essential element, although that intention is never expressed by any words of direct creation. There must be a transfer, and equity infers the intention that the transferee was not to receive and hold the legal title as the beneticial owner, but that a trust was to arise in favour of the party whom equity would regard as the beneticial owner under the circumstances:" 2 Pom. Eq. Jiu'is, Sec. 1031; 2 Story's Eq. Juris. Sec. 1195. If two or more persons furnish the money with which to buy property, in the absence of proof there is a presumption that joint purchasers paid equal amounts: Shoemaker v. Smith, 11 Humph. 81 ; but if it appears that the payments by the parties were unequal the trust then results to them proportionately: McDonald v. Mc- Donald, 24 Ind. 08; Kelley v. Jenness, 50 Me. 455; Baumgartner V- Guesfield, 38 Mo. 30. The doctrine, however, is one of presumptive evidence. It is not a rule of law that a trust must be intended on such a purchase, but it is a reasonable presumption, as a matter of evidence, in the ab- sence of proof to the contrary. It is therefore the privilege of the nominal purchaser to rebut the presumption by direct circumstan- tial evidence to the contrary. The same rule applies to personal property as to realty. In certain cases where the purchase has been made in the name of another, there is a presumption of advancement or provision. The doctrine of advancement is where there is a gift from a parent to a child, which is intended that when the purchase money is paid by the parent, the conveyance is to be taken in the name of the child. ' It is an exception to the general doctrine of resulting trusts. The general rule in regard to advancements may be stated to be that when a purchase is made in the name of a child it will be re- garded prima facie as an advancement and not as a resulting trust for the father. This doctrine is firmly established in the I'nited States. 327 270 TOLLET V. TOLLET. [ * 269] *TOLLET 'o. TOLLET, De Term 8. MichaeUs, 1728. [reported 2 p. WMs. 489.] [S. a, Mos. 46; 2 Eq. Ca. Ab. 233; pi. 16; 663 pZ. 10.] Defective Execution of a Power aided.] — Husband has a power to make a jointure to his wife by deed : he does it by ivill, and he has no other provision ; equity will inake this good. Equity ic ill supply the want of a surrender of a copyhold, in case it be de- vised for payment of debts, or for a wife, or for younger children ; so also ivill it help a defective execution of a power ; but not a non execution. The husband, by virtue of a settlement made upon him by an an- cestor, was tenant for life, with remainder to his first and other sons in tail male, with a power to the husband to make a jointure on his wife by deed under his hand and seal. The husband having a wife, for whom he had made no provision, and being in the Isle of Man, by his last ivill, under his hand and seal, devised part of his lands within his power to his wife for her life. Objection. — This conveyance, being by a will, is not warranted by the power, which directs that it should be by deed; and a will is a voluntary conveyance, and, therefore, not to be aided in a Court of Equity. Sir Joseph Jekyll, M. K. — This is a provision for a wife who had none before, and within the same reason as a provision for a child not before provided for (a) ; and as a Court of Equity would, had this been the case of a copyhold devised, have supplied the want of a surrender; so where there is a defective exeeu- [ * 270 ] tion of the power, be *it either for payment of debts or (rt) Equitable relief will be granted although the wife or child seeking it is provided for. Vide Kettle?'. Townsend, 1 Salk. 187; Smith v. Baker, 1 Atk. 385; Hervey v. Hervey, 1 Atk. 568 ; Chaiiinan v. Gibson, o Bro. C. C. 229. 328 TOLLET V. TOLLET. * 271 provision for a wife or children unprovided for, I shall equally supply any defect of this nature. The difference is betwixt a non execution and a defective execu- tion ofapotcer; the latter will always be aided in equity, under the circumstances mentioned, it being the duty of every man to pay his debts, and a husband or father to provide for his wife or child. But this Court will not help the non-execution of a power, since it is against the nature of a power, which is left to the free will and election of the party whether to execute or not; for which reason equity will not say he shall execute it, or do that for him which he does not think tit to do himself. And in this case, the legal estate being in trustees, they were de- creed to convey an estate to the widow for life in the lands devised to her by her husband's will. Wherever the formalities required by a power are not strictly complied with, the appointment will, at law (unless made valid by statute, see post, pp. 288—290), be void, and the property which is the subject of the power will consequently go as in default of ap- pointment. Courts of Equity, however, although not holding the power to be well executed, will, in favour of certain parties, aid the defective execution of a power by compelling, as in the principal case, the person having the legal interest to transfer it in the man- ner pointed out by the defective appointment. The principle upon which Courts of Equity act in these cases is thus stated by Lord Alvanley, M. R., in the case of Chapman v. Gibson, 3 Bro. C. C. 229; "i have looked," said his Lordship, "at all the cases I can, to tind on what principle this Court goes in supplying a defect, and altering the legal right; it is this: Whenever a man, having power over an estate, whether ownership or not, in discharge of moral or natural obligations, shows an intention to execute such power, the Court will operate upon the conscience of the heir (and the result is the same in the case of any person entitled in default of appoint- ment), to make him perfect this intention." In the same case his Lordship remarked, that the execution of a power, and a surrender of a copyhold, go hand in hand, * precisely on [ ^' 271 ] the same ground." It may, therefore, be considered as a settled rule, that the Court interposes its aid upon the sarue princi- ples and under similar circumstances in cases of a want of a sur- render of copyholds, and a defective execution of a power. See also jRogers v. Marshall, 17 Ves. 297. ['"The principle upon which relief in the case of defective execution of a power rests, is that equity, will recognize a meritorious consideration, and will com plete gifts made on such a consideration in favor of a donor's in- 329 * 272 TOLLET V. TOLLET. tention after death:" Adams on Equity, 98; Porter v. Turner, 3 S. & R. 108; Bradish v. Gibbs, 3 Johns. Ch. 523.] For forms of decrees supplying defects in execution of powers, see 2 Set. Dec. 1255, 4th ed. Surrenders of copyholds to the use of wills were rendei'ed unnec- essary for the future by 55 Geo. 3, c. 192, repealed by 1 Vict. c. 26, which, however, substitutes similar provisions. See sects. 3, 4, and 5. Althouo-h there are decisions leading to an opposite conclusion (Rodgers%. Marshall, 17 Ves. 295; Ellis v. Ninimo, L. G., temp. Snwd. 333), it is now clearly setted, in accordance with the infer- ence which may be drawn from the remark of the Master of the Rolls in the principal case, that equity will not supply a surrender in the case of a covenant in a deed at the instance of per.sons hav- ing merely a meritorious consideration, any more than it will carry into execution a voluntary contract at the instance of the same per- sons. See Jeffenjs v. Jefferijs, Cr. & Pb. 138. \Yhere A. made a voluntary settlement of freeholds and covenanted to surrender copyholds to like uses for the benefit of his daughters. Lord Cotten- hain, C, although he made a decree for carrying the settlement into effect so far as the freeholds were concerned, refused to do so so far as the copyholds were concerned. "With respect to the copyholds," observed his Lordship, "I have no doubt that the Court will not execute a voluntary contract; and my impression is, that the prin- ciple of the Court to withhold its assistance from a volunteer ap- plies equally, whether he seeks to have the benefit of a contract, a covenant on a settlement." See also Tatham v. Vernon, 29 Beav. 604. Moreover, since equity aids defective executions of powers upon precisely the same principles, and for and against the same persons as in the case of supplying surrenders of copyholds, it follows that a mere agreement or covenant to execute a power in favour of per- sons claiming only upon a meritorious consideration will not be aided in equity, unless an intention be thereby shown of executing the power. See Sayer v. Sayer, Innes v. Sayer, 7 Hare, 387, 389. Secus where the consideration is valuable: (Nandike v. Wilkes, Gilb. Eq. Rep. 114; Jennings v. Moore, 2 Vern. 609: Coffer v. Layer, 2 P. AVms. 623; Price v. Price, 14 Beav, 604; In re Dyke's Estate, 7 L, R. Eq. 337;) provided the agreement or covenant be valid and binding, Morgan v. Milnian, 3 De G. Mac. & G. 24. [In cases of accident equity will relieve, if there is a defective execution of power, but not where there is a non- execution, in favor of a pur- chaser, a wife, a child, a creditor, or a charity. Defects which are the very essence of the power will not be relieved against, but the mere formal defects will.] [ *^272 ] * As to the classes in whose favour equity will aid a defec- tive execution of a potver or supply a surrender.^ — Firs^t, equity will aid pw'c/iase?'s: {Fothergill y. Fothergill, 2 Freem. 257; Jackson v. Jackson, 4 Bro. C. C. 462; Sergeson v. Sealey, 2 Atk. 330 TOLLET V. TOLLET. * 273 414; 9 Mod. 890; TFadc v. Paget, 1 Bro. C. C. mS;Burrelly. Crutch- ley, 15 Ves. 544; Affleck v. Affleck, 'f^ Sm. A: Gill. 894; In re Dykes' Estate, 7 L. 11. Eq. 887); and mortgagees (Taylor v. Wheeler, 2 Vern. 564; Jennings v. Moore, 2 Vei-n. ()()9; The London Chartered Bank of Australia v. Lempribre, 4 L. R. P. C. C 572); and lessees (Caiiipljell \. Leach, Amb. 740; Shannon v. Bradstreet, 1 S. & L. 52. Doe V. IVY'/fc?-, 7 T. 11. 478; W'illos, 170; Doicell v. D&w, 1 Y. & C. C. C. 345; King v. Roney, 5 Ir. Cb. Rop. 04, 72) [Whore a power has been defectively executed equity will lend its aid to piirchasers for value, lessees, creditors, and mortgiigees: Beatty v. Clark, 20 Cal. 11; Love r. Mining Co., 82 Cal. 058; King r. Roney, 5 Ir. Cb. R. 04; Hout V. Hout, 20 Obio (N. S.), 119.] from and of the donee; mortgagees and lessees being purchasers ])ro tan to. And it has been laid down, "That in order to constitute a pxirchaser in whose favour a defective execution of a power can be aided, there must bo a con- sideration and an intention to purchase, either proved or to be pre- sumed:" per Sir George Turner, V.-C, 9 Hare, 709. Secondly, equity will aid creditors. Thus, where a person directed his copyhold estate to be sold for payment of debts, and died with- out having surrendered it to the use of his will, equity decreed the surrender to be supplied, and the copyhold estate to be sold. See 'Bixby V. Eley, 2 Bro. C. C. 325; ^\ C, 2 Dick. 098; Ithell v. Beane, 1 Ves. 215; Tudor \. Anson^ 2 Ves. 582; Fothergill v. Fothergill, 2 Freem. 257. In Wilkes v. Holmes, 9 Mod. 485, power was given, in a marriage settlement, to the husband and wife to raise 2000Z. out of certain lands of the wife's; and if no part should be raised in the life of the husband and wife, then it should be lawful for the survivor of them by will duly executed, to raise that sum, for the purpose of paying the debts of the husl)and and wife, or either of them, or making a provision for younger children. The wife, upon the death of the husband, defectively executed the power; it was objected, that the debts which were to be paid by means of the power were the debts of the husband, whereas the estate was originally the wife's. However, Lord Hardwicke supplied the defect, observing that the debts were expressly provided for by the deed of settlement. Where, moreover, a person has a general power of appointment over properly which in default of ai)pointment is given over, if he exercises such appointment in favour of volunteers by deed, or bv will, equity will interfere and intercept such property in aid of the assets of the appointor for the benefit of his creditors, but if he does not exercise his j)ower equity * cannot inter- [ * 273 ] fere, and the persons entitled in default of appointment will take the property. See Thompson v. Toicne, 2 Vern. 319; Holmes v. Coghill,'l Ves. 499, 12 Ves. 200; Fleming \. Buchanan, 3 De G. Mac. & G. 970. In the case of a married woman, see In re Harvey's Estate, 18 Ch. D. 210; and the note to Hulme v. Ten- ant, post, and the cases there cited. 331 * 274 TOLLET V. TOLLET. Thirdly, charities will be aided. "I take," says Lord Northing- ton, "the uniform rule of this Court, both before, at, and after the Statute of Charitable Uses (43 Elizabeth, c. 4), to have been, that where the uses are charitable, and the person has in himself full power to convey, the Court will aid a defective conveyance to such uses": Attorney -General v. Tancred, 1 Eden, 14. [Equity will aid persons who have a meritorious standing. In this class is in- cluded a charity: Bispham's Eq., Sec. 194; Pepper's Will, 1 Par- sons' Eq. 436, 446, 451.] And the intent of that Statute, it has been said, "was to make the disposition of the party as free and easy as his mind, and not to oblige him to the observance of any form or ceremony." Attoi^ney -Gene- ral \. Rye, 2 Vern. 453; see also Attorney- General \. Burdet, 2 Yern. 755; Piggot \. Penrice, Prec. Ch. 471; Com. Rep. 250; Attorney- General V. Sibthorpe, 2 Russ. & My. Ill n. In Innes v. Sayer (7 Hare, 377), a testatrix had power to dispose of certain sums of stock by her last will and testament, or any writing purporting to be her last will and testament, to be by her signed and published in the presence of, and attested by, two or more credible witnesses. The testatrix by her will, dated in January, 1833, unattested, and not referring to the power, gave certain sums of stocks to charities She afterwards made eight other unattested testamentary papers, giving legacies, or revoking legacies, previously inserted, the last of which papers was dated the 1st of September, 1836; and at the foot of it she had written as follows: — "This will has not been witnessed, as I intend, if I am spared, to write it out fair." The testatrix died in June, 1844. It was held by Sir James \Vigram, V.-C, that the de- fect in the execution of the power oiight to be supplied in equity in favour of the charities. "The principle," said his Honor, "upon which the Court appears to go is this, that if a person has power, by his own act, to give property, and has, by some paper or instru- ment, clearly shown that he intended to give it, although that pa- per, by reason of some informality, is ineffectual for the purpose, yet the party having the power of doing it by an effectual instru- ment, and having shown his intention to do it, the Court will, in the case of a charity, by its decree make the instrument effectual to do that which was intended to be done. It is not for me to give any opinion whether the principle is right or not. There [* 274] appears to be very high authority *for the application of the principle, independently of the Statute of Charitable Uses (43 Elizabeth, c. 4), and it has been applied since the Statute." See S. a, affirmed on appeal, 3 Mac. & G. 606, Tudor on Charit- able Trusts, p. 37, 255, 2nd edit. The Statute of 9 Geo. 2, c. 36 (commonly called the Statute of Mortmain), which requires certain solemnities on gifts to Charitable Uses (see Tudor on Charitable Trusts, p. 41, 2nd edit.), does not repeal the Statute of Charitable Uses (43 Elizabeth, c. 4). It fol- lows, therefore, that if in an appointment to a charity the solemni- 332 TOLLET V. TOLLET. * 275 ties imposed by 9 Goo. 2, c. BO, are attended to, the gjift will oper- ate as an appointment under the Statute of Charitable Dhcs, although the instrument be not executed in the manner required by the in- strument creating the power. Sug. Pow., p. 209, 8th edit. Fourthly, equity will aid a ivife and a legitimate child of the donee of the power, although they claim merely as volunteers, upon a meritorious consideration; as, for instance, upon a provision made for them after marriage: Fothergill v. Fothergill^ 2 Freem. 257; Sarth V. Blavfrey, Gilb. Eq. liep. 106; Sneed v. Sneed, Amb. 64; Churchman v. Hervey, Amb. 335; Medicin v. ,'Sandham, 3 Swanst. 680; Affleck v. Affleck, 3 Sm. & Gift". 394; Proby v. Landor, 28 Beav. 504. [See Dennison v. Goehring, 7 Barr, 175; Porter v. Turner, 3 S. & R. 114.] "In cases,'' says Lord Hardwicke, "of aiding the defective execution of a power, either for a wife or a child, whether the provision has been for a valuable consideration has never entered into the view of the Court, l)ut being intended for a provision, whether voluntary or not, has been always held to entitle this Court to give aid to a wife or child to carry it into exe- cution, though defectively made:" Hervey v. Hervey, 1 Atk. 567; Barron v. Consfabile, 7 Ir. Ch. Rep. 467. Although an inference to the contrary might be drawn from the principal case, it is now clearly established that a wife or child, al- though provided for, will be entitled to the aid of equity. "I am of opinion," says Jjord Hardwicke, in Hervey v. Hervey, "that the rule as laid down by the defendant's counsel, that a wife or child, who comes for the aid of this Court to supply a defective execution of a power, must be entirely unprovided for, is not the right rule of the Court. I think the general rule, that the husband or a father are the proper judges what is a reasonable provision for a wife or child, is a good and invariable rule:" 1 Atk. 508; see also Kettle v. Toivnsend, 1 Salk. 187; Smith v. Baker, 1 Atk. 385; Chapmanx. Gibson, 3 Bro. C. C. 229. And a defective execution will accord- ingly be executed in favour of a child although it may place him in abetter * condition than the other children if [ * 275 ] they be otherwise provided for, the parent being considered the best judge as to the quantum of the provision. See Chapman V. Gibson, 3 Bro. C. C. C. 230; Hume v. Eundell, 6 Madd. 331 ; Lit- cena v. Lucena, 5 Beav. 249; Morse v. Martin, 34 Beav. 500. To no other persons, except a wife or legitimate child, will the aid of the Court be granted, upon the ground of the provision being for a meritorious consideration; neither to a husband ( Watt v. Watt, 3 Ves. 244; Hoodie v. Reid, 1 Madd. 516; Hughes v. Wells, 9 Hare. 749, 769); nor to a natural child (Fursaker v. Robinson, Prec. Ch. 475); Tudor v. Anson, 2 Ves. 582); [Breit & Yeaton, 101 111. 242.] nor to a grandchild (Bland v. Bland, 2 Cox, 349; Pen-y v. White- head, 6 Ves. 544; and 1 "VVatk. Copyh. 136, 138); nor to a father {Sloane v. Lord Cadogan, App. to Sug. on Powers, No. 9, 7th edit.); nor to a mother, brother, or sister [Goodwyn v. Goodicyn, 1 Ves. 333 * 276 TOLLET V. TOLLET. 228; Goring v. Nash, 3 Atk. 189, overruling Watts v. Bullas, 1 P. AVms. 60); nor to a nephew or neice (Strode^. Riissel, 2 Vern. 621, 625; Marston v. Goivaii, 3 Bro. C. C. 170); nor to a cousin {Tudor V. Anson, 2 Ves. 582) ; nor to a settlor defectively executing a power in his own favour {Ward v. Booth, cited 3 Ch. Ca. 69, 92; Ellison v. Ellison, post, 273, 6 Ves. 656). A fortiori equity will not afford its aid to a mere volunteer, in noway related to the person defectively executing a power: Smith v. Ashton, 2 Freem. 309; Sergeson \. Sealey, 2 Atk. 415; Godwin v. Kilsha, Amb. 684. Next, as against ivhom equity ivill aid a defective execution of a power, or supply a surrender.'] — It is clear, from the principal case, that aid will be granted as against the remainderman who takes, although by purchase, subject to the power Coventry v. Coventry, 2 P. Wms. 222; Shannon v. Bradstreet, 1 S. & L. 52); and ^Iso in general as against an heir-at-law, or customary heir : Smith v. Ashton, 1 Ch. Ca. 263, 264. A defective execution of a power has been aided in equity in favour of a sister as against her brothers who were provided for, and who in default of appointment would have participated in the property : Morse v. Martin, 34 Beav. 500. It has, however, bee a a question of much difficulty, whether equity will afford its aid as against an heir totally unprovided for. In Chapman v. Gibson, 3 Bro. C. C. 229, Lord Alvanley thought that the heir, being a son of the testator unprovided for, could not be relieved against. "The principle," said his Lordship, "must be this, that the testator being under an obligation to do an [ * 276 ] act, we will compel the heir to perfect it; but we will ^ not compel him to fulfil an obligation at the expense of another; and, if the testator has totally forgot to make any provision for his eldest son, this shall be an answer to the claim of the wife, or other children." Lord Rosslyn, however, thought that the Court ought never to enter into the consideration of the heir being or not being provided for. "I confess," observes his Lordship, "it appears to me, there is no ruleat all, unless the Court takes it upon the relation in which they stand. Otherwise it is all loose and arbitrary. It never entered into the mind of the Court to consider that argument, where the want of a surrender was to be supplied for creditors: but the same sort of argument might be used there — that the heir was starving, the creditors opulent and severe. Those circumstances are not fit to be considered by the Court. The Coul't must go upon a certain line, which is very obvious — that^, where the will expresses an intention to do that which legally and morally the testator ought to do, so simple a form as supplying the want of a surrender shall not im- pede the performance of that duty:" Hills v. Dotniton, 5 Yes. 564. But, it was unnecessary to decide that point in Hills v. Doicnton. for the heiresses-at-law, against whom the want of a surrender was 334 TOLLET V. TOLLET. * 277 supplied, wore married, and therefore in Lord Rosshjyi's opinion, provided for. Lord Alvanleij, nevertheless, still retained the opinion he express- ed in Chapman v. Gibson. See his observations on Hills v. DoumUm, Siigd. Pow. vol. ii., App. No. xxiv., 7th ed. In Braddick v. Mattock, C Madd. 863, Sir J. Leach, V.C, said, "This Court will not supply a surrender against the heir-at-law unprovided fcr; but it considers the parent as the best judge of the provision of that heir, and will not examine the sufficiency of the provision, unless perhaps in a case in which it may be challenged as illusory." In Rodgcrs v. Marshall, 17 Ves. 294, Sir W. Grant, M. R., seemed inclined to think, that, as against a grandchild, being the heir-at law, and un- pi'ovided for, the want of surrender ought not to be supplied, and directed an inquiry as to whether he was provided for. But see Hills V. Doivnton, 5 Ves. 565. It is clear, however, that a surrender will be sitpplied as against a collateral heir, whether provided for or not; as a person is not supposed to be under any obligation to provide for a collateral heir {Fielding v. Wimrood, 16 Yes. 90; see also Chapman v. Gibsort, 8 Bro. C. C. 2'29; Smith v. Baker, 1 Atk. 385); and also against / in equity: Shannon v. Bradstreet, 1 S. «fe L. 63. [Equity will erect an attempted execution, but will not supply an execution if none has been attempted: Wilkinson v. Getty, 13 Iowa, 157; Johnson v. Gushing, 15 N. H. 298; Howard v. Carpen- ter, 11 Md. 259; and Norcum v. D'CEnch, 17, No. 98.] Thus equity will aid a defect which arises from the instrument itself being informal or inappropriate, if the intention to execute the power appear clearly in writing, where, for instance, a donee of a power covenants to execute it (Fothergill v. Fothergill, 2 Freem. 256; Coventry v. Coventry, Franc. Max., the last case; S. C, 2 P. Wms. 222; Sergeson v. Sealey, 2 Atk. 414; Sarth v. Lord Blanfrey, Gilb. Eq. Rep. 166); — or when, by his will, he desires the remain- dermen to create the estate authorised by the power {Vernon v. Vernon, Amb. 1): — or if he enters into an agreement to execute it (Shannon v. Bradstreet, 1 S. &. L. 52; Mortlock v. Buller, 10 Ves. 292; Coventnj v. Coventrii, Franc. Max., the last case; Lowry v. Dufferin 1 Ir. Eq. Rep. 281; Doivell v. Deiv, 1 Y. & C. C. C. 345): 335 * 278 TOLLET V. TOLLET. — even although he keep the agreemsBt in his own posession (King V. Roney, 5 Ir. Ch. Eep. 64, 77); — or if by a mere writing, not sealed and delivered, he expresses an intention to give property which he had power to appoint by instrument sealed and delivered Kennard v. Kennard, 8 L. R. Ch. App. 230) — or if he promises by letters to grant an estate (Campbell v. Leach, Amb. 740; Sugd. on Powers, App. No. xxv., 7th ed. ; and see Blake v. French, 5 Ir. Ch Rep. 246) — or to give a security (The London Chartered Bank of Australia v. Lempi^ibre, 4 L. R. P. C. C. 572); which he could only do by the exercise of his power. So an agreement to sell land to a Railway Company at a sum to be fixed by arbitrators, will be aided in equity as an informal execution of a general power of appointment: In re Dykes'" Estate, 7 L. R. Eq. 337. A recital by the donee of a power, in the marriage settlement of one of his daughters, who was one of the objects of the power, that she was entitled to a share of a sum to which she could only be entitled by his appointment, has been held sufficient evidence of his intention to execute the power, and was therefore aided as a defective execu- tion of a power: Wilson v. Piggott, 2 Ves. jun. 351; Poulson v. Wellington, 2 P. Wms. 533. So also where a donee of a power, in an answer to a bill in Chancery, states that he " appoints, [ ^^278 ] and intends, by * writing in due form, to appoint: " Car- ter v. Carter, Mos. 365; and see Fortescue v. Gregor, 5 Ves. 553. But when a donee of a power concurs in a deed of settlement, for purposes unconnected, with the fund subject to the power, and in ignorance of the existence of the power, such concurrence will not operate as a defective exercise of the power which would be aided in equity, even though the deed purported to pass the fund: Grif- fith Boscawen v. Scott, 26 Ch. D. 358, 362. A parol contract to execute a power, is void, as against a remain- derman, although, in the case of a parol contract to grant a lease under a power, the lessee may have expended money in improve- ments, on the faith of the parol contract (Carter \. Carter, Mos. 370; Shannon V. Br adstreet, 1 S. & L. 72; Blore v. Sutton, 3 Mer. 237; Lowry \. Lord Dufferin, 1 Ir. Eq. Rep. 281; and see il/o7-gra9i v. Milman, 10 Hare, 279; 3 D. G. Mac. & G. 24, 32, 33; a Fay v. Burke, 8 Ir. Ch. Rep. 225); unless after the death of the tenant for life, the remainderman lie by and suffer the lessee to continue to improve the estate: Stiles v. Coicper, 3 Atk. 692. Equity will afford its aid, where there has been a defective exe- cution by a formal or appropriate instrument, thus if the instru- ment, whether it be a deed or will, is by the power required to be executed in the presence of a certain number of witnesses, and it is executed in the presence of a smaller number; or if it is required to be signed and sealed, and sealing is omitted, equity will supply the defect: Wade v. Paget, 1 Bro. C. C. 363; Cockerell v. Cholmeley, 1 Ru88. & My. 424; 1 C. & F. 60. 336 TOLLET V. TOLLET. * 279 And in wills not coming within the oporation of tlio Inlo \\'ill8 Act (1 Vict. c. 26), an appointm(>nt of per.sonalty n^qnired to be attested by two witnesses, lias been aided, though attested by no witness: Lucena v. Lucena, 5 Beav. 249. So, also, where a power of appointment over land was required to be exercised by will dulij executed, and a will was made in exer- cise of the power, attested by hco witnesses only, Lord Hardioicke was of opinion that the will was not duly executed within the meaning of the power, but that the Court ought to aid the defective execution in favour of the creditors and younger children, consider- ing their claim as under the settlement, and the mode of executing the power as depending on the settlement, and not on the Statute of Frauds (29 Cai'. 2. c, 3), except as the words "duly executed" were construed by reference to that statute. If this had been a voluntary execution of the power, and not for payment of debts, or for valuable or meritoroius consider- ation it must have stood on its own * ground, and would [ * 279 ] not have been supported: Wilkie v. Holmes, 1 S. & L. GO, n. ; S. C. reported under the name of Wilkie v. Holme, 1 Dick, 165; S. C.,9 Mod. 485; and see Smith v. Ashton, 1 Ch. Ca. 263; Morse, Martin., 34 Beav. 500. The law has been altered by the late Wills Act (1 Vict. c. 26), which enacts "that no will shall be valid unless it shall be in writ- ing and executed in manner thereinafter mentioned; that is to say, it shall be signed at the foot or end thereof, by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator, in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will, in the presence of the testator, but no form of attestation shall be neces- sary " ('sect. 9); and "that no appointment made by will in ex- ercise of any power shall be valid, unless the same be executed in manner thei'einbefore required ; and everj' will executed in manner thereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity " (sect. 10). Hence it has been decided that although when under a power to be executed " by deed or will," a mere memorandum 7iot testamen- tary, in execution of the power, may, by being turned into a deed, be aided in equity [Kennard v. Kennard,8 L. R. Ch. App. 227), nevertheless, if the document be testamentary, if ii be not executed by two witnesses in accordance with the provisions of the Wills Act (1 Vict. c. 26), even although as a will made abroad, it be admitted to probate under 24 & 25 Vict. c. 114, it will not be so aided: In re Kirivan's Trusts, 25 Ch. D. 373, 381. A power will, as in the principal case, be aided, if it has been exe- 22 WHITE ON EQUITY. 337 * 280 TOLLET V. TOLLET. cuted by a icill, when it ought strictly to have been executed by deed: Sneed v. Sneed, Amb. 64; Mills v. Mills, 8 Ir. Eq. Rep. 192. In Harvey v. Hervey, 1 Atk. 561, Barnard. 103, a power was given to the husband to make a jointure of such of the lands in a deed as he thought proper, not exceeding 600/!. a year. The hus- band by successive deeds charged all the lands v/ith rent- charges ex- ceeding 000?. a year. Lord Hardicicke supplied in favour of the wife the defect occasioned by the excessive execution of the power. Upon the same principle in Barron v. Constabile, 1 Ir. Ch. Rep. 467, where the power was to charge a jointure not exceeding 600Z. a year by deed or will, and the donee of the power devised [ * 280 ] instead of *charging a jointure, the devise was upheld as a valid execution of the power. See also Bruce v. Bruce, 11 L. R. Eq. 371. But equity will not aid a defective execution of a power, if the in- tention of the author of the power would be thereby defeated. Thus, although there is no doubt that a Court of equity will aid the defective execution of a power in favour of a creditor or purchaser, although the donee be a married woman {Pollard v. Crenmlle, 1 Ch. Ca. 10; Dowell v. Deiv, 1 Y. & C. C.'C. 345; Doe v. Weller, 7 1. R. 480; Dilion V. Grace, 2 S. & L. 446; Stiad v. Nelson, 2 Beav. 245; The London Chartered Bank of Australia v. Lempi'i^re, 4 L. R. P. C. C. 572, overruling extra-judicial observations in Martin v. Mitchell, 2 J. & W. 424), the Court, in such cases, must be satisfied that the formalities which have not been observed, are no more than matters of form; and that the donee of the power has not by their non- observance been deprived of ary of the protection which the due exercise of the power would have aftorded her. For instance, in Reid V. Shergold, 10 Ves. 370, where a lady, entitled under a devise to copyholds for life, with a power to appoint them by will, sold and surrendered them to a purchaser, Lord Eldon held, that the pur- chaser could not be aided in equity. " The testator," said his Lord- ship, " did not mean that she should so execute her power — he in- tended that she should give by will, or not at all; and it is impos- sible to hold that the execution of an instrument or deed, which, if it availed to any purpose, must avail to the destruction of that power the testator meant to remain capable of execution to the moment of her death, can be considered in equity an attempt in or towards the execution of the power." And the Court looks with especial jealousy on any such transac- tion, in which the wife may have acted under the influence of her husband: Hopkins v. Myall (2 Russ. & My. 86), Thackivell v. Gardiner, 5 De G. & Sm. 58 and Majorihanks v. Hovenden, 6 Ir. Eq. Rep. 238. So an appointment not made within the time prescribed by the donor of the power will not be aided in Equity, where the time within which the appointment was to be made, was not a mere 338 TOLLET V. TOLLET. * 2bl matter of form, but of the substance and essence of the power. See Cooper v. Martin, 8 L. R. Ch. App. 47. Iq order that the Court should be able to rectify any informality in the execution of a power, it is essential, not only that the persons to be benefited, and the amount of benefit, should be suliiciontly indicated, but that the intention to pass the property, thoutrh not necessarily under the power, Carver v. Richards, 27 Beav. 488, * 495) should be clearly shown {Buckell v. Blenkkorn, [ * 281 ] 5 Hare, 131 ; West v. Ray, Kay, 885). Moreover, the Court will not aid a defective instrument, where there does not appear thereby to have been on the part of the do- nee a distinct intention to execute the power. See Garth v. Torrn- send, 7 L. R. Eq. 220. There Mrs. Gartd, having power to;iy)point funds amongst her children by deed, or by her last will in writing, or any writing purporting to be or being in the nature of her last will, or any codicil thereto, to be signed and published in the prp's- ence of, and to be attested by, two credible witnesses, died intestate; but left in an envelope, addressed to her son, an unattested memor- andum (signed by herself, and dated eight years before her death), " For my sons and daughters. Not having made a will, I leave this memorandum, and hope my children will be guided by it, though it is not a legal document. The funds I wish divided as follows" (and after apportioning the funds among her children, and making a bequest to them out of another fund, and a gift of the residue, she thus ends the memorandum): "This paper contains my last wishes and blessings upon my dear children, and thanks for their love to me." It was held by Sir W. M. James, V.-C, that the Court could not aid any defects in the execution of the memoran- dum, so as to give it validity as an appointment. "The true test," said his Honor, "is that mentioned by Mr. Osborne Morgan : is there a distinct intention to execute the power? Now, here the persons to take and the amount to be taken are sufficiently pointed out, but where the instrument fails is in intention to execute the poiver. Mrs. Garth purposely abstained from executing it. She simply wished her children to be quite unfettered, saying, 'I tell you my wishes, but I do not mean to tie you up by any legal document. I know I have power to appoint these funds, but I do not exercise that power.' The jurisdiction of tlie Court is to supphj defects occa- sioned by mistake or inadvertance: not to supjyJy omissions intention- ally made^ But a donee may have sufficiently indicated a present intention to execute a power, although he may in a certain event express an intention to give the property by a more formal document. See Kennard v. Kennard, 8 L. R. Ch. App. 227. There a lady, having • a power of appointment by deed or will over certain leasehold pro- perty, which in default of appointment was vested absolutely in her, wrote and signed an unattested paper, by which, after referring to the property iu terms sufficient to identify it, she proceeded: "If I 339 * 283 TOLLET V. TOLLET. die suddenly, I wish my eldest son to have it. My inten- [ * 282 ] tion is to make it over to him legally if * my life is spared." It was held by the Court of Appeal, affirming the decision of the Master of the Rolls, that the memorandum was a defective execution of the power by the donee, and that equity would relieve against the defect in favour of the eldest son. '"She expresses," BHid James, L. J., "her intention that her son shall have the property which is the subject of the power. ... In Garth v. Townsend (7L. R. Eq. 220) I considered that, upon the true construction of the instrument, there was no intention to give the property, but only to request the persons taking it in default of appointment to make a certain application of it, without legally binding them to do so." And Mellish, L. J., observed, "She means in any event to give the property, but to do so by a more formal instrument if her life is spared." Formerly, when trustees under a common power of sale and ex- change sold an estate without the timber, such exercise of the power was held not only to be invalid at law but also in equity, where the defect in the execution could not be aided. Thus, in Cockerell v. Cholmeley, 1 Russ. & My. 418, where an estate was devised to a trustee and his heirs, to the use of A. for life, without impeachment of waste, and a power of sale, with the consent of the tenant for life, was given to the trustee, the trustee, with the consent of the ten- ant for life, sold the estate under the power, without the timber, which was to be taken at a valuation: at law the power was held to be badly executed; and, upon a bill being tiled in equity for relief by the purchasers of the estate, Sir J. Leach, M. R., held, that they were entitled to none. This case was, on appeal to the House of Lords, affirmed : 2 Russ. & Mv. 751; 6 Bligh, N. S. 120; 1 C. &F. 60; Cholmeley v. Paxton, 3 Ring. 207; inding under the Statute of Frauds (20 Car. 2, c. 3), if after the death of the tenant for life, being donee of the power, the remainderman lay by and allowed acts of part performance and expenditure of money on the premises by the lessees, the agreement would be enforced against him (Stiles v. Coicper, 3 Atk. 692; Shannon v. Bradstreet, 1 S. & L. 73); but this would not be the case if such acte of part perfoi'mance or expendi- ture had only been allowed by the tenant for life: Morgan v. Mil- man, 3 De G. Mac. & G. 24. Nor can the lessee, in the absence of a covenant for quiet en- joyment or the like on the part of the tenant for life, enforce any claim against his estate by way of damages (Blore v. Sutton, 3 Mer. 237; Stamford v. Omly, 1 S. & L. 65 cited), though he may do so under such covenant: Vernon v. Lord Egremont, 1 Bl. (N. S.) 554. Although the Covirt is unable to decree specific performance of a lease against the remainderman in consequence of the best rent not having been reserved according to the requirement of the power by 344 TOLLET V. TOLLET. ^ * 288 the doneo being tenant for life, nevortholess, in the absence of fraud, and there being a ])onulide intention to execute the power, the interest of the tenant for Hfe may be bound to the extent lie was able to bind it, unless there was some inconvenience in making a decree for partial performance of the contract: Dyas v. Cruise, 2 J. & L. 400; Graham v. Oliver, 3 Beav. 128; Lawrenson v. Butler, 1 S. & L. 19; Doe d. Bromley v. Bettison, 12 East, 305. Sed vide Harnett v. Yielding, 2 S. & L. 549. And a purchaser under a power of sale from a tenant for life, with notice of an agreement to lease under a power, is bound to perform it in the same manner as the vendor was: Taylor v. Stibbert, 2 Yes. jun. 437. A Court of equity will not grant its aid where there is a defect in the execution of a power under and Act of Parliament, which must always be taken strictly; thus, where a tenant in tail made a lease for years, not authorised by 32 Hen. 8, c. 28 (re- pealed by * 19 & 20 Vict. e. 120, s. 35, since repealed by [*288 ] 40 & 41 Vict. c. 18, 8. 58), equity would not make good the defect: RosiveWs Case, per Hutton, Ro. Abr. 379, fol. 6. See also Cowp. 2G7; 2 Burr. 1146; Anon., 2 Freem. 224. Non-execution of a power. ^ — We must, however, distinguish be- tween the defective execution and the non- execution of a power, for a non-execution of a power will not be aided: a person, for in- stance, is not entitled to the aid of the Court on the ground of the execution of the power having been prevented by accident or by the sudden death of the donee: Piggott v. Penrice, Com. 250; Gilb. Eq. Rep. 138. So, disability to sign from gout has not been aided: Blockvill V. Ascott, 2 Eq. Ca. Abr. 659, n. ; and see Buckcll \. Blenk- horn, 5 Hare, 131. So the non-execution of a power through mis- take will not be aided; as, for instance, where a donee under a mistaken apprehension that certain persons whom he desired to benefit would take on his leaving the power unexecuted, for in such case the expressed intention is not to make any appointment: Langslotv v. Langsloiv, 21 Beav. 553. AVe may, however, except those cases in which the execution of a power has been prevented by fraud, as where the deed creating the power has been fraudulently retained by the person interested in its non-execution, for then it seems equity will afford its aid: 3 Ch. Ca. 83, 84, 122; Ward v. Booth, cited 3"Ch. Ca. 69. See, also, Piggott V. Penrice, Prec. Ch. 471; Vane v. Fletcher, 1 P. Wms. 354; Luttrell v. Olmius, cited 11 Ves. 683; Seagrave v. Kincan, 1 Beat. 157; Bulkley v. Wilford, 2 C. & F. 102; Middletonx. Middle- ton, 1 J. &. W. 94. Defects in the execution of powers cured by 8tatute.^^ — The legisla- ture has extended the remedies of lessees by the Act for granting reliefs against defects in leases made under power of leasing in certain 345 * 289 TOLLET V. TOLLET. cases (12 & 13 Vict. c. 26), suspended in its operation by a subse- quent Act in the same session (12 & 13 Vict. c. 110) until the 1st of June, 1850, and amended by 13 & 14 Vict. c. 17, repealing sect. 3, and by "The Statute Law Rev. Act," 1875 (38 & 39 Vict. c. 06). repealing the latter part of sect. 7 and the whole of sect. 9 of 12 & 13 Vict. c. 26, and sects. 1 and 4 of 13 & 14 Vict. c. 17. As to decisions under these acts, see Ex parte Cooper, 34 L. J. Ch. 373, 377; Doe v. Oliver, 2 Sm. L. C. 775. The effect of the original Act before the repeal of sect. 3 is, it is observed by a learned writer (Farwell on Powers, p. 291), that the lessee, under an invalid lease granted in the intended exercise of a power, became, on the mere acceptance of rent by the re- [ * 289 ] mrinderman, * tenant fi'om year to year on the terms of the lease, with a right to require either a confirmation of the contract or a lease in accordance with the power, the remain- derman having no option to require a lease in accordance with the terms of the power. The effect of the original and amendment Acts is that the mere acceptance of rent, without the memorandum mentioned by sect. 2 of the amendment Act, makes the lessee tenant from year to year on the terms of the void lease, with the right to demand a lease either in accordance with that contract or with the terms of the power ; but if the remainderman is willing to confirm the contract without variation, the lessee cannot insist upon having a lease in accordance with the terms of the power. The acceptance of rent, coupled with the memorandum mentioned in sect. 2 of the amended Act, operates as a confirmation of the lease. It may here be mentioned that if a will is in other respects pro- perly executed, probate cannot be refused upon the ground that the power under which it has been made has not been properly followed. See Barnes v. Vincent (5 Moore, P. C. C. 201), where a decision of the Prerogative Court refusing probate to the will of a feme covert, on the face of it not executed according the requisites of the power, was reversed by the Judicial Committee of the Privy Council. " It is certain," said Lord Brougham, " that there is a considerable class of cases, in which equity will relieve against a defective execution of a power. Thus in favour of a purchaser ; of a creditor ; of a child ; equity will relieve. But if probate shall have been refused by the Ecclesiastical Court, on the ground of the execution being defective, no such relief can ever be extended in any case ; because the Court, which alone can relieve, never can know if the instrument had existed, nor can see the defect in the execution ; and the Court of Probate is bound by the fact of the defective execution, and can- not remedy it. Thus a feme covert having made a will in favour of a child, and imperfectly executed it, the child must be excluded, by probate being refused ; when, had a Court of equity been put in possession of the instrument, it would have held the defective exe- cution relievable in the child's behalf." See and consider Este v. 346 TOLLET V. TOLLET. * 290 Este, 15 Jur. 150; De Chatelain v. De Pontigny, 1 Swab. & Tr. 411; Mahon v. Hodyens, (3 I. H. E. 339. Bnt it seems now since the Judicature Act, 1873 (see sect. 24, Hub-s. 7) that where the will is made uuder a ])ower, the Probate Division, if it has all persons interested before it, ought to decide the question not only whether there is a power, but whether it is well executed. In the goods of Tharp, 3 P. D. 76. * The will in Barnes v. Vincent was made prior to the [ * 290 ] passing of the Wills Act (1 Vict. c. 26), and it must be re- membered, that by that Act, no appointment made by will, in exer- cise of any power, will be valid, unless the same be executed with the solemnities required by the Act; but if those are complied with, the appointment will be valid, although some additional or other form of execution or solemnity may have been required by the power. See sects. 9 and 10, ante, p. 279. In the goods of Tharp, 3 P. D. 80. An appointment by deed is now rendered valid in many cases, al- though not executed and attested by all the solemnities required by the instrument creating the power. See the Property and Trustees' Belief Amendment Act (22 & 23 Vict. c. 35), s. 12, which enacts that " a deed hereafter executed in the presence of, and attested by, two or more witnesses in the manner in which deeds are ordinarily executed and attested, shall, so far as respects the execution and at- testation thereof, be a valid execution of a power of apj)ointmentby deed or by any instrument in writing not testamentary, notwithstand- ing it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or at- tested with some additional or other form of execution, or attesta- tion, or solemnity : provided always, that this provision shall not operate to defeat any direction in the instrument creating the power, that the consent of* any particular person shall be necessary to a valid execution, or that any act shall be performed in order to give validity to any appointment having no relation to the mode of ex- ecuting and attesting the instrument, and nothing herein contained shall prevent the donee of a power from executing it conformably to the power by writing or otherwise than by an instrument executed and attested as an ordinary deed, and to any such execution of a • power this provision shall not extend." [^Docfrine of the Defective Execution ofaPoicer Aided Restated. — The jurisdiction which equity has assumed to aid the defective exe- cution of powers is based upon the theory that, the donee of the power had intended to exercise it, but has been prevented from do- ing so by some accident or mistake : Barr v. Hotch, 3 Ohio, 527. Equity will not allow the intention to be defeated for the sake of a mere form, but if no power has been exercised no intention to exer- cise it can or will be presumed. The powers to which equity will lend her aid are those created 347 292 ELLISON V. ELLISON. by way of use as distinguished from bare authorities conferred by law. The jurisdiction of courts of equity to supply surrenders of copyholders is no longer of inaportance.] [ * 291 ] * ELLISON ^. ELLISON. Feh. 2Wi, 1802. [reported 6 VES. 656.] Voluntary Trusts.] — Distinction as to volunteers. The assistance of the Court cannot he had ivithout consideration, to constitide a party cestui que trust, as upon a voluntary covenant to transfer stock, &c. ; but if the legal conveyance is actually made, constitid- ing the relation of trustee and cestui que trust, as if the stock is actually transferred, &c., though without consideration, the equit- able interest will he enforced. Settlement of leasehold estates not revoked by a subsequent as- signment by the trustee to the settlor entitled for life, or by the will of the latter: no intention to revoke appearing; and the terms of a power of revocation not being complied with. By indenture, dated the first of July, 1791, reciting a lease, dated the 6th of June preceding, of collieries at Hebburn and Jarrow- wood, in the county of Durham, for thirty-one years, to Charles Wren and others; and that the name of Wren was used in trust for Nathaniel Ellison and Wren, in equal shares; it was declared, that Wren, his executors and administrators, would stand possessed of the lease, in trust, as to one moiety, for Ellison, his executors, &c.' By another indenture, dated the 18th of June, 1796, reciting, that Ellison was interested in and entitled to one undivided eighth part of certain collieries at Hebburn and Jarrow, held by two separate leases for terms of thirty-one years, and that he was desirous of set- tling his interest, he assigned and transferred all his interest in the said collieries, and all the stock, &c., to Wren, his exe- [ * 292 ] cutors, * administrators, and assigns, in trust for Nath- aniel Ellison and his assigns during his life; and, after 348 ELLISOX V. ELLISON. * 293 his decease, in triiHt to manage and carry on the same, in like man- ner as Wren should carry on his own share; and upon further trust, out of the profits, to pay to Margaret Clavering, during the remainder of the term, in case she should so long live, the yearly sum of 108Z. 2s. 8d., which sum is thereby mentioned to be secured to her by an indenture, dated ' the 14th of May last; and, subject thereto, in trust to pay thereout to Jane Ellison, in case she should survive Nathaniel Ellison, during the remainder of the term, dur- ing the joint lives of Jane Ellison and Anne Furye, the clear yearly sum of 180?. ; and after the decease of Anne Furye, then the yearly sum of 90Z. ; during the remainder of the term, incase Jane Ellison should so long live; and, subject as aforesaid, upon trust to pay thereout, to each of the children of Nathaniel Ellison that should be living at his decease, during the remainder of the term, during the joint lives of Jane Ellison and Anne Furye, and the life of the survivor, the yearly sum of 30?. apiece; and after the decease of the survivor the yearly sum of 15Z. ; and upon further trust to pay the residue of the profits arising from the collieries to the eldest son of Nathaniel Ellison, who should attain the age of twenty-one; and upon the death of Margaret Clavering, then upon trust to pay to each of the children of Nathaniel Ellison the further yearly sum of 10?. ; with survivorship, in case any of the children should die be- fore twenty-one, or marriage of daughters, provided none except the eldest should bo entitled to a greater annuity than 50?. ; and upon further trust to pay the residue to the eldest son; provided further, in case all the chidren die before twenty-one, or the marriage of daughters, upon trust to pay the whole to such only child at twenty- one, or marriage of a daughter, provided further, in case the profits to arise from the collieries should not be sufficient to pay all the annuities, the annuitants, except Margaret Clavering, should abate, to be made up whenever the profits should be sufficient ; * and upon further trust, in case Wren, his executors or [ * 293 ] administrators, should think it more beneficial for the family to sell and dispose of the collieries, upon trust to sell and dispose of the same for the most money that could reasonably be got, and to apply the money, in the first place, in payment of all debts due from the collieries, in respect of the share of Ellison; and, subject thereto, to place out the residue on real securities, and apply the interest, in the first place, in payment of the annuity of lOBl. 28. 8d. to Margaret Clavering; then to the annuities of 180?. 349 * 294 ELLISON V. ELLISON. or 90Z. ; then to pay all the children of Ellison, during the life of Margaret Clavering, the yearly sum of 221. 10s., and to pay the residue of the dividends and interest to the eldest son of Ellison, in manner aforesaid; and if the dividends, &c., should not be sufficient for the annuities, the two annuitants, except Mai'garet Clavering, to abate; and, after her death, to pay to each of the children of Nath- aniel Ellison the further yearly sum of 21. 10s. for their lives; and, after the decease of Margaret Clavering and Jane Ellison, upon trust to pay to each of the children of Nathaniel Ellison the sum of 500Z., in case the money arising from the sale should be sufficient; then upon trust to divide the same equally among all the children, share and share alike; and, subject as aforesaid, to pay over the residue to the eldest son on his attaining twenty-one; and it was declared, that the portions of the children should be paid to the sons at twenty-one, to the daughters at twenty- one or marriage; and in case of the death of any before such period, to pay that share to the eldest son at twenty-one; and if only one child should survive, to pay the whole to such one at twenty -one or marriage, if a daughter; and incase all die before twenty -one, &c., then the said Charles Wren, his executors and administrators, shall stand pos- sessed of the said collieries, and the money to arise by sale thereof, subject as aforesaid, in trust for Nathaniel Ellison, his executors, administrators, and assigns. It was further declared, that the annuities should be paid half-yearly; and that, upon any [ *294] such sale, the receipt of Wren, his * executors or admin- istrator^, should be a sufficient discharge to purchasers. Then followed this proviso: — " Provided always and it is hereby fur- ther declared, that it shall and may be lawful for the said Nath- aniel Ellison, by any deed or deeds, writing or writings, to be by him signed, sealed, and delivered in the presence of and attested by two or more credible witnesses, to revoke, determine, and make void all and every the uses, trusts, limitations and powers hereinbefore limited and created, of and concerning the said collieries and coal mines; and by the same deed or deeds, or by any other deed to bo by him executed in like manner, to limit any new or other uses of the said collieries and coal mines, as he, the said Nathaniel Ellison shall think fit." By another indenture, dated the 3rd of July, 1797, but not attested by two witnesses reciting the leases of the collieries, and that the name of Charles Wren was used in trust for Nathaniel Ellison and 350 ELLISON V. ELLISON. * 295 himself, in equal shareH, and that Ellison had advanced an equal share of the monies supplied for caiTying on the collir-ries, amount- ing to 9037Z. 10s , it was witnessed, that, in consideration of 4518^. 15s., "Wren assigned to Nathaniel Ellison one undivided moiety or half ])art of all the said collieries, demised to liim by the said several leases, with a like share of the stock; to have and to hold the said collieries to Ellison, his executors, administrators and assigns, for the residue of the said terms, subject to the rents, covenants, and agreements in the said leases; and to have and to hold the stock unto Ellison, his executors, administrators, and assigns, to and for his and their own proper use for ever, with the usual covenants from Wren as to his title to assign, &c., and from Ellison to indemnify Wren, his executors, &c. Nathaniel Ellison, by his will, dated the 22nd June, 1796, after several specific and pecuniary legacies, gave all the rest and residue of his personal estate and effects, of what nature or kind soever, not before disposed of, to his wife, and Wren, and the survivor, and the executors and administrators of such survivor, upon trust to call in * and place the same out in the funds, or on real ["* 295] securities; and he directed that all sums of money which should come to the hands of his wife and AVren, or of the executors, &c., of either of them, under the said trusts, should be equally divided between all his children, sons and daughters, born and to be born, share and share alike; the shares to become vested and be payable upon marriage; with consent of their guardians, and not otherwise, until the age of twenty-one; such part of the interest in the mean- time, as the guardians shall think proper, to be applied for main- tenance; the residue to accumulate; with a direction for payment of part of the principal for advancement, and survivorship upon the death of any before the respective shares should be payable; and, in case of the death of all under age and unmarried, he gave the divi- dends and interest for his wife for life; and, upon her death, he gave the principal and a sum of 3000/., charged upon her estates, to his sister, Margaret Clavering, and his nephew. Then, after some far- ther dispositions of stock in favour of his children, he gave a legacy of twenty guineas to Wren, and appointed his wife and Wren exec- utors and guardians. The testator died in 1798, leaving his widow and ten children surviving; one of whom, Charles Ellison, died in 1799, an infant Wren also died in that year. 351 * 296 ELLISON V. ELLISON. The bill was filed by the testator's widow and Margaret Claver- ing, praying, that the trusts of the deed of June, 1796, may be es- tablished, and that new trustees may be appointed. The younger children, by their answer, submitted whether the trusts of that deed were not varied or revoked by the deed of July, 1797. Mr. Romilly and Mr. Bell, for the plaintifPs, insisted, that the subsequent deed, not reciting or taking any notice of the prior settlement, could not revoke it; that it was not the object of the latter deed to revoke the former; and that it was not attested by two wit- nesses, as, in order to effect a revocation, it ought to be. [ * 296 ] * Mr. Richards, for the eldest son, defendant, claiming also under the deed of 1796, declined to argue the case. Mr. Steele and Mr. W. Agar, for the other defendants, the younger children. — Though the expression in the clause of revoca- tion is " deed or writing," a will with two witnesses would do, ac- cording to the case (a) from Ireland, cited in Lord Darlington v. Pulteney (b). No intention, however, can be found in the will to revoke this settlement; but the subsequent deed is an implied revo- cation. What use could there be in that deed but to give Ellison the absolute estate, which is quite inconsistent with the trusts of the former deed, which are very special, and give a large discretion ? An instrument may be revoked by another, though not taking notice of the former, but only making a disposition inconsistent with it: Lord Fauconberge v. Fitzgerald (c), Arnold v. Arnold (d). And though the latter of these cases was upon a will, there is no difiFer- ence upon a voluntary settlement. There is no instance in which a voluntary deed, defective, and not effectual at law, has been aided in this court; and though this is, in some respects, in favour of a wife and children, one of the parties claiming under it is a volun- teer; and it is opposed by nine out of ten children. This deed, like that in Colman v. Sarrel (e), cannot be proceeded upon at law. But if the trust was originally well created, yet if the subject gets back, and is vested in the author of the trust, the objection lies. Mr. Romilly, in reply. — Can it be stated as a question here, (a) Roscommon v. Fowke, G Bro. P. C, Toml. ed. 158. lb) Cowp. 268. (c) 6 Bro. P. C. 295, Toml. ed. U) 1 Bro. C. C. 401. (e) 1 Yes. Jun. 50; S. C. 3 Bro. C. C. 12. 352 ELLISON V ELLISON. * 20? whether a settlement for a Avife Hiid children can be enforced against the representative of the father or the husband ? Colman v. Sar- rel has not the most remote application; the parties claiming under the deed being mere strangers, except by a connection illegal and immoral. It is not necessary to consider the case of a mere volun- teer. Mrs. Clavering was a creditor by an annuity secured by a prior deed. Supposing Ellison had an intention to revoke this set- tlement, he had prescribed to himself certain forms, the attestation of two witnesses. There is no instance of an implied re- vocation of trusts, * which are only to be revoked expressly, [ * 297 ] by a particular certain form. But there is not the least pretence upon these instruments, either the deed or the will, of any such intention. The will was executed only four days after the settlement, which is not noticed in either instrument. It is no more than consenting that the trustee, having the legal interest, shall as- sign to another person, and taking it himself. Notwithstanding the length the Court has gone upon wills (e), this would not be a revocation even of a will, merely taking the legal interest, having disposed of the equitable. The intention that these trusts should not prevail would have been expressly declared. As far as Wren was a trustee, the deed is revoked; but it was the act of AVren, Elli- son being passive. Lord Chancellor Eldon. — I had no doubt, that, from the moment of executing the first deed, supposing it not to have been for a wife and children, but for pure volunteers, those volunteers might have filed a bill in equity, on the ground of their interest in that instru- ment, making the trustees and the author of the deed parties. I fake the distinction to be, that, if you tvant the assistance of the Court to constitute you cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you 'Cestui que trust: as, upon a covenant, to transfer stock, <&c., if it rests in covenant, and is purely voluntary, this Court ivill not exe- cute that voluntary covenant. But if the party has completely transferred stock, &c., though it is voluntary, yet the legal convey- ance being effectually made, the equitable interest will be enforced by this Court. That distinction was clearly taken in Colman v. Sarrel (/), independent of the vicious consideration. I stated the (e) See Harmood r. Oglander, 6 Ves. 199. and note. ^f) 1 Ves. jun. 50; S. C. 3 Bro. C. C. 12. 23 WHITE ON EQUITY. 353 * 298 ELLISON V. ELLISON. objection, that the deed was voluncary ; and the Lord Chancellor (c^) went to me so far as to consider it a good objection to executing what remained in covenant. But if the actual transfer is made, that constitutes the relation between trustees and cestui que trust, though voluntary, and withcfut good or meritorious (h) considera- tion; and it is clear, in that case, that, if the stock had been [ * 298 ] * actually transferred, unless the transaction was affected by the turpitude of the consideration, the Court would have executed it against the trustee and the author of the trust. In this case, therefore, the person claiming under the settlement might maintain a suit, notwithstanding any objection made to it as being voluntary, if that could apply to the.jcase of a wife and chil- dren; considering, also, that Mrs. Clavering was an annuitant, and not a mere volunteer. But it was put for the defendants thus — that though the instrument would have been executed originally, if the subject got back by accident into the author of the trust, and was vested in him, then the objection would lie in the same manner as if the instrument was voluntary. I doubt that, for many rea- sons — the trust being once well created, and whether it would ap- ply at all where the trust was originally well created, and did not rest merely in engagement to create it. Suppose "Wren had died, and had made Ellison his executor, it would be extraordinary to hold, that though an execution would be decreed against him as executor, yet, happening to be also author of the trust, therefore an end was to be put to the interest of the cestui que trust. But it does not rest there; for Ellison clothes the legal estate remaining in Wren with the equitable interests declared by the first deed, making him, therefore, a trustee for Ellison himself fi.rst, and, after his death, for several other persons; and he has said, he puts that restraint upon his only power, not only that he shall not have a power of revocation whenever he changes his intention, but that he shall not execute that power, nor be supposed to have that change of intention, unless manifested by au instrument executed with cer- tain given ceremonies. My opinion is, that if there is nothing more in this transaction than taking out of Wren the estate clothed with a trust for others with present interests, though future in en- joyment, and that was done by an instrument with no witness, or ig) Thurlow. {h) That meritorious consideration merely will not entitle a volunteer to the aid of equity, see Jefferevs v. Jeffereys, 1 Cr. & Ph. 1:]8; Dillon v. Copin, 4 My. & Cr. 647, overruling Ellis v. Nimmo, L. & G. 333, t. Sugd. 354 ELLISON V. ELLISON. * oOO only ono witness, it is hardly possible to contend that such an instrument would be a revocation * according to [ * 299 ] the intention of the party, the evidence of whoHO intention is made subject to restrictions that are not complied with. The only difficulty is, that the declaration of the trusts in the first in- strument could not be executed, the second instrument being al- lowed to have effect. It is said, a power was placed in AVren, his executors and administrators, not his assigns, if in sound discretion thought tit, to sell and to give a larger interest to the younger children than they otherwise would take. If Wren had not, after the re-assignment, that discretion still vested in him, I think it would not be in the executors of Ellison, and it could not bo exercised by the Court, though; in general cases, trusts tvill not fail hij the failure of the trustee. But, though the effect would be' to destroy the power of Wren, which I strongly doubt, attending to the requsitiou of two witnesses, I do not know that it would destroy the other interests. I think, therefore, upon the whole, this trust does remain, notwith- standing this re- assignment of the legal estate to Ellison. I do not think, consistently with the intention expressed in the first instru- ment, and the necessity imposed upon himself of declaring a dif- ferent intention under certain restrictions, that, if a different in- tention appeared clearly upon the face of the instrument, the latter would have controlled the former. But I do not think his acts do manifest a different intention. Supposing one witness sufficient, the second deed does not sufficiently manifest an intention to re- voke all the benefits given by the first deed to the children; and it is not inconsistent that he might intend to revoke some, and not all. As to the will, it is impossible to maintain that the will is a writ- ing within the meaning of the power, considering how the subject is described. The word " residue " there means that estate of vrhich he had the power of disposing, not engaged by contracts, declara- tions of trusts, &c. It was necessary for him to describe the sub- ject in such a way that there could be no doubt he meant to embrace that property. Upon the whole, therefore, this relief * must be granted; though I agree, that, if it rested in cov- [ * 800] enant, the personal representative might have jiut them to their legal remedies, he cannot, where the character of trust attached upon the estate while in Wren; which character of trust, therefore, should adhere to the estate in Ellison, unless a contrary intention was declared; and the circumstance of one witness only, when the 355 * 301 ELLISON V. ELLISON. power reserved required two witnesses, is also a circumstance of evi- dence that he had not the intention of destroying those trusts which had attached, and were then vested in the person of Wren. The ordering part of the decree, extracted from the Registrar's Book, is thus {i): " Whereupon, and upon debate of the matter, and hearing the deed of trust dated the 18th June, 1796, read, and what was alleged by the counsel on both sides, his lordship doth declare that the trust of the said deed, bearing date 18th June, 1790, ought to be performed and carried into execution, and doth order and de- cree the same accordingly. And it is further ordered and decreed, that it be referred to Mr. Ord, one of the Masters of this Court, to appoint a new trustee or trustees of the premises comprised in the said trust deed, and that the share of the said Nathaniel Ellison of and in the said collieries, and the stock and efPects belonging thereto comprised in the said deed, be assigned to such new trustee or trus- tees so to be appointed, upon the trusts and upon and for the intents and purposes declared by the said deed concerning the same, and such new trustee or trustees is or are to declare the trust thereof accordingly, and the said Master is to settle such assignment; and it is ordered that the said Master do tax all parties their costs in this suit, and that such costs, when taxed, be paid out of the estate of the said testator, and any of the parties are to be at liberty to apply to this Court as there shall be occasion." In the leading case of Ellison v. Ellison, Lord Eldon lays down and acts upon the well-known rule, that where a trust is [ * 301 ] actually created, * and the relation of trustee and cestui que trust established, a Court of equity will, in favour of a vol- unteer, enforce the execution of the trust against the person creat- ing the trust, and all subsequent volunteers; although it will not create a trust or establish the relationship of trustee and cestui que trust, by enforcing the performance of an agreement, or by giving efPect to an imperfect conveyance or assignment in favour of volun- teers. The application however, of this rule, is by no means free from difificulty, as it is frequently a question of much nicety to deter- mine whether the relation of trustee and cestui que trust has or not been established. It is intended, therefore, in this note to examine the cases in which equity interposes or refuses its aid in favour of volunteers, and also to show how far voluntary deeds are void as against purchasers or creditors. (i) Taken from the judgment of Lord Justice Knight Bruce in Kekewich v. Manning, 1 Do G. Mac. & G. 191. 356 P:LL1S0N v. ELLISON. * 302 Complete trust on actual transfer of legal interest.^ — Where there has been an actual bona fide transfer of the legal interest in real or personal properly by the settlor or his trustees to trustees upon trusts declared in favour of volunteers, these trusts, it is clear, will be en-. forced in e(piity against the settlor or his representatives or subse- quent volunteers. Thus, for instance, if there be a conveyance' or assignment of land passing the legal estate, as is laid down in the principal case {ante, p. 298, and see Woodford v. Charnley, 28 Beav 96), or of chattels passing by deed without delivery (Siggers v. Ecans, 5 Ell. & Bl 367); or a delivery of chattels {Farington v. Parker, 4 L. R. Eq. 116), or of securities transferable by delivery (M'Culloch V. Bland, 2 Giff. 428 ) or of cheques, if accepted as gifts (Bromley v. Brunton, 6 L. R. Eq. 275), and not as loans (Hill v. Wilson, 8 L. R. Ch. App. 888); or, if in the case of chattels passing by delivery, there has been conduct on the part of the parties to the transaction showing that the ownership in the chattels has been changed, and therefore equivalent to a delivery {Flory v. Denny, 7 Exch. 583; Ward v. Audland, 16 M. & W. 862; Winter v. Winter, 9 W. R. (Q. B. ) 747, l)ut see Irons v. Smallpiece, 2 B & Aid. 551 : and Shoicer v. Pilck, 4 Ex. 478, In re Ridgway, Ex parte Ridgway, 152 B. D. 447, according to which, in the absence of an assignment, actual delivery of chattels was held necessary to pass the property therein), or there has been a complete transfer of stock, as laid down in the principal case {ante, p. 297:) in all these cases, though the conveyance, assignment, delivery or transfer be voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced by the Court. [If the conveyance is voluntary, the court will not erecute it, but if the transfer has been complete, even if it was voluntary, the equitable interest will be enforced by the court of chancery: Adams v. Adams, 21 "Wallace, 185; Clark t\ Lott, 11 111. 105; Stone v. Hackett, 12 Gray, 227; Vreeland v. Van Horn, 2 C. E. Green, 139; Souverbye r. Ardeu, 1 Johns. Ch. 240; Crompton t\ Nassar, 19 Ala. 266; Stone v. King, 7 R. I. 358; Carhart's Aftpeal, 28 P. F. Smith, 119; Dollinder's Appeal, 21 P. F. Smith, 425.] See also Colman v. Sarrel, 3 Bro. C. C. 12, 14; S. C, 1 Ves. jun. 50; Pulvertoft v. Pulvertoft, * 18 Ves. 84, 99; Bill v. [ * 302 ] 'Curefon, 2 My. & K. 503; Jefferys v. Jefferys, Cr. & Ph. 138, 141; Deniriq v. Ware, 22 Beav. 184; Mugqeridge v. Stanton, 7 W. R. (V.-C. K.) 638; Dilrow v. Bone, 3 Giff. 538. And the Court will do this even although, as in the principal case, the trust property by accident gets back into the hands of the donor {Sniifh v. Lyne, 2 Y. & C. C. C. 345; Broicne v. Carendish, 1 J. & L. 637; Nejcton v. Askew, 11 Beav. 145; Page v. Home, 11 Beav. 227; Lanham v. Pirie, 2 Jur. N. S. 753, 3 Jiir. N. S. 704 ; Gilbert v. Overton, 2 H. & M. 117); [A deed under a voluntary settlement if executed in due form will be binding on the settlor though he retains possession of it: Bunn v. Wmthrop, 1 Johns. Ch. 329; Urann v. Coates, 109 Mass. 581. If the trust has been 357 * 303 ELLISON V. ELLISON. perfectly created, it matters not if the deed is lost or revoked or the property revested; Meiggs v. Meiggs, 15 Hun. 458; Ritter's Appeal, 59 Pa. St. 9; Sewell v. Roberts, 115 Mass. 272; Aylsworth V. Whitcomb, 12 R. I. 298. As to revocation, see Isham v. Dela- ware R. R. Co., 3 Stock, 229.] to whom if it were transferred by the trustees they would commit a breach of trust: JWDonnell v. HesilHge, 16 Beav. U6. Nor is it essential to the creation of a trust in favour of volunteers that the trustees should accept the trust ( Tierney v. Wood, 19 Beav. 330; Donahue v. Conrahy, 2 Jo. L. 689; Kronheim v. Johnson, 7 Ch. D. 60), and if trustees to whom the legal interest has been transferred disclaim, the Court, which, in accordance with the well- known maxim, never allows a trust to fail for want of a trustee^ will appoint new trustees in their places: Jones v. Jones, AV. N. 18 < 4, p. 190. Where there is a clear intention on the part of the donor of mak- ing a gift, a legal transfer of the subject matter of the gift to the donee will be valid, although it was not knowingly made to him for the purpose of carrying out the gift. See Strong v. Bird, 18 L. R. Eq. 315, where Sir G. Jessel made the following observations: — "It is not necessary that the legal change shall knowingly be made by the donee with a view to carry out the gift. It may be made for another purpose; but if the gift is clear, and there is to be no re- call of the gift, and no intention to recall it so that the person who executes the legal instrument does not intend to invest the person taking upon himself the legal ownership with any other character, there is no reason why the legal instrument should not have its legal effect. For instance, suppose this occurred, that a person made a memorandum on the title deeds of an estate to this effect: 'I give Blackacre to A. B.,' and afterwards conveyed that estate to A. B. by a general description, not intending in any way to change the pre- vious gift, would there be any equity to make the person who had so obtained the legal estate a trustee for the donor ? The answer would be, that there is no resulting trust; that is rebutted by showing that the person who conveyed did not intend the person taking the conveyance to be a trustee; and although the person con- veying actually thought that that was not one of the estates con- veyed, because that person thought that he had well given [ * 303] the estate before, * still the estate would pass at law, not- withstanding that idea, and there being no intention to revoke the gift, surely it would get rid of any resulting trust. On the same principle, where a testator makes his debtor executor, and thereby releases the debt at law, he is no longer liable at law. It is said that he would be liable in this Court; and so he would unless he could show some reason for not being made liable." AVhere, however, although there has been an intended transfer to trustees, the trusts have not been finally determine upon by the 358 ELLISON V. ELLISON. * 303 settlor, be has a locus poenitentice, and may call for a re-transfer: Be Sykes' Trusts, 2 J. & H. 415. Exceptions in the case of Deeds for payment of creditors — in what cases. J — Where a legal transfer of property has been made to trus- tees, for payment of the debts of the owner ivithout the kmncledge or concurrence of his creditors, such a transaction, it has been re- peatedly held, does not invest creditors with the character of cestuis que trust, but amounts merely to a direction to the trustees as to the method in which they are to apply the jjroporty vested in them for the beneiit of the owner of the property, who alone stands towards them in the relation of cestui que trust, and can vary or revoke the trusts at pleasure, as for instance by a second conveyance executed by several creditors not privy to the first [Acton v. Wood- gate, 2 My. & K. 495); especially when the payment of the debts is only to be made on the request of the settlor {Evans v. Bagwell, 2 Con. & L. 612); but such revocation can only take place without prejudice to anything which the trustees have done in the proper performance of their duties: Wilding v. Richards, 1 Coll. 055,659; Kirican v. Daniel, 5 Hare, 493. [Voluntary assignments to trustees for the benefit of cz-editors constitute an exception to the general rules by which the creation of voluntary trusts is governed, because after such an assignment, but before it has been communicated to the creditors, it is revocable at the option of the grantor. This doctrine which was laid down in "Walwyn v. Coutts, 3 Mer. 707; and which has been extensively followed in England, is that the assignee for the benefit of creditors is not strictly a trustee but merely an agent of the debtor. This doctrine has not, however, been approved in America because the assent of the creditor is presumed to bo given to a trust created for his benefit and after such assent the trust is ii-revocable by the grantor: England v. Rey- nolds, 38 Ala. 370; Read v. Robinson, 6 AV. & S. 329; Pingree v. Comstock, 18 Pick. 46; Shepherd r. McEvers, 4 Johns. Ch. 136; Weir V. Tannehill, 2 Yerg. 57. But the presumption of the cred- itor's assent may be rebutted by conduct: Gibson v. Rees, 50 111. 383.] Courts of equity, therefore, will not, at the instance of the cred- itors, who are looked upon as mere strangers, compel the trustees to execute the trusts for payment of debts. Thus, in Walnyn v. Coutts, 3 Mer. 707, S. C, 3 Sim. 14, where estates are conveyed to trustees upon trust for the payment of the debts of certain scheduled creditors, who were neither part ies nor privies to the deed. Lord Eldon held, that the trust was voluntary, and that it coul.l not be enforced against the owners of the estates, who might vary it as they pleased. See, also, in Garrard x. Lord Lauderdale, ?^ Sim. 1, 2 Russ. & My. 451. In Page v. Broom, 4 Russ. 0, a debtor had by deed poll directed the receiver of his estate to pay the in- terest of a particular debt: it was held by Sir J. Leach, M. R., that, 359 * 305 ELLISON V. ELLISON. as the deed was executed without consideration, and without the privity of the creditor, no trust was created in his favour [ * 304 ] This case was affirmed * on appeal by Lord BrougUvian. See 2 Russ. & My. 214; and the observation of Pepys, M. R., in Bill v. Ciireton, 2 My. & K. 511. See -dlso Ravenshaiv v. Hoi- lier, 7 Sim. 3; Wilding v. Richards, 1 Coll. G55; Law v. Bagivell, 4 D. & W. 398; Broivne v. Cavendish, 1 J. & L. 635; Smith v. Hurst, 10 Hare, 30; Steele v. Murphy, 3 'Moore, P. C. C. 445; Smith v. Keating, 6 C. B. 136, 158; Thatjer v. Lister, 9 W. R. (V.-C. W.) 360; Henriques v. Bensusan, 20 W. R, (V.-C. M. ) 350; Johns v. James, 8 Ch. D. 744. Where parties interested in a fund, by an arrangement between themselves, without any communication with a third party, trans- fer it by deed to trustees upon trust to pay the costs of the third party and divide the residue among themselves, the third party as the deed was revocable by the parties executing it, cannot in his own favour compel an execution of the trusts thereof. Thus in Gibbs V. Glamis, 11 Sim. 584, a suit was instituted by A. against B. & C. respecting a sum of 4000Z. D. was also made a party to the suit; but, having no interest, he disclaimed. A., B., and C. after- wards came to a compromise; in pursuance of which they executed a deed, assigning the 4()00Z. to trustees, in trust to pay D. his costs of the suit, and to divide the rest of the fund amongst A., B., & C. D., though he was not a party either to the compromise or to the deed, filed a bill against A., B., and C, and the trustees, to compel a performance of the trusts and payment of his costs. Lord Cot- tenham, reversing the decision of Sir L. Shadicell,Y.-C., allowed the demurrer of C. for want of equity, observing, " that the ques- tion Avas, whether the provision for payment of costs gave the party whose costs were so provided for a right to institute a suit as cestui que trust, he having no interest in the fund, not having been a party to the arrangement, and the arrangement having been made between the parties interested in the fund, for their own benefit or convenience; that the present case was not distinguishable from Gaiirard v. Lord Lauderdale, and the other cases which had been cited, in each of which the plaintifP was as much a cestui que trust as the plaintifP in that case was. See also Simmonds v. Palles, 2 Jo. & L. 489; Synnot v. Simpsoji, 5 Ho. Lo. Ca. 121. Where, moreover, the Crown, by warrant "grants," as for instance, booty of war to an officer of state, even though it be "in trust" to distribute among certain persons found to be entitled thereto, such warrant will not operate as a transfer of pi'operty, or to create a trust cognisable in a Court of law, but will make such officer merely the agent of the Crown to distribute the fund, and from his decision there can be no appeal except to the Crown. [ * 305 ] * Kinlock v. Secretary of State for Lidia in Council, 15 Ch. D. 1. It is clear also, that, in other cases in which creditors are not con- 360 ELLISON V ELLISON. * 306 cerned, a person not intending to give or part with the dominion over his property, may retain snch dominion, notwithstanding he may have vested the pro])erty in trustees, and declared a trust upon it in favour of third persons. Thus, in Hughes v. Stubbs, 1 Hare, 47G, a testratrix drew a cheque on her bankers for !")()/. in favour of A., and she verbally directed A. to apply that sum, or so much of it as might be necessary, to make up to a legatee the difference in value between a legacy of 100?. which the testatrix, l)y her will, had given to the legatee, and the price of a lOOZ. share in a certain railway : the testatrix informing A. that she intended to give the share instead of the legacy, but she did not think it necessary to alter her will. The bankers gave credit to A. for the 1 50Z. The tes- tatrix afterwards died. In a suit for the administration of her es- tate, Sir J. Wigram, V.-C, held, that no trust was created for the benefit of the legatee in respect of the 150?. " The cases," observed his Honor, " on this subject are necessarily of difficulty ; but the conclusion to which I feel bound to come is, that the testatrix did not part with her property in the sum in question, or create any trust for the legatee." See also Gaskell v. Gaskell, 2 Y. & J. 502 ; Paterson \. Murphy, 11 Hare, 88; Smith v. Warde, 15 Sim. 56; and the remarks of IFood, V.-C, in Vandenberg v. Palmer, 4 K. & J. 214, 218; Field v. Lonsdale, 13 Beav. 78; Pedder v. Mosely, 31 Beav. 159; Daviesv. Otty, 33 Beav. 540. Where however a trust in favour of creditors has been communi- cated to the creditors — a fact, it seems, which must be clearly i:)roved (Cornthivaite v. Frith, 4 De G. & Sm. 552) — it can be no longer revoked by the settlor, because the creditors, being aware of such a trust, might be thereby induced to a forbearance in respect of their claims, which they would not otherwise have exercised (Ac- ton V. Woodgate, 2 Mv. & K. 495; Broume v. Cavendish, 1 J. & L. 635; 7 Ir. Eq. Rep. 388; Simmonds v. Palles, 2 J. & L. 504; Kir- tvan V. Daniel, 5 Hare, 499; Harland v. Binks, 15 Q. B. 713; Sig- gers v. Evans, 5 Ell. & Bl. 367), and a fortiori wiU this be the case Avhen the deed has been acted upon, Cosser v. Radford, 1 De G. Jo. & Sm. 585. And it is clear that where an assignment is made to a creditor in trust for himself and other creditors, it cannot be revoked by the assignor after it has been communicated to the assignee, unless he has done something to shew his dissent : Siggers v. Evans, 5 Ell. & B. 367, 380, 381; Laivrence v. Campbell, 7 AV. K. (V.-C. K.) 170; Hobson v. Thellnsson,*2 L. R. Q. B. 642; Johns [ * 306 ] V. James, 8 Ch. D. 751, 743. And where pi'operty had been conveyed upon trust ft)r jiayment of debts to a person who was surety for some of the debts, it was held, although the conveyance was a mere deed of agency, and not binding on the creditors, who were neither parties nor privies there- to, that the person to whom the property had been so conveyed was 361 *307 ELLISON V. KLL'SON. entitled to retain it, until be should be discharged from his liabil- ity as surety ; Wilding v. Richards, 1 Coll. 055. And it seems to be doubtful whether., after the trust has been communicated to some of the creditors, it can after satisfying them be revoked by the settlor as to the other creditors : Griffith v. Rick- etts, 7 Hare, 307; see also, Gurney v. Lord Oranmore,4: Ir. Ch. Bep. 470, ^. C, 5 Ir. Ch., Rep. 436. The execution, however, of a trust deed for (amongdt other things) the payment of creditors does not constitute one of the creditors, who becomes so after the execution of the deed, and was not a party to it, a cestui que trust, entitled to call on the trustee to execute the trusts of the deed : La Touche v. EarlofLucan, 7 C. & F. 772. Where a creditor is party to a deed whereby his debtor conveys property to a trustee to be applied in liquidation of the debt due to that creditor, the deed is, as to that creditor, irrevocable. A valid trust is created in his favour, and the relation between the debtor and trustee is no longer that of mere principal and agent (per Lord Cranworth, V.-C, in Mackinnon v. Stewart, 1 Sim. N. S. 88, and see Glegg v. Rees, 7 L. R. Ch. App. 71). And that which is true where a single creditor is the cestui que trust, is at least equally so where there are many creditors. lb. Nor does the creditor executing the deed become less a cestui que trust, because he gives nothing to the debtor, as a consideration for the trust created in his favour, or because it was the voluntary, un- solicited act of the debtor to create the trust : (per Lord Cramvorth, V.-C, in Mackinnon v. Steivart, 1 Sim. N. S. 88 ; see, also. Field v. Lord Donoughmore, 2 Dru. & Walsh, 630, 1 Dru. & War. 227; Gur- ney \. Lord Oranmore, 4 Ir. Ch. Rep. 473; 5 Ir. Ch. Rep. 436;) or because he was party to the deed in another right (Montefiore v. Browne, 7 Ho. Lo. Ca. 241, 266). And though there is a time limited in the deed within which creditors must execute it, if by accident any of them fail to do so, they will not necessarily, in equity at any rate, should the/ act under the deed (Sjjottiswoode v. Stockdale, Sir G. Coop. Rep. 102; Raworth v. Parker, 2 K. & J. 163), or upon the faith of it (Nichol- son V. Tutin, 2 K & J. 18), or acquiesce in it [In re Babers [ * 307 ] Trusts, 10 L. R. Eq. 554), be excliided from the ^- benefit of the trusts (Dunch v. Ke7it, 1 Vern. 260; Field v. Lord Donoughmore, 1 Dru. & War. 227; and see Lane y. Husband, 14 Sim. 661; Whitmore v. Turquand, 1 J. & H. 444; 3 De G. F. & Jo. 107; Biron v. Mount, 24 Beav. 642), though they might not be allowed to disturb any dividend already made amongst the cred- itors Broadbent v. Thornton, 4 De Gex & Sm. 65; Field v. CooA-. 23 Beav. 600); but the Court, before it permits a crediior, who has not executed, to take a benefit under a deed, is bound to see that he has performed all the fair conditions of such deed, and if he has taken any step inconsistent with its provisions, he will be deprived of all advantage therefrom (Field v. Lord Donoughmore, 1 Dru. & 362 ELLISON V. ELLISON. * 308 War. 227; Drever v. Maivdesley, 10 Sim. 511; Forbes v. Limond, 4 Do a. M. k G. 2U8). A creditor wl:o for a 1od(( tiino delays (Gould v. Robertson, 4 De G. & (Sm. 501)), or if bo refuses, to execute sncb deed within the time limited, and does not retract bis refusal witbin sucb time (Johnson v. Kershaw, 1 Do G. i 2)Timd facie be understood to be dealing with bis prop- erty as if be were disposing of it by will, and tberefore as contem- plating bounty throughout. Synnot v. Simpson, 5 H. L. Cas. 121, 139, 141. But see Montefiore v. Broione, 7 Ho. Lo. Ca. 241, 206; Burroires v. Gore, 6 Ho. Lo. Ca. 907. Upon the deatb of the debtor wbo bas for his own convenience execiited a deed of mere agency for tbe payment of bis creditors, and assuming that it bas not been communicated to or acted upon by tbo creditors so as to create a trust in their favour, it bas been ar- gued, but not it seems decided, that such deed, considered in tbe light of an authority given to an agent, is revoked by the death of *" tbo principal. See Wilding v. Richards, 1 [ * 308 ] Coll. 060. Wbetber this is so or not, the trustees, it seems, even in the absence of any ultimate limitation in favour of the settlor, would bold tbe property in trust for bis legal or personal representatives, wbo would take by way of resulting tnist whatever remained in their hands undisposed of in favour of the creditors. It is moreover clear that tbe credit-u' under a deed of sucb a nature does not l)y the deatb of the settlor, acquire arty right to en- force a trust in his own favour w^iicb he bad not during the life of the settlor: Garrard v. Lord Lauderdale, 3 Sim. 1; Synnot \. Simp- son, 5 Ho. Lo. Ca. 139. Where a debtor assigns property for the benefit of bis creditors, altbougb no creditor may be aAvaro of tbe assignment, tbe assignee may, novertbeless, take proceedings in equity to recover tbe prop- 363 * 309 ELLISON V. ELLISON. erty: GUgg v. Rees, 1 L. R. Ch. App. 70). [An assignee for the benefit of creditors may sue to recover property conveyed away by his assignor in fraud of creditors, if such property is required to satisfy the assignor's debts. But if the evidence shows that the as- signor used the property to payoff a debt justly due by him, no ac- tion will lie to recover it back: Pillsbury v. Kingon, 33 N. J. Eq. 287; Sweetserv. Camp (Mich.), 29 N. W. Eep. 511, and note; Fos- ter V. Knowles (N. J.), 7 Atl. Rep. 295 and note.] It may be here mentioned that in bankruptcy a conveyance or transfer' of property voluntarily made in trust for creditors will amount to a fraudulent preference, (see note to Harman v. Fishar, L. C. Merc. Law, 773, 3M ed): and if the whole of the debtor's property be included in the deed to secure creditors for pre-existing debts, it will amount to an act of bankruptcy (lb. p. 804; and see Siyencer v. Slater, 4 Q. B. D. 13; Ex parte Trevor, 1 Ch. D. 297; Ex parte Stevens, 20 L. R. Eq. 780). With regard to the question whether a creditor taking out exe- cution can levy his debt upon property included in a mere agency deed in favour of creditors such as that which formed the subject of litigation in Wahcyn v. Coutts, 3 Mer. 707, 3 Sim. 14, it seems to have been held at law that he could not do so (Pickstock v. Lyster, 3 M. & S. 371; EsUvick v. Caillaud, 5 T. R. 420; see vide Owen V. Body, 5 Ad. & Ell. 28), but that in equity such a deed ought to be held invalid as against him {Mackinnon v. Stewart, 1 Sim. N. S. 90, 91; Smith \. Hurst, 1 Coll. 705). Trust deeds for the benefit of creditors, in default of registration, either under the 192nd or 194th sections of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134, repealed by 32 & 33 Vict. c. 83, s. 20, except as to its past operation), cannot be received in evidence. Complete trust by declaration without legal transfer.] — Although there may have been no actual transfer of the legal interest in prop- erty to trustees, if the settlor has constituted himself a trustee for volunteers, a Court of equity will enforce the trusts. This is w^ell illustrated in Exx)arie Pye, Ex j^arteDubost, 18 Ves. 140, 145; Post vol. 2. [The common law rules in reference to the transfer of legal titles has beon followed in equity as to the creation of equitable es- tates, and trusts which are purely voluntary, must, in order to be effectually created, be accompanied by the the delivery of the sub- ject of the trust or by some act so strongly indicative of the donor's intention as to be tantamount to such delivery: Trough's Estate, 25 P. F. Smith, 115; Cox v. Sprigg, 6 Md. 274; Otis v. Beckwith, 49 111. 121; Taylor v. Staples, 8 R. I. 170.] In that case M. [*309] had Ijy letter, directed an agent* in Paris to purchase an annuity for a lady, which was accordingly purchased, but in the name of M., the lady being at that time married, and also deranged. M. afterwards sent to his agent a power of attorney au- thorising him to transfer the annuity into the lady's name, but died 364 ELLISON V. KLLISON. * 309 before the trauHfer was made. Lord Eldon bold, that although the legal interest remained in M., he had constituted himself a trustee for the lady. " The question," says his lordship, " involves the point, whether the power of attorney amounts here to a declaration of trust? It is clear that this Court will not assist a volunteer; yet, if the act is comph^ed, though voluntary, the Court will act upon it. It has been decided, tliai, upon an agreement to Irannfer stock, this Court will not interpose; but, if the 2)arty had declared himself to he the trustee of that stock, it becomes the 2>roperty of the cestui que trust u-ithout more, and the Court will act upon it. Upon the documents Ijefore me, it does appear, that, though in one sense this may be represented as the testator's personal estate, yet he has committed to writing what seems to me a sufficient declaration that he held this jiart of the estate in trust for the annuitant." And see and consider Airey v. Hall, 2 Sm. & G. 31 p; Parnell v. Hincjston, 3 Sm. &G. 337; and Kiddell\. Farnell, 3 Sm. & G. 428, appealed and compromised, 5 AV. K. (L.J.) 793. [When a person is pos- sessed of the legal title of the subject-matter, be may create a valid trust in any of the following ways: by declaration saying that be holds the property in trust; by a declaration saying that he holds the legal title in trust for another person, or by transferring the legal title to a third person for the benefit of the cestui que trust: Lloyd v. Brooks, 34 Md. 33.] In Wheafley v. Purr, 1 Kee, 551, H. O. di- rected her bankers to place 2()()0/. in the joint names of her,children, J. R. W., M. ^V., and H. W., and her own as trustee for her child- ren. That sum was accordingly entered in the books of the bank- ers to the account of H. O. as trustee for J. R. W., M. W., and H. W. The bankers gave H. O., as trustee for J. R. Vs., M. V\'., and H. W,, a promissory note for the amount, with interest at 24- per cent., and she gave the bankers a receipt for the promissory note. Lord Langdale, M. R.,wa3 of opinion that she had constituted her- self a trustee for the plaintiffs, her children, and that a trust was completely declared, so as to give them a title to relief. See, also, Vandenburg v. Palmer, 4 K. & J. 204; Evans v. Jennings, G W. R. (V.-C. S.) GIO. A trust relating to lands must, under the 7th section of the Statute of Frauds, be manifested and proved by some writing: Foster v. Hall, 3 Ves. 696; Sviith v. Mattheivs. 3 De G. F. & J. 139; 9 W. R. (L.J.) 644. [The statute does not require trusts of realty to be created, but only manifested and proved by writing. Cbancellor Kent in Movan Hays, 1 Johns. Ch. 342, says, " There is a distinction between an agreement and a trust under the Statute of Frauds, and a trust need not, like an agreement bo constituted or created by writing." The distinction is of importance because a subsequent written acknowledgment of a trust will cause the interest to relate back to the date of its original creation, so as to bring it within the opera- tion of a will of the cestui que hmst executed before the written £65 * 310 ELLISOX V. ELLISON. acknowledgment but after tbe verbal creation: Soflford v. Eantoi;!, 12 Pick. 233; Sime v. Howard, 4 Nevada, 483; Barrell v. Joy, 10 ' Mass. 223. In Maine a trust must be " created and declared in writing." Gerry v. Stimson, 60 Me. 188. In' Vermont, Illinois and Massachusetts, " declarations or creations of trust must be manifested and proved in writing."] But a declaration by parol of the trusts of personal property will be sufficient to create a trust. [Personal chattels are not within the statute and may be proved by parol: Higgenbottom v. Peyton, 3 Rich. Eq. 398; Barkley u Lane, 6 Bush (Ky.), 587; Day u Rath, 18 N. Y. 447; Moffitt v. Rynd, 19 P. F. Smith, 380; Hooper v. Holmes, 3 Stock, Ch. 122; Kirkpatrick v. Davidson, 2 Kelly, 297.] Thus in M'Faddeu v. Jenkyns, 1 Ph. 153, A. had sent a verbal direction to B., who owed him 500Z., to hold the debt in trust for C, a volunteer; B. assented to and acted upon the direction, by paying C. [ * 310] 10/., as part of the trust money. Lord Lyndhurst, *affirm- ing the decision of Sir J. Wigram, Y.-C. (reported 1 Hare, 458), held, that a declarationhy X)CL'^'olti-as sufficient io creoie B.ix\x.^i of personal property, and that, as the debtor had assented to and acted upon the direction, a complete and irrevocable trust was im- pressed upon the money. And see Peckham v. Taylor, 31 Beav. 250; Middleton v. Pollock, 4 Ch. D. 49; Makeoivn v. Ardagh, 10 1. R. E. 445. Where, however, there is a declaration of trust by parol, if the case be one of doubt or difficulty upon the words which have been sup- posed to have been used, the Court will give weight to the considera- tion that the words, not being committed to writing in any definite and unquestionable form, may not be the deliberately expressed sen- timents of the party: Dipple v. Corles, 11 Hare, 183; and see Pater- son V. Mii7phy, lb. 91, 92. [An answer in Chancery admitting the trust, will not be sufficient to take it out of the statute if the defend- ant chooses to insist upon the benefit of tbe statute: "Whiting v. Gould, 2 Wis. 552; Dean v. Dean, 1 Stock. Ch. 425; Perry on Trusts, Sec. 85.] In the following cases it will be seen what will be considered, although not in terms, to be equivalent to a declaration of trust: Frampton v. Frampton, 4 Beav. 287 ; James v. Bydder, 4 Beav. 605 ; Thorpe v. Oiven, 5 Beav. 224; Stapleton v. Stapleto7i, 14 Sim. 186; Wilcocks V. Hannyngton, 5 Ir. Ch. Rep. 38; Donaldson v. Donald- son, Kay, 716, 717; Woodroffey. Johnston, 4: Ir. Ch. Rep. 319; Gray v. Chxiy, 2 Sim. N. S. 273: Ouseley v. Anstndher, 10 BeaA'. 461; Moore v. Darton, 4 Do G. & Sm. 517; Paterson v. Murphy, 11 Hare, 88; Lloyd \. Chiine, 2 Giff. 441; Steele v. Waller, 28 Beav. 466; Maguire v. Dodd, 9 Ir. Ch. Rep. 452; Arthur v. Clarkson, 35 Beav. 458; Gee v. Liddell, lb. 621; Miller v. Harrison, 5 Ir. Eq. 324; and see the remarks of Sir John Bomilly, M. R., in Price v. Price, 14 Beav. 602; In re Shield, Pethybridge v. Burrow, W. N., May 24, 1884, p. 1V7. S. a, reversed ^Y. N., 1885, April 25, p. 88. 366 ELLISON V. ELLISON. * 31 1 [Formalities are of minor importanc's since if the transaction can- not be effectual as a trust executed, it may be enforced as a contract: Lewin on Trusts, 154 (Text Book Series); Baldwin v. Humphries, 44 N. Y. 009; Taylor v. Pownall, 10 Leigh. 1S3.] The dicfuvi attributed to Lord Cran worth, C, in Scales v. Maude, De Gex, Mac. & G. 51. to the effect that a mere declaration of trust by the ownerof jn-operty in favour of a volunteer is inoperative, and that the Court of Chanccn-y will not interfere in such a case, is un- supported by the authorities, and was admitted by his Lordship in Jones V. Lock, 1 L. R. Ch. Ap. 28, to be "clearly wrong as a general statement of the law." The consent of a married woman, given before commissioners, for the transfer and payment to her husband of sums of stock and cash standing in Court to her separate account has been held not to amount to a declaration of trust, and that it was competent to her, at any time before the transfer had been completed, to retract her consent: Pen- fold V. Mould, 4 L. R. Eq. 502. A mere expression of an intention to divide property with, or to leave it to, others will not, it seems, be held to amount to a * declaration of trust, and, like a mere promise to give, will [ * 311 ] not be enforced in equity: Dipple v. Corles, 11 Hare, 183; Re Glover, 2 J. & H. 186; and see In re Mills's Estate, 7 W. R. (V.- C. K.) 372; Fmiies v. Forbes, 6 W. R. (V.-C. W.) 92; Jones x. Lock, 1 L. R. Ch. App. 25; Lister v. Hodgson, 4 L. R. Eq. 30. [Where there is an intention merely to create a trust, and the set- tlor takes no further action, it cannot be enforced: Banks ^^ May, 3 A. K. Marsh, 435; Lanterman u Abernathy. 47 111. 437; Evans ■y. Battle, 19 Ala. 398; Minturn v. Seymour, 4 Johns. Ch. 498; Swan V. Frick, 34 Md. 139.] AVhere a paper is of a testamentary character, but invalid from want of proper execution, it cannot be enlarged or converted into a declaration of trusts, Warriner v. Rogers, 16 L. R. Eq. 340, 353; Milroy v. Lord, 4 De G. F. & J. 274. [If a settlor designs to ef- fect a valid settlement in a certain mode and the settlement fails to take effect by reason of an incomplet disposition, it cannot take effect in another mode not intended by the settler: See American notes to Brett's Lead. Cas. in Mod. Eq. 58 (Text Book Series).] A declaration of trust by the equitable owner of a chose in ac- tion, as for instance of a bond vested in trustees, will be supported: See Collinson v. Patrick, 2 Kee, 123, in which case in giving judg- ment. Lord Langdale, M. R., observed, "A declaration of trust is considered, in a court of equity, as equivalent to a transfer of the legal interest in a court of law; and, if the transaction by which the trust is created is complete, it will not be disturlied for want of consideration. If this had been a transaction resting on an agree- ment not conferring the legul iuter< st — if it had been an executory contract, this court, iu the absence of ci^nsidnalion, \vi uld not have given effect to it ; but, ifichat has been done is equivalent to a ti^ans- 367 * 312 ELLISON V. ELLISON. fei' of the legal interest, the parties in whose favour the trust is created are entitled to have the benefit of it in this court; and I am of opinion that this deed gives an interest to the plaintiffs which does so entitle them: see also Tierney v. Wood, 19 Beav. 330; Kronheim v. Johnsoyi, 7 Ch. D. 60. [A mere intention to convey the property upon trust, will not be sufficient if the proper steps are not taken for the purpose of making a valid transfer of the legal title to the intended trustee: Cressman's Appeal, 6 Wright (Pa.), 147; Henderson v. Henderson, 21 Mo. 379 ; Gilchrist u Stevenson, 8 Barb. 9.] Upon the same principle, if the equitable owner of property vested in trustees, as in the principal case, assigns it to them, or directs them to apply it upon trusts declared in favour of volun- teers, a fortiori if the trustees accept and act upon the trust, they will be enforced in equity. [If an absolute conveyance is made, no subsequent declaration can deprive the grantee of his beneficial interest: Ivory v. Burns, 6 P. F. Smith, 308; Brown V. Brown, 12 Md. 87; Chapman v. Wilbur, 3 Oregon, 326; Daw- son V. Dawson, Cheves Eq. (S. C.) 148; Johnson v. Clarkson, 3 Rich. Eq. 305.] In Ry croft v. Christy, 3 Beav. 238, Mrs. Ry croft, the cestiii que trust of money in the hands of a trustee, by deed without a consideration directed part of the dividends to be paid by him for the maintenance of an infant, a stranger to Mrs. Rycroft, and covenanted to indemnify the trustee, and agreed to allow the same out of the dividends of the trust fund. The trustee accepted the new trust and acted upon the deed. Lord Langdale, M. R., held, that, as there was no further instrument or formality to be executed, fi'om the moment when the direction was signed and accepted by the trustee a valid and executed trust was created, which Mrs. Rycroft could not revoke. See also Meek v. Kettleicell, 1 Hare, 471; WFadden v. Jenkins, 1 Hare, 458; 1 Ph. 153; Bent- ley V. Mackay, 15 Beav. 12; Bridge v. Bridge, 16 Beav. [ * 312] *322; Donaldson v. Donaldson, Kay, 711; Gilbert \. Over- ton, 2 Hem. & Mill. 110; Lambe v. Orton, 1 Dr. & Sm. 125. It does not, however, seem now to be considered essential to the validity of the creation of a trust by the beneficial owner of prop- erty, that there should be an acceptance or declaration of the trusts by the trustees in whom the legal interest is vested. See Tierney V. Wood, 19 Beav. 330. There land and stock were vested in the plaintiff Tierney, in trust for Wood, and the latter signed a docu- ment addressed to Tierney, directing that the land and stock should after his death be held for the benefit of certain persons. The doc- ument was not attested. It was held by Sir J. Eomilly, M. R., that an effectual trust within the meaning of the Statute of Frauds had been declared by the beneficial owner, and that the document was not testamentary. "The authorities," said his Honor, "show that the xjroper ]}erson to create the trust in personal property, is tlieper- 368 ELL'SON r. ELLISON'. *31.J son in whom the beneficial interest of the property is vested; and the trust boin": created by the beneticial owner, tlio trustee is bound, and if disposed to refuBo may be compelled to obey it. I am at a loss to find any reason which should cause this document to be effectual as a declaration of trust, so far as the stock is concerned, and not so, so far as the land is concerned. It is obvious, that in both cases the person enabled by law to declare t\n) trusts is the same. In the case before me, there can bo no doubt that if Mr. Tierney had, in pursuance of this paper, signed a document to the same effect, stating that he held the property on the trusts therein mentioned, the trusts would, apart from any question on the con- struction of the document, have been tnWy and completely declared; and it is also clear, that if the trustee had declared that he held the property on any trusts not recognized or sanctioned by Wood, the beneficial owner, such declaration of trust "woiild have been insuffi- cient and unavailing, and would have given no interest to the sup- posed cestui que trust. A declaration of trust in writing, by Tierney, following that of Wood, would therefore have been merely formal, and would have been valid only so far as it followed Lis in- structions, and would have been void to the extent, if any, that it departed from his directions. I think that the fair conclusion to be drawn from these considerations is, that the person to create the trust, and the person who is by law enabled to declare the trust, are one and the same, and that, consequently, the beneficial owner is the person, by law, enabled to declare the trust." See also Donohoe v. Conrahy, 2 Jo. & L. 689; Kronheim v. Johnson, 7 Ch. D. 60. *Nor is notice of the declaration of trust to the cestui [ * 313 ] que trust necessary: Tate v. Leithead^ Kay, 658. [If the cestui que trust cannot bo identified, the trust cannot bo executed: Dillaye v. Greenough, -15 N. Y. 438; Ownes v. Ownes, 8 C. E. Green, 60. It is not necessary that the beneficiary have knowledge of the settlement if he afterwards accepts and ratifies it: Weston v. Baker, 12 Johns. Ch. 276; Shepherd?;. M'Evers, 4 Johns. Ch. 136.] Although a man at law could not make a gift of chattels to his wife, he might do so in equity, not only by the intervention of an- other person as trustee, but also by constituting himself a trustee, for his wife. Lucas v. Lucas, 1 Atk. 271; McLean v. Longlands, 5 Ves. 79; Walter \. Hodge, 2 Swanst. 107; In re Whittaker, Whit- faker v. Whittaker, 21 Ch. D. 657. [See, Freeman v. Freeman, 9 Mo, 772; Vance v. Nogle, 20 P. F. Smith, 79; Baron r. Baron. 24 Vt. 375; Trenton Banking Co. v. Woodruff, 1 C. E. Green, 117. In Baddely v. Baddely, (9 Ch. D. 113), a husband, after reciting in a deed poll that he was beneficially entitled to the ground rents intended to bo settled, assigned them to his wife as though she were a single woman, and it was held that this amounted to a declara- tion of trust, and the court ordered it to bo carried into effect 24 WHITE ON EQUITY. 369 * 313 ELLISON V. ELLISON. This case was doubted in a later decision (In re Ercton, 17 Ch. D. 416). In Crawford's Appeal (11 P. F. Smith, 52), a husband credited his wife with a sum of money on his books, and it was held that this was an effectual declai-ation of trust iu the wife's favor.] But now she may acquire and hold property as her ireparate property as a feme sole without a trustee, 45 & 40 Vict. c. 75, s. 1. There must, however, be clear and distinct evidence corrobora- tive of the wife's testimony, in order to establish a gift from her husband. [Grant v. Grant, 34 Beav. 623; In re Breton's Estate, 17 Cn. D. 416; 7u re Finch, 23 Ch. D. 267, but a mere declaration of intention to give will not be sufficient: lb. [In America the tendency is to favor trusts for a wife and children, but a wider range of relationship would not be so favored: Buford v. McKee, 1 Dana, 107; Bright v. Bright, 8 B. Mon. 194; Mclntyrer. Hughes, 4 Bibb. 186.] It seems, moreover, that presents made by a husband to his wife, whether in contemplation of, or subsequent to their marriage, are the separate property of the wife, and do not form part of the hus- band's personal estate: lb. If a testator by icill gives personal property upon trusts to be afterwards declared, he cannot, either by any instrument not duly executed as a will or codicil, or by parol, make any valid declara- tion of trust; and the property will go either to the next of kin or the residuaiy legatees: Johnson v. Ball, 5 De G. & Sm. 85. [A deposit of money in a bank to the credit of another will constitute a valid declaration of trust: Taft v. Bowker, 132 Mass. 277; Gar- ish V. New Bedford Inst, for Saving, 128 Mass. 159; Blanchard v. Sheldon, 43 Vt. 512.] Imperfect gift as distinguished from a declaration oftriist.^ — We must, always, carefiily distinguish that class of cases in which the settlor constitutes himself a trustee for volunteers, from another class of cases in which a person has ineffectually atfem2:>ted by an imperfect gift, to confer the ivhole interest upon volunteers or trus- tees for their benefit; for it has been repeatedly determined, that the most clear intention to confer an interest will not be sufficient to create a trust in favour of a volunteer. [See Bond v. Bunting (28 P. F. Smith), Judge Hare (whose opinion was adopted by the Supreme Court) said, "It was established, at an early period, that the transfer of the legal title, in trust, for a third person, would ve.st the beneficial interest in the latter. Such was the origin of use and subsequently of trusts. A declaration of tmst, under these circumstances, substantiates the existence of a duty, which would be oblioratory, independently of the declaration. But it does not fol- lov/ that an admission can give rise to a fiduciary obligation where none exists. The ordinary power of a chancellor, said Gibson, C. J., in Read v. Robinson, 6 W. & S. 329, extends no further than 370 ELLISON V. KLLISON. * 318 the execution of a trust suiliciently framed to put the title out of the grantor, or the execution of an agreement for a trust founded on a valuable consideration; and the language of the same judge, in Morrison v. Beires, 2 W. & S. 80, shows that he regard (-d a de- claration of trust as inoperative where it does not rest on an ante- cedent ol)ligation. "In this uncertainty we may revert to principles. A declaration of trust by the owner of property in favor of a volunteer has no peculiar efficacy. It is simply a gift, which derives its force from the will of the donor. As applied to land, it is, consequently, in- valid, if not under seal; and j)erhaps even then, unless the estate lies in grant. AVhere the law prescribes the mode of conveyance, it must be followed. "When, however, there are no legal means of transfer, any words expressing an intention to confer a present in- terest may be eftectual in equity. There can be no clearer manifes- tation of a design to part with the right of property in favor of an- other than an absolute assignment to him or for his use. The no- tion that a gift, which would be valid if made through a declara- tion of trust, will fail if put in the form of an assignment, was accordingly repudiated in liichardson r. Richardson, Law Rep., 3 Eq. 686. "The question was, whether the beneficial interest in certain promissory notes passed by voluntary assignment of all the donor's personal estate. She did not endorse the notes, and the legal title consequently remained in her. The chancellor said that it was im- possible to contend, after the decision in Kekewich v. Manning, 1 DeG. M. & G. 176, that the beneficial interest did not pass by the assignment, but because the decision in that case was not merely that a person, who, being entitled to a reversionary interest or to stock standing in another's name, assign it by a voluntary deed thereby possess it notwithstanding that he does not in fonnal terms, declare himself to be a trustee of the property; but it amounts to this, that an instrument executed as a present and complete assign- ment is equivalent to a declartion of irwA. '"Here, as in Keke- wich i\ Manning, the instrument was under seal, but the ratio deci- dendi was broad enough to include an assignment by parol. Ac- cordingly, where the donor signed and delivered the following memorandum to his physician, "I hereby give and make over to Dr. Morris ftn India bond, number D. 506, value 10,000, as some token for his kind attention to me during illness" — Lord Romilly said, "the writing is equivalent to a declaration of trust. If the donor had said: "I undertake to hold the bond for you," that would have been a declaration of trust, though there had been no delivery. This amounts to the same thing, and Dr. Morris is entitled to the bond." Bro. Morgan v. Malleson, Law Rep. 10 Eq. 475. "The decisions have advanced step by step to this conclu- sion, whi( h is now established in England. The case of Kennedy V. AY are r> ay be thought to indicate that it does not prevail in Penn- 371 *314 ELLISON t!. ELLISON. sylvania. I have ondeavored to show that the English authorities, on which Chief Justice Gibson relied, have been overruled. If this were a court of error, our course would be clear. As a tribunal of the first instance, we ought to adhere implicitly to the rul- ings of the court above. If the case of Kennedy v. Ware were identical with this, it would control our judgment. The assign- ment there was by parol. Here it is under seal. The difference seems to be immaterial according to the authorities, but it affords other consideration. The fund is given in trust for Jane & James S. Bond. They are described in the instrument as the children of Jno. R. Bond. If they are also Mi's. Bond's, there is a meritorious consideration arising from a tie of blood. It seems that equity will give effect to a provision for a wife or child, though not for a collat- eral relation: See Hayes v. Kershow, 1 Sandford, Ch. 258; Buford V- McKee, 1 Dana, 107; Denison v. Goehring, 7 Barr, 175; Kennedy V. Ware, 1 Id 447. It was alleged during the argument that these were Bond's children by a former wife, but this does not appear of record. On the whole we deem ourselves entitled to uphold the as- signment.] The leading case on this point is Antrobiis v. SmitJi, 12 Ves. 39. There Gibbs Crawford made the following indorsement upon a receipt for one of the subscriptions in the Forth and Clyde Navigation: "I do hereby assign to my daughter, Anna Crawford, all my right, title, and interest of and in the enclosed call, and all other calls, of my subscription in the Clyde and Forth Navigation." This not being a legal assignment. Sir S. Romilly nvgned, "that the father meant to make himself a trustee for his daughter of these shares." But Sir W. Grant, M. R., observed "Mr. Crawford was no otherwise a trustee than as any man may be called so [ * 314 ] who professes to give property by an instrument ''■ incapable of conveying it. He was not in form declared a trustee; nor was that mode of doing what he proposed in his contemplation. He meant a gift. He says, he assigns the property. But it was a gift not complete. The property was not transferred by the act. Could he himself have been compelled to give effect to the gift by making an assignment ? There is no case, in which a party has been compelled to perfect a gift, which, in the mode of making it, he has left imperfect. ["If the settlor proposes to convert himself into a trustee, then the trust is perfectly created and will be en- forced as soon as the settlor has created an express declaration of trust, intended to be final and binding upon him, and in this case it is immaterial whether the nature of the property be legal or equitable, whether it be capable or incapable of transfer:" Lewin on Trusts (Text Book Series) 153; Stone v. Hackett, 12 Gray, 227; Lane r. Ewing, 31 Mo. 75; Dennison v. Goehring, 7 Barr, 175; Graham v. Lambert, 5 Humph. 595; Ownes v. Ownes, 23 N. J. Eq. 60.] 'There is locus po^nitentioR as long as it is incomplete.' So, in Edwards v. Jones, 1 My. & Cr. 226, where the obligee of a bond signed a memorandum, not under seal, which was indorsed upon 372 ELLISOX V. ELLISON. * 315 the bond, and which purported to be au assignment of the bond, without consideration, to the ])erson to whom the bond was at the same time dehvered, Lord Coltenham, upon the authority of the doctrine laid down in Anlrobus v. Sniitk (12 Yes. 3'J), Avhich he said it was impossible to (piestion, held, that the gift was incomplete, and that, as it was without consideration, the Court could not give effect to it. So, also, in Dillon v. Coppin, 4 My. & Cr. 647, a vol- untary assignment of East India Stock and shares in the Globe In- surance Company, by a d(>ed poll, incapable of passing such prop- erty, was held, by Lord Cottenham, C, not to affect the settlor's in- terest in the East India Stock and the Globe shares. [The trans- fer of certificates of stock is sufficient to pass the title, without any change upon the coi'poration's books: Sargent v. Ins. Co. 8 Pick. 90; Eames v. Wheeler, 19 Pick. 444; Blasdel v. Locke, 52 X. H. 23S; Sherwood v. Andrews, 2 Allen, 79. If a sti'anger is to be the trustee, or the corporation laws require it, the rule is different: Gilchrist v. Stevenson, 9 Barr, 9; Lon- dale's Estate, 29 Pa. St. 407.] In Searle v. Law, 15 Sim. 95, A. made a voluntary assignment of turnpike road bonds and shares in an insurance and in a banking company to B., in trust for himself for life, and after his death for his nephew. He delivered the bonds and shares to B., but did not observe the formalities required by the Turnpike Act, and tho deeds by which the companies were formed, to make the assignment effectual. Sir L. Shadicell, V.-C, held, that on A.'s death no interest in either the bonds or the shares passed by the assignment, and that B. ought to deliver them to the executor of A. "If that gentle- man," observed his Honor, "had not attempted to make an assign- ment of either the bonds or the shares, but had simply declared, in writing, that he would hold them upon the same trusts as ai*e ex- pressed in tho deed, that declaration would have been binding U()on hitn; and whatever bound him, would have bound his personal representative. But it is evident that he had no intention whatever of being himself a trustee for any one, and that he meant all the persons named in the deed as cestuis que trustent to take the provi- sions intended for them through the aperation of that deed. He omitted, however, to take the proper steps to make that deed an efitectnal assignment; and, therefore, both the legal and the benefi- cial interest in the bonds and shares vested in him at his death." [Sufficient delivery to pass title is inferred from slight evidence, and intention has much to do with deliverv: Moore v. Hazleton, 9 Allen, 102; Grangiac v. Arden, 10 Johns. ^293.] * Where however a deed assigning shares is incomplete, [ * 315 1 as not amoianting either to a declaration of trust, and from not having been registered under the Companies Clauses Act 1845 (8 Vict c. 16, ss. 14 — 20), the company not being parties to tho suit, the Court may allow a I'easonable time to institute proceedings for registration if so advised: West v. West, 9 L. R. Ir. 121. 373 *316 ELL'SON V. ELLISOX. "Where a mortgagee in fee assigns tlie debt secured, but neglects to convey the legal estate to tnastees for volunteers, the settlement being incomplete cannot be enforced. See Woodford v. Charnley, 28 Beav. 96; there Alice Fisher was mortgagee in fee of land con- veyed to her to secure 5000Z. and interest, but the mortgage deed contained no covenant for payment of the 5000Z. The mortgagor died inestate. Alice Fisher afterwards executed a voluntary settle- ment by which she assigned the sum of 5000?. to trustees, and gave them a power of attorney to recover it. The legal estate teas never conveyed by Alice Fisher to the trustees. It was held by Sir John Romilly, M. E.., that the voluntary settlement was incomplete and could not be enforced against the settlor or any person claiming under her. See also Coningham v. Plunkett, 2 Y. & C. C. C. 245; Ward v. Audland, 8 Beav, 201; Price v Price, 14 Beav. 598; Scales V. Maude, 6 De Gex, Mac. & G. 43; Weale v. Olive, 17 Beav. 252; Peckham v. Taylor, 31 Beav. 250; [An equitable mortgagee by deposit of a deed cannot pass his interest in the property by a parol voluntary gift accompanied by delivery of the deed and as his interest in the deed is only incidental to his interest in the mortgage, the donee has no right to retain it: In re Richardson Shillito v. Hebson 30 Ch. D. 396.] Lambert v. Overton, 13 W. R. (V.-C. S.) 227. [An imperfect conveyance, which is merely voluntary, will not be aided or enforced in equity: Holland v. Hensley, 4 Clark, 222; Pringle v. Pringle, 9 P. F. Smith 281; Acker t'. Phcenix, 4 Paige 305; Pinckard v. Pinckard, 23 Ala. 649; Reed v. Vannors- dale, 2 Leigh, 569; Mintum v. Seymour, 4 John?. Ch. 498.] In some recent cases, there appears to have been an inclination on the part of some judges, to hold that to amount to a declaration of trust, which, according to the ordinary rules of construction would amount only to an imperfect assignment: See Richardson v. Rich- ardson, 3 L. R. Eq. 686; Morgan v. Malleson, 10 L. R. Eq. 475. The recent decision, however, of Sir G. Jessel, M. R., in Richards V. Delbridge, 18 L. R. Eq. 11, [See American notes to this case in Brett's Lead. Cas. in Mod. Eq. (Text Book Series) 55.] has put the law upon this subject on a very satisfactory footing. In that case, J. Delbridge, who was possessed of leasehold business premises and stock in trade, shortly before his death purported to make a volun- tary gift in favour of his grandson E. B. Richards, who was an in- fant, and assisted him in his business, by the following memorandum, signed and endorsed on the lease: "This deed, and all thereto be- longing, I give to E. B. Richards from this time forth, Avith all the stock in trade," signed, '"J. Delbridge." J. Delbridge delivered the lease to the mother of his grandson. It was held by Sir G. Jessel, M. R., that there was no valid declaration of trust of the property in favour of E. B. Richards. " A man," said his Lordship," r * 316 ] may transfer his property, without valuable ^' considera tion, in one of two ways: he may either do such acts as amount in law to a conveyance or assignment of the property, and 374 ELLISON V. F.LLISOX. *.j17 thus completely divest himself of the lej^al owoership, in' which case the person who by those acts acquiies the propeity, takes it beneficially, or on trust, as the case may be; or tbe legal owner of the property may, by one or other of the modes recofjjnized as amoixnting to a valid declaration of trust, constitute himself a trus- tee, and, -without an actual transfer of the legal title, may so deal with the property as to deprive himself of its beneficial ownership, and declare that ho will hold it from that time forward on trust for the other person. It^is true he need not xisc ths irordH '' I declare myself a trustee,^ hid he must do something irhich is equivalent to it, and use expressions u'liich have that meaning ; for, however, anx- ious the Court may be to carry out a man's intention, it is not at liberty to construe words otherwise than according to their ])roper meaning. [Any words which show that the donee was intended to take beneficial will answer the purpose: Day v. Roth, 18 N. Y. 458; Piercer. McKeehan, 3 W. & S. 283. " There must in general be sufficient words to create a trust; but no particular form of expression is necessary. It is enough if there bo a complete intention expressed with sufficient clearness." Bis- pham's Eq. (4th. Ed.) See 05.] " The cases in which the question has arisen are nearly all cases in which a man, by documents insufficient to pass a legal interest, has said, 'I give or grant certain property to A. B.' Thus in Morgan V. Malleson (10 L. R. Eq. 475), the words were, I hereby give and make over to Dr. Morris an India bond,' and in Richardson v. Rich- ardson (3 L. R. Eq. 686), the words were, ' grant, convey, and as- sign.' In both cases the judges held that the words were effectual declarations of trust. In the former case, Lord Romilly considered that the words were the same as these: 'I undertake to hold the bond for you,' which would have undoubtedly amounted to a declar- ation of trust. " The true distinction appears to me to be plain, and beyond dis- pute: for a man, to make himself a trustee, there must be an ex- pression of intention to become a trustee, whereas Avords of present gift show an intention to give over property to another, and not to retain it in the donor's own hands for any purpose, fiduciary or otherwise. In Milroy v. Lord (4 De G. F. & J. 264, 274), Lord Justice Turner, after referring to the two modes of making a volun- tary settlement valid and effectual, adds these words: 'The cases, I think, go furtlier, to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made efl'ectual by being con- verted into a perfect trust." " It appears to me thai that * sentience contains the whole [ "^' 317 ] law on the subject. [Any Avords which indicate with suf- 375 * 31T ELLISON V. 1 LLISON. ficient certainly, a purpose \o create a trust, will be effective in so doing: Norman v. Burnett, 25 Miss. 183; Brown v. Combs, 5 Dutch. 30; Fisher v- Fields, 10 Johns. 495; Carpenter v. Cushraan, 105 Mass. 419; Porter v. The Bank of Rutland, 19 Vt. 410.] If the decisions of Lord Romilly and Vice-Chancellor Wood were right, there never could be a case where an expression of a present gift would not amount to an effectual declaration of trust, which would be carrying the docti-iue on that subject too far. It appears to me that those cases of voluntaiy gifts should not be confounded with another class of cases, in which words of present transfer for valuable consideration [As to what constitutes a valuable consideration, see Fownall v. Taylor, 10 Leigh, 183; Haskill ?;. Freeman, 1 Wms. Eq. 34; Baldwin v. Humphries, 44 N. Y. G09; Wadsworth v. Wendell, 5 Johns, Ch. 224.] are held to be evidence of a contract which the Court will enforce. Applying that reasoning to cases of this kind, you only make the imperfect instrument evidence of a contract of a voluntary nature, which this Court will not enforce; so that, follow- ing out the principle even of those cases, you come to the same con- clusion." See also Moore v. Moore, 18 L. R. Eq. 474, 482; Heariley v. Nicholson, 19 L. E. Eq. 233; In re Breton's Estate, 17 Ch. D. 410; Hayes v. Alliance Assurance Co., 8 L. R. I. 149. Sed. vide Baddeley \. Baddeley, 9 Ch. D. 113; Fox\. Hawks, 13 Ch. D. 822. ["Where there is a valuable consideration, and a trust is intended to be created, formalities are of minor importance, since if the transaction cannot take effect by way of trust executed, it may be enforced bv a Court of Equity as a contract:" Lewin on Trusts, Sec. 07.] ' ..." Assignments of legal or equitable choses in action to or in trust for volunteers valid.] — Assignments both, of equitable and legal choses in action, although nothing (previous to the acts which will be hereafter noticed) passed thereby at law, have been held binding in favour of volunteers, where the assignor has done all in his power to make the assignment complete. [Howard v. Bank, 40 Vt. 597 ; Padfield v. Padfield, 08 111. 210; Graham r. Lambert, 5 Hump. 595; Lans V. Ewing, 31 Mo. 75.] Thus, in Sloane v. Cadogan, Sugd. V. & P., App. No. xxiv., 11th ed., Mr. W. Cadogan, having an equit- able reversionary interest in a fund vested in trustees, assigned it to other trustees upon trust for volunteers. It was contended by Sir Edioard Sugden, in his argument, that, in order to constitue an actual settlement, so as to enable a volunteer to claim the benefit of it, it is absolutely necessary that the relation of trustee and cestui que trust should be established; that Mr. W. Cadogan did all he could; but that is not enough: that he could not make an actual transfer; that the trustees in whom it was vested would not have' been authorised in transferring it of their own authority to the trustees of Mr. W. Cadogan's settlement. "If," he says, "a man is seised of the legal estate, and agree to make a voluntary settlement, it cannot be enforced. Can it make any difference that the legal 376 ELLISON V. ELLISON. * 319 estate happens to be outstanding? Certainly not. As the settle- ment, therefore, "was not completely perfected, the Earl could not en- force it." Sir W. Grant, M. 11., however, held, thai the equitable as- signment created a perfect trust. "The Court," observed his Honor, "will not interfez'o to give perfection to the instrument, but you may constitute one a trustee for a volunteer. * Here [ '" 318 ] the fund was vested in trustees : Mr. W. Cadogan had an equitable reversionary interest in that fund, and ho assigned it to certain trustees, and then the first trustees are trustees for his as- signs, and they may come here; for when the trust is created, no consideration is essential, and the Court will execute it though voluntary." In Fortescue v. Barnett, 3 My. & K. 3f), J. B. made a voluntary assignment by deed of a policy of assurance effected upon his own life and upon his own name for 1000/., to trustees, upon trust for the benefit of his sister and her children. The deed was delivered to one of the trustees, and the grantor kept the policy in his own possession. No notice of the assignment icas given to the assur- ance office, and J. B. afterwards surrendered, for a valuable con- sideration, the policy and a bonus declared iipon it to the assurance office. A bill was tiled by the surviving trustee of the deed against J. B. to have the value of the policy replaced. It was argued by Mr. Peniberton, for the defendant, upon the distinction laid down by Lord Eldon in the principal case, between an actual transfer and a mere covenant to transfer stock, that the assignment of stock by deed, no actual transfer of the stock having been made, and an assignment of a policy of assurance by deed, the policy remain- ing in the hands of the grantor, stood upon exactly the same foot- ing. But Sir. J. Leach, M. R , held, that J. B. was bound to give security to the amount of the value of the policy assigned by the deed. "In the case," observed his Honor, "of a voluntary assign- ment of a bond, where the bond is not delivered, but kept in the possession of the assignor, the Court would undoubtedly, in the ad- ministration of the assets of the assignor, consider the bond as a debt, to the assignee. There is a plain distinction between an assignment of stock,, ichere the stock }tas not been transferred, and an assign- ment of a bond. In the former case, the material act remains to be done by the grantor, and nothing is in fact done which will entitle the assignee to the aid of this Court until the stock is transferred ; whereas the Court will admit the assignee of a bond as a creditor, "In the present case, the gift of the policy appears to me to have been perfectly complete without delivery. Nothing remained to be done by the grantor ; nor could he have done what he afterwards did to defeat his own grant, if the trustees had given notice of the assignment to the assurance office. The question here does not turn upon any distinction between a legal and an equitable title, but sinipljj npon ichether any act remained to be done bij the grantor, which, to assist a volunteer, this * Court would [ * 319 ] 377 * 320 ELLISOX V. ELLISON. not compel him to do. I am of opinion, that no act remained to be done to complete the title of the trustees. The trustees ought to have given notice of the assignment; but their omission to give notice cannot affect the cestui que trust." See, also, Godsal v^ Webb, 2 Kee. 99; Pearson v. The Amicable Assurance Office, 27 Beav.'229; Pedder v. Mosely, 31 Beav. 159; In re King, 14 Ch. D. 179; and the remarks of Lord Cottenham, C, in Edtoards v. Jones, 1 mV. & C. 238. Upon the authority of Sloane v. Cadogan and Fortescue v. Bar- nctt, it has been held, that the assignment of a debt to a volunteer was binding, although nothing passed at law. See Blakely v. Brady, 2 Dru. & Walsh, 311. There A. made a voluntary assignment to B. of a note or memorandum in writing, being the acknowledgment of a sum of 1,620Z. then due to him from K., and all interest due, and to accrue due, upon trust to pay the interest thereof unto A., his executors, administrators, and assigns, for his life, and a period of fourteen months afterwards, and, at the expiration of the said fourteen months, after making certain payments therein mentioned, as to the residue, in trust for B. absolutely. The deed also con- tained a power of attorney to B. to recover the said debt. A. soon afterwards died, without having made any will or other disposition of the property. The administrator of A. refused to allow his name to be used to enable B. to recover the said sum, having actually him- self commenced an action for that purpose. Upon a bill filed by B. to restrain proceedings in the action, and to carry the trusts of the deed into execution, it was held by Lord Plunkett, that, as the transaction between A. and B. was complete, the deed, though vol- untarv, should be carried into execution. "It is asked," said his Lordship, " why does the plaintiff come into this Coiut, if the as- signment is imperfect ? The answer is obvious : he comes here be- cause the property is in the defendant, to whom the ecclesiastical court has granted administration, and he is an administrator in trust. Now you may constitute a trustee for a volunteer ; and the case of Sloane v. Cadogan (Sugd. V. &P. App. xxiv. 11th ed.) is di- rectly in point as to that. The only diff'erence is, that in the present case, the law has created the trust ; and in Sloane v. Cadogan the trust was created by the act of the donor. See also Parnell v. Hingston, 3 Sm. & G. 337; Ga7inon v. White, 2 Ir. Eq. Rep. 207; Roberts v. Lloyd, 2 Beav. 370 : sed vide Sewell v. Moxsy, 2 Sim. N. S. 189." The remarks however of Lord Langdale m Tlard v. Audland, b Beav. 201, seem to be scarcely consistent with the cases of [ *■ 320 ] Sloane * v. Cadogan, Fortescue v. Barnett, and Blakely \. Brady, for there his Lordship appears to be of opinion that the mere voluntary assignment of a chose in action is not bind- ing upon the ground that nothing thereby passes at law, and the transaction is, therefor^-, incomplete. This also seems to have been the opinion of Sir L. Shadwell, V.-C, in Beatson v. Beatson, 12 Sim. 378 ELLISON V. ELLISON. *' 321 291 and HoUoicay v. Ileadington, 8 Sim. 024 ; and of Sir J. Wig- ram, V.-C, iu Meek v. Kettlewell, 464, in which case however his Honor observed, that ho decided only that a voluntari/ assignment of a mere expectancy, not communicated to those in whom the legal interest was, did not create a trust in equity, within the principal of the cases relied upon by the plaintiff. This decision, on appeal, was affirmed by Lord Lyndkurst; 1 Ph. 842. [The assignment of a chose in action cannot bo enforced by a mere volunteer, unless the transaction has so far progr«3ssed as to have assumed the nature of a voluntary trust. If there is an executory agreement to assign, that agreement, in order io be enforced, must be supported Vjy a consideration ; Gibson, C. J., in Kennedy's Exrs. v. Ware (1 Barr (Pa.), 450), seems to think that all assignments were in their na- ture executory, and should be supported by a consideration.] The leading case, however, of Keketvich v. Manning (1 De Gex, Mac. &G. 170) must be considered in effect, though perhaps not ex- pressly, as overruling Holloivay v. Headington (8 Sim. 824), Ward V. Audland (8 Beav. 201); S. C, C. P. Coop. Ptep. 140; S Beav. 201, and Meek v. Kettlewell (1 Hare, 404; 1 Ph. 342). The case of Kekewich v. Manning (1 De Gex, Mac. & G. 170) is as follows : A lady entitled absolutely to the reversion in stock, sidiject to the life interest of her mofhcr therein, and which stock was standing in the joint names of herself and her mother, assigned her interest in this stock on her marriage, to trustees in trast for herself for life, remainder to her husliand, for life, and after their decease, in trust for a niece, and for the issue of the marriage and the issue of the niece according to appointment ; and in default of issue of the mar- riage,in trust for the niece of the settlor. No transfer of the fund took place,but the mother had notice of the settlement. There was no issue of the marriage. It was held by the Lords Justices Knight-Bruce and Lord Cranworth, that even if the settlement were voluntary as regarded the niece and not supported by the marriage consideration (which point, however, the Court did not decide), the assignment being complete would be enforced by the Court. " Suppose," said Lord Justice Knight - Bruce, " stock or money to be legally vested in A. as trustee for B. for life ; and subject to B.'s life interest, for C. absolutely ; surely it must be competent to C. in B.'s lifetime, with or without the consent of A., to make an effectual gift of C.'s interest to D. by way of mere bounty, leaving the legal interest and legal title unchanged and untouched. Surely it would not be con- sistent with natural equity or with reason or expediency to hold the contrr.ry, C. * being sni juris, and acting freely, [ * 321 ] fairly, and with sufficient advice and knowledge. If so, can C. do this better or more effectually than by executing an as- signment to D. ? It may possibly be thought necessary to the com- plete validity of such a transaction, that notice should be given to A.: upon that we do not express an opinion. "Suppose the case only varied by the fact that A. and C. are the 370 * 322 ELLISON V. ELLISON. trustees jointly, instead of A. being so alone? Does that make any substantial difference as to C.'s power, the mode of making the gift, or the effect of the act, C. not severing nor affecting the legal joint tenancy ? G. would necessarily have notice. Possibly it may bo thought material that B. should have notice likewise, but upon that we avoid saying anything, beyond referring to Meux v. Bell (1 Hare, 73), and to Smith v. Smith, mentioned in Meux v. BelV^ See also the elaborate judgment of Sir J. Stetvart, V.-C, in Voyle\. Hughes, 2 Sm. & Giff. 18; Re Waifs Trusts, 2 De G. Jo. & Sm. 365; Rich- ardson v. Richardson, 3 L. R. Eq. 686. And is has been decided that it is not essential to the validity of an equitable vohmtary assignment of personal property, at any rate where it has been acted upon by all parties, that it should be by deed. Lambe v. Orton, 1 Drew. & Sm. 125. [No written instrument is necessary to make a valid assignment of a chose in action ; it is sufficient if there is a verbal declaration whereby the intention to part with the ownership of the chose is properly manifested: Thompson v. Emery, 7 Foster, 269; Caldwell V. Hartupee, 20 P. F. Smith, 74; Ford v. Stuart, 19 Johns. 342.] A distinction has been taken in recent cases by Lord Romilly, M. E., to this effect, that although it is clear that an assignment by deed of reversionary personal property vested in trustees in favour of volunteers will be enforced in equity, yet, if, although property be vested in trustees, it is entirely in the power of the assignor, so that he could compel a transfer from them, should he neglect to do so, a mere assignment will, in the same manner as if the property had been legally vested in himself, be imperfect, that is to say, not so complete as he could have made it, and will consequently not be enforced by a Court of equity. Thus in Bridge v. Bridge, 16 Beav. 315, where it appears that a sum of stock was standing in the name of four trustees of a will by the terms of which they were to apply the dividends for the benefit of the plaintiff until he was twenty- five, at which age it was to be paid over to him. On the 10th of February, 1846, the plaintiff attained his age of twenty-one. On the 9th of April, 1847, he executed a voluntary deed by which he directed (amongst other things), that the personal estate to which he was entitled under the will, should thenceforth be considered as vested in the plaintiff and two new trustees, upon certain trusts therein mentioned. The deed also contained a covenant for further assurance. No transfer of the stock was made to the new [ * 322 ] * trustees. The plaintiff having filed a bill, seeking a declaration that the settlement of 1847 was not binding upon him, it was held by Sir John Romilly, M. R., that as there has been no legal transfer made, and no recognition of the trust by the original trustees, there was no complete trust constituted, and the plaintiff was therefore entitled to a transfer of the stock. "In my view of this particular case," said his Honor, "the question must bo regarded in exactly the same manner, whether the plaintiff 380 ELLISON V. ELLISON. * 323 or a atrangor had beon the third trustee. This being bo, thoro being four trustees of the will in whom the legal interest was vested, and the beneficial owner having assinged over the funds to these per- sons, in trust for certain persons as volunteers, no transfer is made to the now trustee so appointed, wor is there any reason as in Keke- tcich V. Manning (1 Do G. Mac. & G. 176), zrhi/ the transfer should not have been made. In Kekexcich v. Manning, the original trusts were not exhausted, but the life-estate of the mother continued in the stock, and until her death no transfer could have been made. The assignor had done all she could do. That is not so in this case. The trustees of the deed of settlerrient did not do anything inconsistent with the trusts which remained to be performed under the testator's will, and the trustees of the will seem not to have been advised to resist making any transfer to the trustees of the deed, until the settlor had attained his age of twenty-live years." So likewise in Beech v. Keep, 18 Beav. 285, A., subject to the life interest of B., was absolutely entitled to a sum of stock, which was standing in the names of two deceased trustees, to the survivor of whom A. was sole executor. Under these circumstances, A. by deed voluntarily assigned all her interest in the stock to B., "to the intent that he might be and become present and absolute owner thereof." A. hav- ing refused to execute a power of attorney to B., for a transfer of the stock, it was held by Sir John Romilly, M. R., that A. could not be declared by the Court to be a trustee of the fund, nor compelled to transfer it. His Honor distinguishing the case from Kekeivich V. Manning (1 De G. Mac. & G. 176), considered that it fell within the principle of his own decision in Bridge v. Bridge, 16 Beav. 315). "In the present instance," said his Honor, "it is obvious, there was no outstanding interest except the plaintiff's, and the transfer of the stock ought to have been made, if both jJarties had been ivilling to complete tlie transaction, and if the transfer had been made the x>l<^iT^^tiff^s title would have been complete. [A promise to pay out of a certain fund will not operate as an assignment of that fund: Ex parte Tremont Nail Co., 16 Nat. Bank Reg. 460; Ro- gers V. Hosack, 18 Weml. 319. But an order payable out of a cer- tain fund will operate as an assignment of that kind: Phoenix Iron Co. V. Phila., 2 W. N. C. 596; Morton v. Naylor, 2 Hill, 585; McLel- lan V. Walker, 26 Me. 114; East Lewisburg Co. v. Marsh, 10 Norris (Pa.), 96; Clark r. Mauran, 3 Paige, 373. Likewise a parol agree- ment to transfer stock as collateral security, followed by the execu- tion of a letter of attorney to transfer the same will amount to an assignment of the stock in equitv: Lightner's Appeal, 1 Norris (Pa.), 301; Tafii'. Bowker, 132 Mass. 277.] The argument em ployed by the plaintiff, that having himself the life estate, no trans- fer could bo made without his consent, clearly does not apply, because he would * be the absolute owner if this [* 323 ] assignment was perfect, and it was throughout his ex- press desire to got the transfer completed. The transfer of the 381 * oL'o . ELLISON V. ELLISON. stock is, ia fact, what the defendant has refused lo make, and it is thStt transfer which the plaintiff has all along been trying to get, and which is now asked, to make the transaction complete." Whether notice of an assignment of a legal or equitable chose in action is essential to its completion.^ — Notice of the voluntary assign- ment of an equitable interest or of a chose in action, to the trustees or debtor, according to the recent authorities, is not essential to its validity, but if the trustees or debtor, before notice of the deed, transferred the property or paid the debt, the donee would have no remedy against them. [A voluntary settlement may be good al- though the grantor retains the instrument, the rule being that when such a settlement is fairly made, the fact that the grantor retains possession of the deed, unaccompanied by other circumstances will not effect the validity of the settlement: Adams v. Adams, 21 Wallace, 185; Land v. Ewing, 31 Mo. 75; Souverbye t\ Arden, 1 Johns. Ch. 250.] Thus in Donaldson v. Donaldson, Kay, 711, the settlor having assigned stock standing in the names of trustees, to other trustees in favour of volunteers, it was held by Sir TF. Page Wood, V.-C, that as between the donees under the assignment, and the representatives of the assignor, the title of the former was com- plete, although no notice of the assignment had been given to the trustees iu whose names the stock was standing. " The question," said his Honor, " is, whether, notice not having been given to the trustee, the gift could be enforced. As to that, it has been said in some cases that the gift is complete when no further act is required to be done by the donor or donee: and that seems to imply a doubt, whether, if there were any act to be done by the donee, the gift could be treated as complete. But the assignment has completely passed the interest of the donor. It is true, that, if no notice of it were given to the trustees, they would be justified in transferring the stock to the original cestui que trust for w^hom they held it; and if they did so, there would be no remedy against them; and it is possible that the donee might not be able to recover the stock; but all that the donee has to do is, at any time he thinks fit, to give notice to the trustees before the stock is transferred; and when he has given such notice his title is complete: and unless the donor or his executors actually obtain possession of the fund the donee does not require the aid of the Court against them." See Roberts V. Lloyd, 2 Beav. 376; Re Way's Trusts, 2 De G. Jo. & Sm. 365. [In order to protect the title of an equitable assignee as against sub- sequent assignees, notice of the assignment should be given. This rule seems to be based on sound reason and commends itself for adoption. It has been followed in many decisions: See Murdoch V. Finney, 21 Mo. 138; Loomis u Loomis, 26 Vt. 198; Vanbuskirk V. The Hartford Ins. Co., 14 Conn. 145; Woodbridge v. Perkins, 3 Day, 364; Mc Williams v. Webb, 32 Iowa, 577; Coldfelte v. Cox, 1 Sneed, 330." 382 P:LLIS()X v. ELLISON. * 324 '• In tbo case of stock, a [jurchaser Avho i)erfects his rights by ob- taining a transfer on the books of a corporation will bo preferred to a prior purchaser who has bo(m loss diligent or fortunate: Shipam v. The iEtna Ins. Co., 20 Conn. 245; Tho People v. Elmore, 35 Cal. 633; Tho N. H. & N. Y. K. R. v. Schuyler, 34 N. Y. 30; Pink- crton V. R. R. Co., 42 N. H. 424; Bank of Commerce's Appeal, 23 P. F. Smith, 5'.J; Sabin v. The Bank of Woodstock, 21 Vt. 359. Notice to one of several trustees is in general notice to all."] As between volunteers, notice to the trustees or debtor of an as- signment of a chose iu action, will not aflPect priorities. Justice v. Wigmorc, 12 Ir. Ch. Rep. 2SU; but subsequent assignees for value will gain priority by giving notice before tho first assignee, even al- though ho were assignee for valuable consideration. []3etween dif- ferent assignees, the one who lirst gives notice to the debtor will, as a general rule, have the prior right. This i.^ in accordance with tho rule that tho assignee must do every thing to assert the ownership which tho nature of the subject-matter of the contract will allow: Spain V. Hamilton's Admr., 1 "Wallace, G24; Butler v. Plunkett, 1 Johns. & H. 441; Loveridge v. Cooper, 3 Russ. 1.] See note * to Rijall v. Roivles, vol. ii., post. [ '•' 324 J The legislature has recently made policies of life as- surance (30 & 31 Vict. c. 144), policies of marine assurance (31 & 32 Vict. c. 80), and the choses in action of bankrupts (32 & 33 Vict, c. 71, s. 22), assignable at law. See note to Ryall v. Bowles, vol. ii., where these acts are set out. [Equity completely recognize ^ and enforces tho present ownership of things not in possession: Garland V. Harrington, 51 N. H. 414; Cutts v. Perkins, 12 Mass. 206; Hinkle v. Wanzer, 17 How. 353; Brooks v. Hatch, 6 Leigh, 537. A debt, an expectation of an inheritance, a mere chance of acquiring an estate may be assigned in equity, and the modern tendency of courts of law is towards ado[>ting the doctrine of courts of equity upon these subjects: Low v. Pew, 108 M?»ss. 347; Leslie v. Guthrie, 1 Bing. (N. C.) 697.] By the Judicature Act, 1873 (30 & 37 Vict. c. 66), any absolute assignment by writing under the hand of the assignor (not pur porting to be by way of charge only) of any debt or other legal chose in action, uf which express notice in writing shall have been given to the debtor, trustee, or other person from whom tho assignor would have been entitled to receive or claim such debt or chose in action, shall bo and be deemed to have been effectual in law (sub- ject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed), to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of tho assignor." Sect. 25, sub-sect. 6. See Trower's Prevalence of Equity, pp. 45 — 53. If an accruing debt arising out of a contract be assigned, it will 3S3 ^- 325 ELLISON V. ELLISON. satisfy the provisions of sub-sect. 6 of sect. 6 of the Act of 1873, though not due at the time of the assignment (Br ice v. Bannister, 3 Q. B. D. 569, 575; Buck v. Robson, 3 Q. B. D. 686, 689), nor will it be necessary to give notice of the assignment to the debtor, until after the death of the assignor. See Walker v. Bradford Old Bank, 12 Q. B. D. 511. There, by a deed of assignment, all moneys then or thereafter to be standing to the credit of the assignor at a bank were assigned to a trustee on trust for the assignor for his life, and after his death on other trusts. At the date of the assign- ment the assignor's balance at the bank was ASl, at his death it was 217Z. Notice of the assignment was not given to the Bank until after the assignor's death. In an action by the trustee against the bank to recover the balance of 217/., it was held oy the Court of Queen's Bench, that the bank being a stranger to the assignment, could not set up the defence that it was voluntary, and therefore in- valid in equity; that the balance at the time of the assignor's death was a debt or legal chose in action within the meaning of sect. 25, sub-sect. 6, of the Judicature Act, 1873, that notice after the death of the assignor was sufficient; and that the plaintiff was entitled to recover. In Lee v. Magrath, 10 L. R. Ir. 45, the payee of a promissory note not negotiable and not then payable, indorsed it as [ * 325 ] follows : — * " I indorse the within promissory note for 100/. to my sister L.," and delivered over the note to L. There was no consideration for the indorsement and delivery; but it was found as a matter of fact that such indorsement and delivery were made by the payee with the intention of vesting in L. the beneficial interest in the money represented by the note. The payee died before the note fell due, and bequeathed to one of the makers of the note all the moneys she should die possessed of or entitled to, and appointed him executor. After the death of the payee, and before action, express notice in writing of the indorsement was given to the makers. It was held by the Common Pleas Division in Ireland, that the indorsement and delivery constituted a valid and eflFectual gift of this debt, and that L., as assignee of the debt, could maintain an action on it against the makers. Transfer of a mere Equitable Estate in Land in favour of Volun- teers, luhen valid.] — It has been held by Lord Romilly, M. R., that the transfer of an equitable estate in real property to volunteers was invalid. Bridge v. Bridge, 16 Beav. 315, 327, 328; but Lord St. Leonards, with reference to this decision, says, it "seems open to reconsideration." Sugd. V. & P. 719, 14th ed.; and see Gilbert v. Overton, 2 Hem. & Mill. 117: where Sir W. Page Wood, Y.-C, ob- serves, 'T do not wish to say more as to Bridge v. Bridge than this : that the points there dealt with will require much consideration. A man who conveys his equitable interest may well be considered to do all that can be required, and it would be a great extension of the estab- 384 ELLISON V. ELLISON. * 320 lished doctrine on these subjects to hold that if a legal estate in discoveredjjperhaps many years afterwards, to have been outstanding at the date of a voluntary settlement, the settlement itself is to bo deprived of effect. Where a settlor by a voluntary instrument cor veys all his interest, it may well bo hold that if that interest proves to be merely equitable, the assignee becomes entitled to claim a con- veyance of the legal estate from the person in whom it luay bo vested." With great deference, however, to the opinion of Lord St. Ijion- ards, it seems that if the Courts act by analogy to their decisions in other cases, they would very properly hold that where a person who either has, in himself or in trustees from whom he can call for a conveyance, the legal estate of real property; if he conveys only an equitable estate to or upon trust for volunteers, the conveyance, being imperfect, cannot bo enforced by the volunteers. AVhere, how- evei*, the legal estate is outstanding in trustees, and the settlor cannot call ui)on them to convey it to him, or as he may * direct, a voluntary conveyance or settlement to or in [ * )>20 ] favour of volunteers will be valid. Complete trust not revocable by settlor zvhen.^ — Where a complete trust, either by actual transfer on assignment or declaration of trust has been created, it cannot in the absence of a potver resei'ved for that purpose to the settlor be revoked by him by a subsequent volun- tary assignment {Nexvton v. AskeiL\ 11 Beav. 145; Rijcroft v. Christy, 3 Beav. 238), [Tho settlor of a voluntary trust sometimes seeks the aid of a court of equity to have the settlement revoked. Where there appears an intention to make an irrevocable gift and there is a suffi- cient motive for making such a gift the settlement will not bo dis- turbed, but if the deliberate intent does not appear and no motive exists the absence of a power of revocation is primCi facie evidence of mistake: See Miskev's Appeal, 107 Pa. St. 628; Garnsley v. Mundy, 24 N. J. Eq. 243^ Russell's Appeal, 25 P. F. Smith, 269.] and it is immaterial that the legal estate by accident or breach of trust gets back into tho hands of tho settlor, as he would simply take it is a trustee. See Smith v. Lyne, 2 Y, & C. C. C 345; Pater- son V. Murjyhy, 11 Hare, 88. But the settlor who creates a voluntary trust for others, subject to legacies or debts, may clearly defeat such trust by leaving legacies or creating debts to a greater value than the sul:)ject- matter of the trust. See Markicell v. Markwell, 32 Beav. 1 2 : there A. B. by deed voluntarily settled some property on trust for l)imself for life,: and after his decease upon trust to pay all the debts owing by >him, and any legacies or sums of money not exceeding 400Z. which he by will or writing should direct, and subject thereto in trust for his son William. Afterwards, in order to defeat the settlement, he gave voluntary bonds to the extent of 3,500/. in favour of other relatives. 2o WHITE ON EQUITY. 385 * 327 ELLISON V. ELLISON. It was held by Lord Rojnilly, M. E., that the bonds were efifectual, •and created valid debts payable out of the trust property. Where an instrument creating a valid and comiAete voluntary trust is duly sealed and delivered the obligation is complete, and the detention thereof by the settlor does not render it inoperative: Doe d, GarnonsY. Knight, 5 B. & C. 671 ; Exfon v. Scott, 6 Sim. 31 ; Hall V. Palmer, 3 Hare, 532- Fletcher v. Fletcher, 4 Hare, 67; Re Wai/s Trusts, 2 De G. Jo. & S. 365; Bonfield v. Hassell, 32 Beav. 217. Nor if it be lost can it be presumed that he destroyed, or re- served a power of revocation in the lost instrument : In re Booker, W. N. 1886, Feb., 6 p. 18. "VVe shall see hereafter that a voluntary settlement may be defeated in favour of purchasers under Stat. 27 Eliz. c. 4, and in favour of creditors by Stat. 13 Eliz. c. 5. Agreeinent or covenant to settle in favour of volunteers not en- forced.'] — The Courts of equity, as is laid down in the principal case, will not carry into effect a mere voluntary agreement, contract, or covenant to transfer property, even though it be under seal, and, therefore, on the face thereof carrying a consideration such as would support an action at law {Cotteen v. Missing, 1 Mad. 176; Colyear V. Mulgrave, 2 Kee. 81; Jeffreys v. Jeffreys, Cr. & Ph. 138; Dening V. Ware, 22 Beav. 184 ; Cheale v. Kericood 6 W. K., [ *327 ] * M. K, 494; Tatham v. Vernon, 29 Beav. 604); or to forgive a debt (Strong v. Bird, 18 L. K Eq. 315). [Swan V. Frick, 34 Md. 143; Cressraan's Appeal, 6 Wright (Pa.), 147; Henderson v. Henderson, 21 Mo. 379; Gilchrist v. Stevenson, 9 Barb. 9; Pinkard-y. Pinkard, 2 Ala. 124; Lantermannr. Abernathy, 47 111. 437; Read v. Robinson, 6 W. & S. 338; Bank v. May, 3 A. K. Marsh, 435; Minturn v. Seymour, 4 Johns. Ch. 498.] In Con- ingham v. Plunketf, 2 Y. & C. C. C. 245, a person who was entitled to stock, standing in the names of two trustees, gave instructions to his attorney to prepare a settlement of it for the benefit of A., B., and C, and to procure from the trustees a transfer for the purposes of settlement. The settlement was^prepared and a power of attorney for the transfer of the stock executed by both the trustees; but th« intended settlor died without having seen the settlement, and before the stock was actually transferred. Sir. J. L. Knight Bruce, V.-C, held, that no trust of the stock was constituted for A., B.. and C. [So long as the matter rests in intention and the transfer is incom- plete there is a locus ijoenit entire . See Appeal of Waynesburg College, 1 Amerman Pa., 130; Trough's Estate, 25 P. F. Sm. 115.] In Marler v. Tommas, 17 L. R. Eq. 8, a trustee executed a settle- ment declaring the trusts of a sum of 2000?., which was recited to have been paid to him by the settlor — a married woman. The re- cital as to the payment of the 2000Z. was untrue, and the trustee executed the deed upon the faith of a promise that the settlor would pay him the 2000Z. out of her separate estate. The 2000Z. was never 386 ELLISON V. ELLISON. * 328 paid. It was held by Sir G. Jessell, M. R., that neither the trustee of the settlement, nor a vohinteer under it conld enforce the promise. "It is said," observed his Honor, "that the lady promised the trustee to pay him the 2000/. out of her separate estate, and the question is, can a bare volunteer enforce this voluntary promise against the assets of the per.sou who made the promise? I am of opitiitni that there is no rule of equity which enables a volunteer to do this. " See also Pownall v. Anderson, 2 Jur. N. S. 857. Where, however, a person entered into a voluntary covenant to surrender copyholds, and in the the meanichile to stand possessed of them for trustees for the volunteers, though the covenant to sur- render per se cannot be enforced, yet a valid trust is constituted for the volunteers: Steel v. Waller, 28 Beav. 460. It has at length been settled that a merely meritorious eovslder- atton, as a provision for a wife or children, after marriage, will not be a sufHcient inducement for a Court of equity to lend its aid in enforcing a voluntary agreement or covenant, or in giving eflect to an imperfect gift as against the settlor himself: AntrobasY. Smith, 12 Ves. 39,46: HoUoway v. Headington, 8 Sim. 325; Wolrond\. }Voh-ond, Johns. 25. AVith regard to persons claiming under the settlor, it seems that formerly if a party after he entered into an agreement or covenant to settle property in favour of volunteers supported by a meritorious consideration only, subsequently executed a voluntary settlement, *or died without having during his life made [•* 328 ] a valid disposition thereof, the parties intei'ested under the agreement might enforce it in equity as against the volunteers under the settlement (Bolton v. Bolton, 3 Swanst, 414n. ), or against a devisee or legatee (ib.), heir-at-law, or next-of-kin (Watts v. Bullas, 1 P. "Wms. 60; Goring v. iVas/i, 3 At k. 186; Bodgersy. Mar- shall, 17 Ves. 294), of the settlor, provided that these persons could not equally claim a meritorious consideration, as, if for instance, they were the children of the party entering into the agreement, and in such case the Court would not interfere against them unless it were found upon a reference that they were provided for in some other way. Goring v. Nash, 3 Atk. 386, 192; Rodgersv. Marshall, 17 Ves. 294. It seems, however, to be now clearly settled, that a voluntary agreement or covenant, though under seal, cannot upon the ground of a merely meritoi'ious consideration be enforced as against volun- teers claiming under the settlor, even although they may not bo otherwise provided for. See Jefferys v. Jefferys, Cr. & Ph. 138, and Dillon v. Coppin, 4 My. & Cr. 647, distinctly OA'erruling the decision of Sir E. Sugden, L. C, in Ellis v. Nimmo, 1 L. k G. t. Sugd. 333. See also Evelyn v. Temj^ler, 2 Bro. C. C. 148; Antra- bus V. Smith, 12 Ves. 39; Holloicay v. Headington, 8 Sim. 324; Joyce V. Hutton, 11 Ir. Ch. Eep. 123. It has, however, always been held that parties claiming as volun- 387 * 329 ELLISON V. ELLISON. teers on a merely meritorions consideration, could not enforce an agreement or covenant to settle as against creditors of a purchaser from the settlor. Finch v. Earl of Winchelsea, 1 P. Wms. 277; Bolton V. Bolton, 3 Swanst, 414 n. ; Garrard v. Lord Lauderdale, 2 K & M. 453, 454. A party entitled to property tinder an imperfect voluntary settle- ment, may by the outlay of money upon the faith of the gift with the knowledge and concurrence of the settlor, acquire the right to be considered no longer a volunteer but a purchaser, and in that capacity he will be able to call for a conveyance of the legal estate. See Diilivyn v. Llewellyn, 4 De G. F. & J. 517. As a rule contracts for value enforced only upon the ajjplication of a party thereto, and if so enforced carried out in its entirety even i)i favour of volunteers.^ — We have already seen that the court will not at the instance of a volunteer enforce an incomplete trust, or an agreement or covenant to create one. It is clear, moreover, as a general rule that the court will not, upon the application of a stranger to an executory co7itract, as dis- tinguished from an executed trust, although taking as a [ * 329] volunteer a *benefit thereunder, decree specific perform- ance of such contract in his favour. See Colyear v. Countess of Mulgrave, 2 Keen, 81, 98. [A contract is executory when the thing agreed has not been done: Fletcher v. Peck, 6 Cranch,"87; and executed when the thing has been done: Robin- Bon V. Robinson, 44 Ala. 227; Frazer v. Robinson, 42 Miss. 121.] There a father having four natural daughters and a legitimate son, entered into an agreement with his son, evidenced by certain deeds, whereby the father covenanted to transfer the sum of 20,000?. to a trustee, for the benefit of his four natural daughters, and the son covenanted to pay the debts of his father. The son paid some of the father's dabts, and before the covenant on the part of the father was performed, died, having by his will given the whole of his property to his father, who became the son's personal representa- tive. Upon a bill being filed by one of the natural daughters, pray- ing to have the agreement executed against the estates of the father and the son, a demurrer thereto was allowed by Lord Langdale, M. R. "I apprehend," said his Lordship, "that when two persons, for valuable consideration between themselves, covenant to do some act for the benefit of a mere stranger, that stranger has not a right to enforce the covenant against the two, although each one might as against the other. The misfortune for the natural daughters was that the son died before the executory agreements were carried into effect." See also Ex jjarte Williams, Buck, 13; Ex 2^cirte Peele, 6 Ves. 602. 604; In re D'Angibau, 15 Ch. D. 242; Hill v. Gomme, 1 Beav. 540; 3 Sra. & G. 141; Cramer v. Moore, 3 Sm. & G. 141; Joyce v. ILdton, 11 Ir. Ch. Rep. 123; and see also Croio V. Rogers, 1 Str. 592; Berkeley v. Hardy, 5 B. & C. 355; Lord 388 KLLISON y. KLLISON. * o>0 SouUiampton \. Brown, B. 'ct C. 718 •, Chester field ^ dtc, Colliery V. Hawkins, 8 H. & C. 077. Upon the saiiio priuci})lo where A. entered into a contract with B. to give lip to him an estate which had l)een the subject of much liti- gation, in consideration of B. undertaking lo pay to 1 ho solicitor his costs with interest, it was held that the soHcitor (not being a party to the contract, and being so far as it was concerned a volunteer only), was unable to onfoi'co such contract: Moss v. Bainbri'jge, IS Beav. 478, 482; S. C. on appeal, Do G. Mac. & G. 292. There are, however, some exceptions to this rule. 1st. The court woiild enforce a contract in a marriage settlement at the instance of the children of the man'iage, but this is an excep- tion from the rule in favour of those who are specially objects of the settlement: In re I/xlngibaa, 15 Ch. D. 242; see also Frebble v. Bog- hurst, 1 Swanst. 809, 580) and who are termed by a very learned judge, " not only objects of, but quasi parties to it," per Lord Cot- tenham, C, in Hill v. Gomme, 5 My. & C. 254. [The equity to a settlement is the privilege of the wife and can be enforced only by her or it may be waived by her. The children can not assert the right themselves but when it has been made it will enure to the benefit of the children : Bispham's Eq., Sec. 113; Perry on Trusts, Sec. 027. • As to the parties against whom the wife's equity to a settlement will be enforced, see Moore v. Moore, 14 B. Mon. 259; Page v. Estes, 19 Pick. 209; Udall v. Kenney, 8 Cowan, 591; Bennett v. Dilling- ham, 2 Dana, 430; Phillips v. H^ssell, 10 Humph. 197; Durr v- Bowyer, 2 McCord Ch. 368.] 2nd. A covenant by a widow on * her second marriage to f * 380] • convey property for the benefit of her children by a former viarriage, if entered into in pursuance of an agreement between her and her intended husband, will be enforced at the suit of those chil- dren: Gale V. Gale, 6 Ch. D. 144. See also Neicstead v. Searles, 1 Atk. 205; West. Ch. 287; It hell y. Beane, 1 Yes. 215; Chapman v. Emery, Cowp. 278, 280; Clarke \. Wright, H. & N. 849: 4 Cruise's Dig. p. 443, 4th ed. Sed vide Price v. Jenkins, 4Ch. D. 483; S. C. reversed on another point, 5 Ch. D. 019. Whether the case of children by a former wife provided for by a husband on his second marriage comes within the same consideration has been doubted. See Dart. V. & P. 5th ed. 894; and Price v. Jenkins, 4 Ch. D. 483, in which case the question arose whether the interest taken by the son was void against a subsequent jnirchaser under 27 Eliz. c. 4. 3rd. It seems that where A. as trustee for B. has contracted with D. for valuable consideration moving from B. to D. to receive a sum of money from D. in trust for B., the latter can proceed against D. on a contract in A.'s name upon the usual indemnity to him, or even in his own name. See Touche v. Metropolitan Railway Warehous- ing Co., G L. 11. Ch. App. 071, 077. See also Hook v. Kinnear, 3 389 *331 ELLISON t'. ELLISON. Swanst. 417 n. And see and consider' Re Emxtress Engineering Co., 29 AV. R. 342. 4th. AVhere a contract has been entered into between two parties, under which the status of a third person not a party to the contract may be altered, it may give him a right to enforce it. As for in- stance if A. agreed with B. that in consideration of his allowing his son D. to live with him, he would maintain, educate, and leave him certain property; if then the agreement were acted upon, so as to have altered the status of D., and that by the act of A. the latter might have been precluded from disputing with D. his liability to l^erform his part of the agreement, that being a new equity though arising out of the agreement: See Hill v. Gomme, 5 My & C. 250, 255; S. C. 1 Beav. 540; in which case, however, it was held that as the contract had been abandoned by the CQntracting parties, so that the status of the child had not been altered, it could not be enforced by the child. See also Lyons v. Blenkin, Jac. 245. 5th. When persons who are within the consideration of the mar- riage take only on terms which admit to a participation with others who would not otherwise be within the consideration, then, not the matrimonial consideration, but the consideration of the mutual con- tract extends to and comprehends them: Mackie v. Hcrbertson, 9 App. Cas. 303. • But although collaterals may not be able to enforce the [ * 331 ] trusts * of a marriage settlement when executory, the trus- tees of a fund in the case of an eocectded trust cannot part with the fund as against such collaterals, tbough volunteers at the instance of the husband and wife, and although all other trusts may have fafled. See Paul v. Paul, 19 Ch. D. 47, 48. There, by mar- riage settlement, money in the funds was settled upon the husband and wife successively for life, afterwards upon the children of the marriage, and if there were no children, then if the wife should die in the lifetime of her husband as she should by will appoint,'and in default of appointment in trust for the neoct of kin exclusive of the husband, but if the husband should die in the lifetime of his wife, then in default of children for her absolutely. There were no chil- dren of the marriage, and it was admitted that there was no possibility of there being any. Upon the application of the wife, and with the approbation of the husband, that the corpus of the trust funds should be applied in payment of the debts of the wife, it was held by Fry, J., and afterwards by the Court of Appeal (20 Ch. D. 742), revers- ing the decision of Malins, V.-C. (reported 15 Ch. D. 580), that althovigh the next of kin were mere volunteers, and not within the marriage consideration, the trusts in their favour could not be re- voked. See also Heatley v. Thomas, 15 Ves. 590; WolJaston v. Tribe, 9 L. R. Eq. 44. And it is clear that if a trust is completely declared the Court will enforce it on behalf of a volunteer though not a party to the deed creating the trust: In re Flavell, Murray v. Flavell, 25 Ch. D. 89, 102. 390 ELLISON' V. LLLISOX. * 332 Where, however, a party to the agreement or covenant, bein^ a person from whom a consideration moves, applies to tlio Court to carry it into effect, the Court,which will not ordinarily decree a partial performance, will carry it into effect in its entirety, oven in favour of volunteers. Thus, in Darenjjort v. Biskopj), 2 Y. & C. C. C. 451 ; in a maiTJago settlement which comprised only the property of the wife, it was agreed between the intended husband and wife, and each of them covenanted with the trustees, that any property to which the wife might become entitled during the coverture, should be conveyed to such uses as she should by deed or will appoint, and in default of appointment, to the use of herself for life, remainder to the use of her husband for life, remainder to the use of th(< wife's children, and in default of such children to theit.se of Iter neice Mary . Lucas and her heirs. After the death of the wife without issue and without having exercised her power of appointment, the hus-* band tiled a bill against her heir-at-law praying that some real estate to which she had become entitled * during her [ *332 J life-time, might be conveyed to his iises of the settlement. It was conteniled on behalf of the heirs-at-lawof the wife, that as the neice, Mary Lucas, was merely a volunteer, the decree for spe- citic performance should be confined to the life estate of the hus- band, and not extended to the heirs of Mary Lucas, who was then dead. It was held,' however, by Knight-Bruce, V.-C, that the covenant in the marriage settlement ought to be earned out in toto, and that, therefore, not only the limitation to the husband for life, bat also the ultimate limitation to Mary Lucas (though a stranger to the settlement), and her heirs, must take effect. "The surviving trustee of the settlement, or his representative," said his Honor, "may be thought to be a trustee of the covenant both of the hus- band and of the heirs of Mary Lucas. If, without giving the hus- band, to the extent of his life interest, the benefit of the covenant in this suit, I were to allow the covenant to be made the suliject of an action, or of actions, I conceive the damages recoverable would be upon an estimate of the value of his interest and theirs also. Could it be right to give him relief in equity, by way of specific performance, as to his life interest, which I think the Conn bound to do, and leave an action or actions to be brought as to the inter- est only of Miss Lucas' heirs ? It seems to me not. These con- siderations, however, which appear to deserve attention, are not all. I apprehend that if two parties, in contemplation of a marriage intended, and afterwards had between them, or for any other con- sideration between themselves, coming under the descrijition of "yaZita^fe," have entered into a contract together, in which one of the stipulations made by them is a stipulation solely and merely for the benefit of a third person, that third person being even a stranger in blood to each, a stranger to the contract, and a person from whom not any valuable or meritorious consideration moves, or has moved, or is to move, it cannot, generally speaking, be compe- 391 * 333 ELLISON V. ELLISO-V. tent to one party to the contract, or to those representing that party in estate, to say to the other party to the contract, 'whatever may be your wishes, whether you assent, or dissent, that stipulation shall go for nothing, or shall not have effect given to it." The two parties to the contract having made the stipulation with each other, mutual assent must generally be requisite to dissolve that which by mutual assent was created. With the question between them the gratuitous- ness of the provision towards the stranger, as far as the stranger is concerned, seems generally to have little or nothing to do. In the present case the settlement was the joint act of the hus- [ * 333 ] band and wife. '•'' The covenant is between themselves as well as with the trustees: and not only does it not ap- pear that either he or she ever dissented from the full performance of the covenant, or objected to it, but the husband's bill in the cause, and the argument of his counsel at the bar, demand its unrestricted fulfilment." On appeal that decision was affirmed by Lord Lynd- hurst, L. C. See S. C, 1 Ph. 698. [The wife's equity to a settle- ment is believed to exist in all of the United States except New Hampshire and North Carolina, it has also been recognized in the Federal courts: Andrew i?. Jones, 10 Ala. 401; Barron v. Barron, 24 Vt. 375; Chase v. Palmer, 25 Me. 342; Ward v. Amory, 1 Cur- tis, 432; Gardner v. Hooper, 3 Gray, 398; Wiles v. Wiles, 3 Md. 1; Wilks V. Fitzpatrick, 1 Humph. 54; James u.'Gibbs, P. & H. 277; Lassiter y. Dawsou, 2 Dev. E(]. 383; Bees v. Waters, 9 Watts, 94; Lay V. Brown, 13 B, Mon. 295.] Effect of Bonds, and covenants for payment of money to volun- teers]. — Where a voluntary instrument, although effecting no trans- fer of property, creates a valid legal obligation, equity will give effect to it. Thus, where a person executes a bond (Hall v. Palmer, 3 Hare, 532), or even a promissory note (i)a?-t;son v. .K'earfoji, 3 Sm. & Giff. 186; Arthur v. Clarkson, 35 Beav. 458, in favour of a volun- teer, he may prove the debt against the assets of the debtor; but it will be postponed in equity to debts by simple contract: Rams- den V. Jackson, 1 Atk. 294. And see Watson v. Parker, 6 Beav, 283; Dening v. Ware, 22 Beav. 184; Hales v. Cox, 32 Beav. 118. A voluntary bond, however, has been preferred to interest upon debts not by law carrying interest payable under the 46th order of August, 1841; (Consol. Ord. xlii., 10) Garrard v. Loi^d Dinorben, 5 Hare, 213;) and also to legacies, even those that are specific : Patch V. Shore, 2 Dr. & Sm. 589. And where it was doubtful whether a bond were voluntary or for valuable consideration, an issue has been directed: Hejnvorth v. Heslop, 6 Hare, 561. [A court of equity will not relieve against a bond on the mere ground that it is without consideration yet, on the other hand, it will not interfere with its special remedies such as to aid a defective conveyance of land, or decree specific performance of a covenant to convey, where there was no consideration in fact: Leake on Contracts, 147, 392 ELLISON V. ELLISON. * 334 008, 609; Koffor v. Grayson, 70 Va. 519; DownH v. Porter, 5-4 Texas, 59; Northern Kunsas Town Co. v. Oswald, 18 Kansas, 330.] But an assignee for value of an equitable interest in money pay- able under a voluntary bond has been beld entitled to rank as a specialty creditor for value against these assets of the obligor: Payne v. Mortimer, 4 Do G. k Jo. 447; 1 Gilf. 118. Where a person without consideration covenants to j>ay a sum of money, if the covenant is complete, and the Court is not called upon to do any act to make it perfect, it will give efl'ect to a trust de- clared upon the covenant. Thus, in Cloiujh v. Lambert, 10 Sim. 174, where a person, by a voluntary ileed, for himself, his heirs, executors, and administrators, covenanted to pay an annuity to trustees, upon trust for his wife for her life. Sir Lancelot Shad- well, V.-C, was of opinion that the covenant might be enforced by the wife against the executors of her husband, though not as against his creditors, and that the mere intervention of a trustee made no diflPerence. And in the event of the trustees refusing or declining to sue on the covenant, equity will assist the cestui quo trust, by enabling bim to use the names of his trustees and the deed at law: Fletcher \. v. Fletcher, 4 Hare, 07. And where thei'e is no reason * for trying the case at law, the decree in equity ought to [ * 334 ] be for the payment of the money due upon the admission of the assets of the covenantor: Fletcher v. Llefcher, 4 Hare 07. See also Williamson v. Codringfon, 1 Ves. 511; Watson v. Parker, 6 Beav. 283; Lomas v. Wright, 2 My. & K. 709; Alexander \. Brame, 19 Beav. 430; Holes v. Cox, 32 Beav. 118; Bon field v. Has- sell, lb. 217; and the observations, of Sir Johii Romilly, M. R., in Bridge v. Bridge, 10 Beav. 321. And where a person has entered into a covenant for further as- surance in a volunta^-y settlement the court will, in a suit to ad- minister the assets of the settlor, enfcirce the covenant against them without recourse to a court of law, because all the covenantee re- quii'ed was damages, and those damages the Court of Chancery could in such a case estimate and give better than a court of law: Cox V. Barnard, 8 Hare, 310; see however Hervey v. Audland, 14 Sim. 531; Ward v. Audland, 10 M. & W. 802; Aulton v. Atkins, 18 C. B. 249; Patch v. Share, 2 Dr. & Sm. 589; 11 W. R. (V. C. K.) 142. Voluntary deeds, when void against subsequent purcliasers.l — A voluntary conveyance of real estate, whether freehold, copyhold, or leasehold, unless it be in favonr oi a chanty { Attorney-General \. The Corporation of Newcastle, 5 Beav. 307, 12 C. ct F. 402; Doe d. Tunstill V. Bottriell, 5 B. & Ad. 131), and not merely conveyances executed with express intent to defraud (Burrel's Case, Rep, 72; Goocli's Case, 5 16. 00; Standenw. Bullock, Moore, 005, 015; Bridgm. 23), will, under 27 Eliz. c. 4, bo held fraudulent and void, as against 393 * 335 ELLISON V ELLISON. subsequent purchasers, legal and equitable (Burton v. Vanheythuy- sen, 11 Hare, 126), for a valuable consideration from the settlor, in- cluding mortgagees, both legal [Dophin v. Ayhvard, 4 L. li. Ho. Lo. 486; Chapman v. Eviery, Cowp. 280; White \. Hussey, Free. Ch. 13; Lister v. Turner, 5 Hare, 281; Lloyd v. Attwood, 3 De G. & Jo. 614); equitable (Lloyd v. Attwood, 3 De G. & Jo. 614), and by deposit of title deeds (Ede v. Knoivles, 2 Y. & C. C. C. 172; Lister V. Turner, 5 Hare, 281), sed vide contra at law (Kerrison v. Dorrien, 9 Bing. 76; Holford v. Holford, 1 Ch. Ca. 216), and les- sees (Doe d. LeiCis v. Hopkins, 9 East, 70, cited; Goodright v. ilfoses, 2 Wm. Black, 1022), except lessees without fine or rent (Upton v. Basset, Cro. Eliz. 444) also against a grantee in consideration of the release of a right (Hill v. Bishop of Exeter, 2 Taunt. 69), and parties taking under settlements for valuable consideration (Wat- kins V. Steevens, Nels. 160; Doe v. Lewis, 11 C. B. 1035), whether they were rhade in consideration of an intended marriage, [ * 335 ] (Douglasse v. TFaad, 1 Ch. Ca. 79), ^ or being post-nuptial, in consideration of ante -nuptial articles Kirk v. Clark, Free. Ch. 275), or of some consideration such as an additional portion: Broivny. Jones, 1 Atk. 190. [Deeds which are made upon " good" consideration only, are considered as merely voluntary and are frequently set aside in avor of creditors and bond fide pur- chasers, 2 Bl. Com. 297. In each of the States there is in practical use but one form of deed, requiring, if between strangers a valuable consideration: Ford 17. Ellingwood, 3 Met. (Ky.) 359; Blackerby i?. Holton, 5 Dana, 520; Schnell v. Nell, 17 Ind. 29; Kirkpatrick v. Taylor, 43 111. 207; Coggeshall v. Coggeshall, 2 Strob. 51.] A purchase will be valid under 27 Eliz. c 4, even ivith notice of a voluntary settlement, though it is founded on a meritorious consider- ation as being a fair provision for a wife and children ; and the set- tlor will not be restrained from selling the settled estates ; but, if the trust is complete, the volunteers will be entitled to the execu- tion of it until the sale. See Pulvertoft v. Pulvertoft, 18 Ves. 84, 91, 93 ; Buckle v. Mitchell, 18 Ves. 100; Metcalfe v. Pulvertoft, 1 V. &B. 180; Willatts v. Busby, 5 Beav. 193; StackjMolev. StackjDoole, .4 D. & W. 320; Clarke v. Wright, 6 H. & N. 849. And as this title is complete against all except purchasers for value, they can set aside prior voidable conveyances : Dickinson v. Burrell, 35 Beav. 257; 1 L. K Eq. 337. A mortgage executed without agreement and without knowledge of the mortgagee to secure sums antecedently lent without any agreement for security, is voluntary, and is fraudulent under 27 Eliz. c. 4 against a subsequent bona fide mortgagee : Cracknall v. Janson, 11 Ch. D. 1. A voluntary conveyance, however, will be defeated by a convey- ance or settlement for value to the extent only necessary to give effect to the conveyance or settlement for value : Croker v: Martin, 394 ELLISON V. ELLISON. * 330 I Bligh, N. S., 573; 1 D. & C. 15. See also Dolphin v. Aylward, 4 L. K. Ho. Lo. 480. But it cannot bo defoatod by a subsequent judgment creditor, avLo is not a purchaser and who can only have resort against such inter- est, if any, as remained in the settlor by virtue of, or unatfected by, the voluntary settlement : lb. See also JSeacan v. Lord Oxford, De G. Mac. & G. 507. The husband of a volunteer cannot be treated on his marriage as a purchaser under the statute ( Collins v. Burton, 5 Jur. N. S. 952), reversed on other points {lb. 1113 ; 4 De G. & J. 012; Doe v. Leicis; II C. B. 1039). Nor is a person claiming under a postnuptial set- tlement, unless it were made in pursuance of articles entered into before marriage (Martin v. Seamore, 1 Ch. Ca. 170), and also pro- vided that these articles are of a binding character : Doe v. lioice, 4 Bing. N. C. 737. And see Trowell v. Shenton, 8 Ch. D. 318. A bona lido settlement, although voluntary, cannot be defeated by the conveyance for value of the heir or devisee of the settlor. See Leicis v. Rees, 3 K. & J. 132; Parker v. Carter, 4 Hare, 409; Doe v. Lewis, 11 C. B. 1035; Doe d. Newman v. Knsham, 17 Q. B. 721; overruling Jones, Lessee of Moffett, v. Whittaker, Longfield * & Townsend's Ir. Exch. Rep. 141. [ * 330 ] But where the sale is effected by a mortgagee under a power contained in a mortgage deed prior in date to the voluntary settlement, it will not have the same effect as a sale by the voluntary settlor himself, and the volunteer has been held entitled to the pro- ceeds of the sale after the deduction of what was due to the mort- gagee : In re Walhampton Estate, 26 Ch. D. 391. A deed, apparently voluntary, may be supported by collateral evi- dence, showing it to be a contract for value : Pott v. Todhunter, 2 Coll. 76. And see Ford v. Stuart, 15 Beav. 493; Harman v. Rich- ards, 10 Hare, 81 ; Kelson v. Kelson, 10 Hare, 385; Toirnend v. To- ker, 1 L. R. Ch. App. 446; Gale v. Williamson, 8 M. & W. 405; Mullins V. Guilfoyle, 2 L. R. Ir. 95. [Parol evidence is admissible to show the real consideration of a deed or contract i lioiagh different from that expressed: Holmes' Appeal, 79 Pa. St. 2(9: Hebbard v. Haugbian, 70 N. Y. 54; Burnham v. Dorr, 72 Me. 198; Eaton v. Eaton, 35 N. J. L. 290.J And the onus of proving some valuable consideration falls upon the person sustaining the deed : Kelson v. Kelson, 10 Hare, 388; 17 Jur. 129. A conveyance, moreover, which may in its creation, being volun- tary, bo fraudulent and void as against a purchaser, may yet become valid by matter ex post facto as Avhen the volunteer has before the subsequent sale conveyed the settled property in consideration of marriage, or for other valuable ponsideration : I'rodgers v. Langham, Sid. 133; Smartle v. Williams, S Lev. 387; Neu-jJorVs Case, Skinn. 428; Kirk v. t7a?-A-, Prec. Ch. 275; Broicn v. Carter, 5 Yes. 863; Parr v. Eliason, 1 East, 95; George v. Milbanke, 9 Yes. 190, 192; 395 * 337 ELLISON V. ELLISON. Payne v. Mortimer, 1 GifF. 118; 4 De G, & Jo. 447; Meggison v. Foster, 2 Y. & C, C. C. 336; Guardian Assurance Company v. Vis- count Avonmore, 6 I. R. Eq. 391. The settlor himself cannot come into a Court of equity to enforce the specific performance of a contract for the sale of the estate en- tered into by him after the settlement (Smith v. Garland, 2 Mer. 123; Johnson v. Legard, T. & E. 294; Clarke v. Willott, 7 L. R. Exch. 313); except as against a purchaser willing to complete upon a good title being shown (Peter \. Nicolls, 11 L. R. Eq. 391); and where a purchaser has paid a deposit on the purchase money, he can, on refusing to accept the title, sue for the deposit : Clarke v. Willott, 7 L. R. Exch. 313. A purchaser, however, from the settlor can enforce specific per- formance of the contract : Currie v. Nind, 1 My. & C. 17 ; Baking V. Whimper, 2(3 Beav. 568; Rosher v. Williams, 20 L. R. Eq. 210; Trowell v. Shenton, 8 Ch. D. 318. A subsequent purchaser can recover the land against volunteers by action as he formerly could by ejectment (Doe v. James, 16 East, 212), and he may also do so to complete his purchase or [ * 337 ] mortgage and set aside the * voluntary deed, and to such action the volunteer would be a proper party (Toicnend V. Toker, 1 L. R. Ch. App. 446). A purchaser or mortgagee, how- ever, has been refused relief in a suit instituted by himself and the settlor as co-plaintiffs : Bill v. Cureton, 2 My. & K. 503. It has, moreover, never been held that a purchaser for value could take proceedings in equity to have a voluntary deed delivered up to be cancelled : per Lord Romilly, M.R., in De Hoghton v. Money, 1 L. R Eq. 159. A volunteer in his defence to proceedings taken against him by an alleged purchaser for value may show inadequacy of consider- ation as amounting to evidence that it was not a bona fide convey- ance, but colourable to get rid of the settlement: Doe v. James, 16 East, 213. The declarations, moreover, of the mortgagor having parted with his interest by the settlement, are not admissible after his death to prove payment of the mortgage money against parties claiming under the settlement; Doe v. Webber, 1 Aid. & Ell. 733; and see Lalor v. Lalor, 4 L. R. Ir. 351; lb. 678. Where a voluntary settlement of land is avoided by a subsequent sale by the settlor for valuable consideration, the volunteers have no equity against the purchase-money payable to the settlor (Pul- vertoft V. Pulvertoft, 16 Ves. 84^ Daking v. Whimper, 26 Beav. 568; Toicnend v. Toker, 1 L. R. Ch. App. 446, 460; overruling Leach v. Dene, 1 L. R. Ch. App. 461, n. ) ; nor are they entitled to it when the voluntary settlement has been revoked by the settlor under a power therein contained: Evelyn v. Templar, 2 Bro. C. C. 148. With regard to Avhat will be considered a voluntary settlement may be mentioned, a conveyance in trust to sell and pay creditors not parties or privy to the deed ( Wallivyn v. Coutts, 3 Mer. 707, 396 KLLISOX V. ELLISON. * 008 and cases cited ante, p. 303). A post nujAial ficAtlement upon wife, hnsband, or family [Evelyn v. Templar, 2 Bro. C. C. 148; Doe v. Rae, G Sco. 525; Cuirrie v. Nind, 1 My. & Cr. 17; Doe v. Bottriell, 5 B. & Ad. 1'31), iiuloss it bo made in pursuanceof a bindinj^ ante- nuptial agreement {Griffin v. Stanhope, Cro. Jac. 454; Randall v. Morgan, 12 Ves. 74; Ex parte Hall, 1 V. & B. 112; Jiatfershee v. Farrimjton, 1 Swanst, KKJ), will be voluntary. And it will also be so if made in pursuance of a mere parol agreement (Sjinrrjeon v. Collier, 1 Ed 55; or if in the case of an agreement in writing, en- tered into by an infant before marriage, a setth^ment executed sub- sequently, after he came of age, cannot be considered as a ratifica- tion of the agreement, by reason of there being noreforence therein to the agreeinont, and the property being settled in a different way: Trowellw. Shenfon, S Ch. D. 318. *A postnuptial settlement, however, between a husband [ * 338 ] and wife, is for value if there is a bargain that either one or the other should give up something. [Marriage is a valuable consideration, therefore executory agreement, made in contempla- tion of marriage, will be enforced if the marriage actually takes place: Gough v. Crane, 3 Md. Ch. 119; Crane v. Gough, 4 Md. 316; Duval V. Getting, Gill, 38; Hale v. Lamb, 2 Ed. 271.] And it has been settled that if husband and wife, each of them having interests, no matter how much, or of what degree, or of what quality, come to an agreement which is afterwards embodied in a settlement, that is a bargain between husband and wife which is not a transaction without valuable consideration, andconsequently is not void against a subsequent purchaser or mortgagee. HeeBallv. Burn ford, Free. Ch. 113: Clerk v. Nettleship, 2 Lev. 148; Broicn v. Jones, 1 Atk. 190; Stileman v. Ashdown, 2 Atk. 479; Ramsden v. Hijlfon, 2 Ves. 8<)8; Parker v. Carter, 4 Hare, 409; Harman\. Richards. 10 Hare, 81; Carter V. Hind. 22 L. T. 116; 4 Hare, 400, 409; Whithread v. Smith. 3 De G. Mac. & G. 727, 740; Hewison v. Negus, 16 Beav. 600; 17 Jur. 567; Turnley v. Hooper, 3 Sm. & G. 349; Atkinson V. Smith, 3 De G. & Jo. 186; Teasdale v. Braithu-aite,-i Ch. D. 85; 5 Ch. D. 630. And see In re Foster and Lister, 6 Ch. D. 87; Lipich v. Lynch, 2 L. R. Ir. 501: disapproving of Butterfield v. Heath, 15 Beav. 408; and commenting on In re Goodright d. Humphreys v. Moses, 2 "Wm, Black, 1019; Cume v. Ni7id, 1 Mv. & Cr. 17. When the concurrence both of the husband and wife is necessary to a postnuptial settlement, the consent of each to the alteration made thereby constitutes a valuable consideration; Parker v. Car- eer, 4 Hare, 400, 409; In re Foster and Lister, 6 Ch. D. 89. But this is not the case where the husband joins in a settlement of property of which the wife is the sole and absolute owner, as being settled to her separate use: Shurmur v. Sedgwick, 24 Ch. D. 597. [The tendency in the United States is to sustain and carry into effect an executory trust in favor of a wife or child founded upon a 397 * 339 ELLISON V. ELLISON. meritorious consi deration if the instrument is under seal: Perry on Trusts, Sec. 109; Mclntyre v. Hufrhes, 4 Bibb, 186; Brijrht v. Bright, 8 B. Mon. 194; Thompson v. Thompson, 2 How. (Miss.) 737; Harris v. Haines, G Md. 435.] The concurrence also of a tenant in tail in remainder, in disen- tailing an estate, would, it seems, be ample consideration for a set- tlement thereof, even as against a purchaser: Mijddleton v. Lord KeMyon, 2 Ves. Jun. 391; Doe v. Rolfe, 8 Ad. & Ell. 650; Tarleton V. Liddell, 17 Q. B. 390. A mere voluntary deed of settlement of the husband's property on the separation of husband and wife, would not be binding as against his creditors (Fitzer v. Fitzer, 2 Atk. 511; Clough v. Lam- bert, 10 Sim. 174), or against subsequent purchasers or mortgagees (Coivx V. Foster, 1 J. & H. 30) of the husband. A covenant, however, by the trustees to indemnify the husband against the wife's debts (Stephens v. Olive, 2 Bro. C. C. 90; Wor- rall V. Jacob, 3 Mer, 256), or a relinquishment of her claim to ali- mony (Hobbs V. Hull, 1 Cox, 445), and perhaps a [ * 339 ] ^compromise of a suit {Jodrell v. t/odreZZ, 9 Bea v. 45; Wilson V. Wilson, 1 Ho. Lo. Ca. 538), would constitute a Valuable consideration as against creditors, purchasers, or mort- gagees. A settlement, moreover, founded upon a compromise of doubtful rights would be considered as executed for value. See Stapilton v. Stapilton, 1 Atk. 2; vol. ii., post: Heap v. Tonge, 9 Hare, 90; Harman v. Richards, 10 Hare, 81; Stone v. Godfrey, 5 De G. Mac. & G.76. The Courts, moreover, considering the law under the statute 27 Eliz. c. 4, by which a person can indirectly get rid of a settlement, to be unsatisfactory, have held that a small and inadequate con- sideration is sufficient to support such a settlement. The result, in effect, of the authorities appears to be that if upon the occasion of executing that which is called a voluntary settle- ment — that is, a deed which is not induced by marriage or any marriage considerations, or the actual sale of property, if between a father and son, husband and wife, parent and child, in any way whatever — an instrument is executed which ordinarily is called a voluntary settlement, and it turns out that, instead of being purely voluntary, any consideration whatever was paid or given, or any benefit rendered to the grantor, the Court will anxiously lay hold of any circumstances constituting a consideration moving from the grantee to the grantor to take a case out of the category of volun- tary settlements: per il/aZms, V.-C, 20 L. R. Eq. 218. Thus, a covenant by the grantee of an estate to indemnify the grantor from a mortgage, except the payment of interest during her life ( Toicn- end V. Toker, 1 L. R. Ch. App. 446); a covenant by the grantee of farming property to pay all the debts " in connection with the farm," although there were other debts (In re Johnson, 20 Ch. D. 389); a provision by a stranger for payment of the settlor's debts 398 i;llison v. ELLISON, *340 (Forclv. Stuart, 15Beav. 498), or eve q an advaacc* by a stranger upon the security of a promissory note to pay the interest of a mort- gage on the estate put into settlement then in arrear, and other debts of ttie settlor {Bayspoole v, Collins, L. 11. Ch. App. 228); an agreement acted upon by the grantee in consideration of the settlement to remove to a larger house, and take the grantcjr to live with him, thereby incurring considerable expense ( Tounu-nd v. Toker, 1 L. 11. Ch. App. 440; and see J Joe v. James, IG East, 212); have been held to render a settlement otherwise voluntary one for valuable consideration. See also Thompson v. Welistcr, 4 Do G. & J. 600; Ford v. Stuart, Ih Jieav. 498; Roe v. Mitton, 2 ANils. 35G. It has been recently held that * a settlement of a lease- [ *340 ] hold property is not a voluntary conveyance under 27 Eliz. c. 4, upon the ground that the assignment of leasehold property to which liability is attached is in itself a conveyance for valuable con- sideration: Price V. Jenkins, 5 Ch. D. 619; Anon., cited 5 Ch. D. 620; Ex jyarte Doble, 2Q W. R. 407; and consider Eosher \. Wil- liams, 20 L. R. Eq. 210. The case, however, of Price v. Jenkins, 5 Ch. D. 619, although de- cided under 27 Eliz. c. 4, has been held not to be applical)le to cases' under 13 Eliz. c. 5 {In re Ridler, Ridler v. Ridler, 22 Ch. D. 74) ; and although it has not been expressly reversed, its authority has been shaken by the observations of Sir G. Jessel, M. R., in Ex j)arte Hill- man, 10 Ch. D. 22. It has, moreover, been held that a voluntary conveyance of free- holds cannot be converted into a conveyance for valuable considera- tion by an assignment of leaseholds in the same deed: In re Marsh and Earl Granville, 24 Ch. D. 11, 25, 26; Gardiner v. Gardiner, 12 I. C. L. R. 565; Lee v. Matthews, 6 L.R. Ir. 580; Hamilton v. Mol- loy, 5 L. R. Ir. 339. A mere covenant, however, by the grantee in a deed conveying the whole real estate of the grantor, and otherwise voluntary, that the grantee would under certain circumstances build a house on part of the estate conveyed within a limited time, but without any shifting clause or provision for defeasance in case of non-performance of the covenant, will raise no consideration affecting the voluntary character of the settlement: Rosher \. Williams, 20 L. II. Eq. 210. Marriage itself is a sufficient consideration for an antenuptial settlement, upon the husband, wife, and issue of the marriage: Nairne v. Proxvse, 6 Ves. 752; O'Gormon v. Comyn, 2 S. & L. 147; Broicn v. Jones, 1 Atk. 190; Ex parte McBurnie, 1 De G. Mac. & G. 441. [Perry on Trusts, Sec. 10<.] But the marriage consider- ation will not extend to limitations to collaterals so as to support them agaiast a subsequent sale to a bona fide purchaser (Sutton v. Cheficynd, 3 Mer. 249; Heap v. Tonge, d Hare, 104; Jetikius \. Keinisfi, B.{ird. 395; White v. Stringer, 2 Lev. 105; Osgood v. Strode, 2 P. Wms. 245; Ball v. Burnford, Prec. Ch. 113; Reeies v. Reeves, 399 * 3-il ELLISON -y. ELLISON. 9 Mad. 132; Hart v. Middlehurst, 3 Atk. 371; Johnson v. Legard. 3 Madd. 283; Cottrell v. Homer, 13 Sim. 506; Stacpoole v. Stacpoole, 2 C. & L. 489; Kekewich v. Manning, 1 De G. Mac. & G. 176; Massy v. Travers, 10 Ir. C. L. 459; Re Cullhi's Estate, 14 Ir. Ch. 506; Smith v. Cherrill, 4 L. R. Eq. 390); uoless, as we shall here- after see, there is some other consideration, irrespec- [*341 ] live of the marriage, imported to support * them: Fordw Stuart, 15 Beav. 493—499. "Whore the settlement on the marriage of hnsband and wife is made by the assistance of a third party, a limitation to collaterals will be for value. In the case, for instance, of a father tenant for life, with remainder to his son in tail, they may agree upon the marriage of the son to settle, not only upon his issue, but upon the brothers and uncles of that son, and the question would be, whether they, though not within the consideration of the marriage are not within the contract between the father and the son, both having a right to insist upon a provident provision for uncles, brothers, sis- ters, and other relatives, and to say to each other, "I will not agree unless you will settle": the Court has held such a claim not to be that of a mere volunteer, but as falling within the range of the 'consideration: per Lord Eldon, C, in Pulverfoft v. Pulvertoft, 18 Ves. 92. And limitations of a widow's estate in her marriage settlement, on a second marriage in favour of her children by a former mar- riage, will also be valid against purchasers, especially where there are reciprocal considerations, both on the part of the husband and wife, by provisions made for the issue of the second marriage: Neivstead v. Searlcs, 1 Atk. 265; and see Kingy. Cotton, 2 P. Wms. 674; Doe v. Lewis, 11 C. B. 1035; and the same considerations would apply to the issue of a second marriage or to collaterals (Jenkins v. Keijmis,Ijex. 150, 237; Osgood v. Strode, 2 P. "Wms. 256.) And the substitution, by the mother of the husband, of a security for an annuity on the whole of the estate- for a security on a part thereof, has been held a sufficient consideration for limitations in the son's marriage settlement in favour of his younger brothers: Roe V. Mitten, 2 Wils. 356; but see Doe v. Rotfe, *8 Ad. & Ell. 650; and observations by Lord St. Leonards, Sug. V. & P. 716, n., 14th ed. So limitations in favour of the issue male of a subsequent marriage, interposed between limitations in favour of sons and daughters of the marriage, have been held valid: Clayton v. Earl of Wilton, 3 Madd. 302^^ n. ; In re Sheridan's Estate, 1 L. R. Ir. 54. It may hero be mentioned that a deed apparently for valuable consideration, as in the case of a secret mortgage to secure a debt without the knowledge or any pressure on the part of the mortga- gee, and retained by the mortgagor for his own purposes, may be void under the statute against a subsequent mortgagee: Cracknall v. Janson, 11 Ch. D. 1; and see Lloyd v. Atticood, 3 De G. & Jo. 614; Perry Herrick \. Attwood, 25 Beav. 205; 2 De G. & Jo. 2L 400 ELLISON V. ELLISON. '• 343- For Forms of Decrees setting aside voluntary convey- ances under * 27 Eliz. c. 4, see 2 Setqn on Decrees, 1374, [ * 342 ] 4th ed. Chattels jjer soil aldo not come within the statute 27 Eliz. c. 4; a voluntary settlement, therefore, of chattels personal cannot be de- feated by a subsequent sale: Sloane v. Cadogan, 2 Sug. V. & P., App. XXIV. ed. 11; Hill v. Cureton, 2 My. & K. 502; Watson y. Parker^ 10 Jur. (N. S). 577; Jovcs v. Croiicher, 1 .S. <& S. 315. Voluntary deeds, when void against creditors,] — By the statute 13: Eliz. c. 5 (made perpetual by 29 Eliz. c. 5), a voluntary settlement of real orjyersonal estate, liable to be taken in execution,. mxII be* void, and may bo set aside by a creditor of the settlor upon his showing au intent on the part of the settlor to delay, hinder, or de- fraud creditors, 'with an exception in favour of conveyances made upon good consideration and l>onri fide to persons without notice of the intended fraud: Sect. C. [If the settlor has reserved to revoke the settlement, or to charge it with his debts he can do nothing to impair the rights of those in remainder: Beal i\ Warren, 2 Gray, 447; A.ubuchon v. Bender, 44 Mo. 560; Dean r. Adler, 30 Md. M7.] The statute, however, did not apply to things which could nut bo' taken in execution, such as stock (Dnndas v. Didens, 1 Yes. Jun. 190), a bond (Sims v. Thomas, 12 Ad. & Ell. 530), or any other chose in action [Norcidt v. Daddy Cr. & Ph. 100). Copyholds (Mattheics v. Feaver, 1 Cox, 278), unless from their particular ten- ure or special custom they were liable to debts {lb. 280): a volun- tary aasignment therefore of such things was valid against cred- itors. But Tinder the statute of 13 Eliz. c. 5, taken in connection with the Insolvent Debtors Act (7 Geo. 4, c. 57), such an assignment was void as against creditors (Norcidt v. Dodd, Cr. & Ph. 100, 102), because under the Insolvent Debtors Acts all the debtor's pro])erty became liable to his debts: Ih. 103. And the result was the same in connection with the assignor's death {lb. 102), because, after his death, his creditors might reach his personal property of whatever kind: lb. And now cash, banknotes, stock, and all such choses in action, by virtue of 1 & 2 Yict. c. 110, s. 12, may be taken in execution, and come within the statute 13 Eliz. c. 5: Barrackv. AVCulloch, 3 K. & J. 110; and see Stokoe v. Coican, 29 Beav. 037, where an assign ment of a policy on his life by a person in extremis was set aside as fraudulent against his creditors: Larc\. The Indisputable Life Policy Company, 1 K. & J. 223 ; Bobson v. M ' Greight, 25 Beav. 272. And property which cannot be taken in execution under 1 & 2 Vict. c. 110, is in bankruptcy brought within 13 Eliz. c. 5: 1 Sm. L. Ca. 38, 39, 8th ed. And copyholds also, which can now be taken in execution: lb. The intent to delay, hinder, *or defraud creditors may [ ^'343 ] 26 WHITE ON EQUITY. 401 * 343 ELLISON V. ELLISON. b(i actual and express (Spirett v. Willows, 3 Du G. Jo. & Sra. '293), or it may be inferred in different ways, as, for instance, by the creditor showing that the settlor was indebted to the extent of insolvency, or even that he was largely indebted at the time of making the settlement, and soon afterwards became insolvent: Fletcher v. Sedley, 2 Vern. 490, and note: Taylor v. Jones, 2 Atk. ()00; Townsend w.Westacott, 2 Beav. 340; Skarf \. Soulby, 1 Mac. & G. 364; Jenkyn v. Vaughan, 3 Drew. 419; Re Magmcley' s Trust, 5 De G. & Sm. 1; Holmes v. Penney, 3 K. & J. 90; Barton v. Van- heythuysen, 11 Hare, 126; French v. French, 6 De G. Mac. & G. 95; Clemments v. Eccles, 11 Ir. Eq. Rep. 229; Neale v. Day, 7 W. R. (V.-C. W.) 45; Christy v. Courtenay, 26 Beav. 140; Penhall v. Ehcin, 1 Sm. & GifP. 258; ^craman v. Corbett, 1 J. & H. 410; Elsey V. Cox, 26 Beav. 95; Thomjyson v. Webster, 4 Drew. 628; 4 De G. 6 Jo. 600; 7 Jur. (N. S.) Ho. Lo. 531; Murphy v. Abraham, lb Ir. Ch. Rep. 371; Graham v. 0'Keeffe,16 Ir. Ch. Rep. 1; Crossley \. Fhvorthy, 12 L. R. Eq. 158; Cornish v. Clark, 14 L. R. Eq. 184; Taylor v. Coenen, 1 Ch. D. 636. [It is the fraud alent intent which invalidates such a gift: Mosely v. Gainer, 10 Texas, 393; Poague?;. Boyce, 6 J. J. Marsh, 70; Haymaker's Appeal, 3 P. F. Smith, 306; Florence Sewing Machine Co. v. Ziegler, 58 Ala. 221; Root v. Rey- nolds, 32 Vt. 139. A conveyance in fraud of creditors is void only as against those who may be injured thereby: Sexton v. Wheaton, 1 Am. Lead. Cas. 45; Chappin v. Pease, 10 Conn. 69; Bouslough v. Bouslough, 18 P. F. Smith, 495; Burtch v. Elliott, 3 Ind. 99.] There may, however, be an exception to this rule, where a man is perfectly solvent one year and insolvent the next; as, for instance, where there has been some unexpected loss or something which could not have been reasonably reckoned upon when the settlement was executed: per Matins, V.-C, in Crossley v. Elworthy, 12 L. R. Eq. 167. Where, however, after deducting the property which was the sub- ject of the settlement, sufficient available assets were not left for pay- ment of the settlor's debts {Freeman v. Pope, 5 L. R. Ch. App. 538, 541), a fortiori, if by putting everything into settlement, the effect was to render the settlor absolutely insolvent, and to deprive him of the means of paying his debts (Smith v. CherriU, 4 L. R. Eq. 390, 396; Freeman v. Po2^e, 5 L. R. Ch. App. 538; 9 L. R. Eq. 206), the settlement will be void against creditors, because in such cases the intention to defeat, hinder or delay them within the meaning of the statute would necessarily be inferred. See the remaiks in the last two cases on Spirett v. Willoivs, 3 De G. Jo. & Sm. 293. The mere fact that the settlor owed some debts is not sufficient to render the deed void {Skarf v. Soulby, 1 Mac. & G. 364) ; nor is it necessary to prove that when he executed the deed he was in a state of absolute insolvency {Townsend v. Westacott, 2 Beav. 340; 4 Beav. 58). 402 ELLISO.V V. ELLISON. * 344 [A voluutary conveyance in good as against Bubsoqiniiit civditors unless made with the fraudulent intention of defeating their claims: Harlan v. Maglaughlin, 'J Norris, 297; Snyder v. Christ, 8 Wright, 499; Mattingly v. Nye, cS Wallace, 370; Salmon v. Bennett, 1 Conn. 525.] In the absence, moreovei-, of actual intent to defraud creditors, a voluntary settlement made by a * settlor in em- [ * 344 ] barrassed circumstances, but having property not included in the settlement ample for the payment of debts owing l)y him at the time of making it, may be supported against creditors, although debts due at the date of the settlement may to a considerable amount remain unpaid: Kent v. Rilej/, 14 L. R. Eq. 190. Where there is an actual intent to delay and hinder creditors, it is immaterial whether, when the settlement was executed, the settlor was indebted or not indebted; as, for instance, where a perscm settles all his present and futvire property ( Ware v. Gardner, 7 L. R. Eq. 317, 321; Spirett v. Willows, 3 De G. Jo. & Sm. 293; Taijlor v. Coenen, 1 Ch. D. 641j; and in the case of a trader engaged in trade it is immaterial that the settlement isof a tritiing amount compared with the extent of his business: Taylor v. Coenen, 1 Ch. D. 641. [Any person may make a gift which bears but an insignificant pro- portion to his estate, and if his remaining property is ample to dis- charge his debts, the transaction cannot be impeached: 2 Kent's Com. 441, and notes. The true rules appear to be "that if the donor has at the time, the pecuniary ability to withdraw the amount of his donation from his estate without the least hazard to his creditors, the gift will be valid:" Snell's Eq. 64.] There is a dictum of Lord Westbnry to the effect that, " if the debt of the creditor by whom the voluntary settlement is impeached ex- isted at the date of the settlement, and it is shown that the remedy of the creditor is defeated or delayed by the existence of the settle- ment, it is immaterial whether the debtor Avas or was not solvent after making the settlement:" Spirett v. Willoivs, 3 DeG. Jo. & Sm. 302. This dictum, however, has been disapproved of by Lord Hath- erley, C, as being expressed in probably too large terms: see, i-Vee- man v. Pope, 5 L. R. Ch. App. 543. Although at law it was held otherwise (Oswald v. Thompson, 2 Ex. 215; sed vide Graham v. Furber, 14 C. B. 410), inequity an assign- ment was void when made with the intent to hinder and deieai future creditors (Tarback v. Marbury, 2 Vern. 510; St. Amand v. Lady Jersey, 1 Com. 255; Hungerford v. Earle, 2 Vei*n. 201; Stilemanv. Ashdown, 2 Atk. 481; Ware\. Gardner, 7 L. R. Eq. 317), and where a voluntary deed is set aside under the statute, cveiWiovi^ subsequent and antecedent to the deed are let in together: Barton v. Vaiihey- thuysen, 11 Hare, 126; 133; Strong v. Stro))g, 18 Beav. 408. If there bo a creditor whose debt was incurred subsequently to the voluntary deed, and there is also at the time of filing the bill an un- paid creditor whose debt was incurred prior to the deed, the subse- 403 *3-l5 ELL SOX V. ELLISON. qaent creditor has exactly the same right to commence an action as the prior creditor has: Jenkyn v. Vaughan, 3 Drew. 419; Free- man V. Pope, 1) L. R. Eq. 206; 5 L. E. Ch. App. 588. But if a subsequent creditor files a bill, and it can be shown that the person who executed the deed, though indebted at the time he made it, has since paid every debt, it is very difficult to say that he executed the settlement with an intention to defeat or [ * 345 ] * delay creditors, since his subsequent payment shows that he had not such an intention: per Kindersley, V.-C, in Jenkyn v. Vaughan, 3 Drew. 425. A voluntary settlement moreover may be executed under such circumstances, as to make it void as against subsequent creditors, although all antecedent creditors may have been paid [Richardson V. Smallwood, Jac. 559; Holmes v, Penney, 3 K. & J. 90, 99), where, for instance, it has been executed in order to defeat the plaintifP in an action {Kidney \. Caussmaker. 12 Ves. 138; Barling v. Bishojoj), 29 Beav. 417); so where the settlor, being solvent at the time, but, having contracted a considerable debt, which would fall due in the course of a few weeks, made a voluntary settlement by which he with- drew a large portion of hisp>roperty from the payment of his debts, after which he collected his assets and (apparently in the most reck- less and profligate maner) spent them, thus depriving the expectant creditor of the means of being paid [Freeman v. Pope, 5 L. R. Ch, App. 538); so likewise where a man made a voluntary settlement in contemplation of his going into trade, especially if it be of a hazardous character [Mackay v. Douglas, 14 L. R. Eq. 106), or one about which he knew nothing [Ex parte Russell, 19 Ch. D. 588); and in such cases the o7ius would lie upon the settlor of showing that he was in a position to make a settlement [Mackay v. Douglas, 14 L. R. Eq. 106), if, indeed, it would not be void independently of the question whether he was solvent at the date thereof [Ex j^ctrte Russell, 19 Ch. D. 588). It is, however, always difficult to impeach successfully a deed as being fraudulent against future creditors if it is admitted there is no intention to defraud present creditors [Smith v. Tatto7i, 6 L. R. Ir. 32, 44). The statute is applicable where the debts were contracted by the person deceased from whom the settlor derived the property, hence a fraudulent conveyance may be made by an executor and by an heir of the property which they have taken in such characters re- spectively: Ajyharry v. Boddingham., Cro. El. 350; Goocli's Case, 5 Rep. 60; Richardson v. Horton, 7 Beav. 112. A voluntary deed executed, pendente lite, for the purpose of de- feating any process in the nature of execution, will be set aside in equity [Blenkinsopp v. Blenkinsopp, 12 Beav, 568, 1 De G. Mac. & G. 495), or where a man knows that a decision is about to be pro- nounced against him: Barling y. Bishop, 29 Beav. 417; Reese River [Silx:ier Mining Company v. Ativell, 7 L. R. Eq. 347. Secus it seems ■where a man makes such conveyance bona fide for the payment of 404 ELLISON V. KLLISON. * 34G some creditors, and not as a contrivance fur his own per- *sona] benefit, even although the deed should contain a [ *' 340 | stipulation that the debtor shouM remain in possession of tlie property for six mouths, but not so as to let in any execution or sequestration, and in case any such should be enforced his pos- session should cease: Alton v. HaiTison, 4 L. R. Ch. App. G22. An antemqitial settlement by a man indebted at the time, even although the wife is aware of it, will not render the settlement void as against creditors (Campioiiy. Cotton, 17 Yes. 203, 271; Ex parte McBurnie, 1 De G. Mac. & G. 441; Hardey v. Green, 12 Beav. J 82). But where the wife is aware that the settlement is in efiect a scheme to defeat creditors, as, for instance, where a man deeply embar- rassed marries a woman with whom he has previously cohabited, settling all his property upon her, she knowing the state of his affairs {Columbine v. Penhall, 1 Sm. & G. 228; Buhner v. Hunter, 8 L. R. Eq. 46), or that he has committed acts of bankruptcy {Fraser v. Thompson, 4 De G. & Jo. 059, reversing S. C. 1 Gitf. 49), the settlement will be void as against his creditors. It seems, however, that it must be clear that the wife was privy to the fraud of the husband: Ex j^arte Rutherford, 17 Ves. 2()9, cited; Mont. 293, cited; Ex ijarte Mayor, Mont. 292. An antenuptial settlement, so far as relates to limitations to collaterals, is in general voluntary (see ante, p. 340), and there- fore, within the statute of 13 Eliz. c. 5, void as against creditors. [The extent to which a man has the power to make a voluntary disposition of his property, is frequently called into qitestion in the cases of settlements made by a husband upon his wife. The gift must be reasonable and bear a just and fair proportion to the actual amount of his property: Wickes v. Clark, 8 Paige, 151; Mellon v. Mulvey, S C. E. Green, 198; Penna. Salt Manf. Co. V. Nell, 4 P. F. Smith, 9; Thompson v. Thompson, 1 Norris, 378; Morris v. Ziegler, 21 P. V. Smith, 450. A man cannot strip him- self of all, or the greater part of his. means for the purpose of making a gift to his wife.] See Smith v. Chen-ill, 4 L. R. Eq. 390, where a settlement made by a lady on her marriage was, so far as it was made in favour of collaterals, set aside to the extent of debts owing by her at the time of her marriage. A covenant moreover in a marriage settlement by a trader, though then solvent, to settle all his acquired property was held, independently of the 91st section of the Bankruptcy Act, 1869, to be void as against creditors: Ex parte Bolland, In re Clint, 17 L. R. Eq. 115. See also Higinbotliam v. Holme, 19 Yes. 88; Ijister v. Garland, 5 Sim. 205. Appointments, moreover, under an antenuptial settlement, where there appears to be an intent to defeat creditors, will be invalid {Acraman v. Corbett, 1 J. & H. 410); and the result is the same when the appointment is under a settlement made between a father and son: Bey f us v. Bullock, 7 L. R. Eq. 391. 405 -"•■ 347 ELLIriON V. ELLISON. A j^ostnuptial settlement by a settlor, if insolvent at the time, though in pursuance of a verbal contract before marriage, is void against his creditors [Worden v, Jones, 23 Beav. 487; 2 De G. & Jo. 76), overruling Barkworth \. Young, 4 Drew. 1; and [* 347 ] see Troivellw. Shenton, 8 Ch. D. 324; but * where there is some valuable consideration, such as the payment of the debts of the settlor, though he concealed one (Holmes v. Penney, 3 K. & J. 90, 99), or a loan to pay off other debts ( Thompson v. Webster, 4. Drew. 628; 4 De G. & Jo. 600; 7 Jur. N. S. (H. L ) 531), the settlement will not be void. A merely meritorious consideration, such as a debt for advances by a parent, barred by the Statute of Limitations, is not sufficient to support a postnuptial settlement against creditors: Pennhall V. Elwin 1 Sm. & G. 258. And where a man, though not indebted, by postnuptial settle- TYient, settles property in such a way that it shall go to others, rather than to his creditors, it will be fraudulent within the statute. See In re Pearson, Ex parte Stephens, 3 Ch. D. 807. "Where a man in 1858 not then engaged in trade, and who owed no debts, made a post-nuptial settlement of lOOOZ. in trust for life himself for deter- minable on bankruptcy, remainder to his wife for her separate estate for life, remainder in trust for the children of his marriage with an ultimate trust for himself. In 1873 he for the first time engaged in trade. In 1875 he was adjudicated bankrupt. It was held by Bacon, V. C, that the settlement was void in toto as against the trustee in bankruptcy. A mere deed of separation whereby the husband grants an an nuity to trustees for his wife's benefit has been held under the statute void against creditors: Clough v. Lambert, 10 Sim. 174; Frampton v. Frampton, 4l Beav. 287, 295; Coivx v. Foster, 1 J. & H. 30. But it seems that such deed would be valid if supported by valuable consideration such as a compromise of a suit, or covenant on the part of the trustees to indemnify the husband against the wife's debts (see ante, p. 338). A settlement apparently voluntary, may, however, be supported as against creditors by proof of consideration aliunde, as, for in- stance, that a son made a settlement on his children in considera- tion of a loan from his mother ( Thompson v. Webster, 4 Drew. 628; Wakefield v. Gibbon, 1 Gifif. 401; Gale v. Williamson, 8. M. & W. 405); the proof, however, of the consideration must be clear (&)^a- ham V. CKeefe, 16 Ir. Ch. 1); and in order to discourage the manu- facture of considerations, no costs in such cases will be allowed: Thompson v. Webster, 4 Drew. 628. A trust deed executed by a man who is insolvent for the benefit of all his creditors equally is not void within the statute 13 Eliz. c. 5: [No creditor is allowed to obtain a secret advantage over another and any agreements tending to produce such an advantage are 406 ELLISON t'. ELLISON. *348 fraudulent and will bo declared void: Louchoina Bros' Appeal, 17 P. F. Smith, 49; Dougherty v. Savage, 28 Conn. 140; Lawrence v. Clark, 36 N. Y. 158; Case v. Gerish, 15 Pick. 40; Mann v. Dar- lington, 3 Harris (Pa.), 310.] Evans v. Jones, 3 H. & C. 423; Janes V. Whitbread, 11 C. B. 406; Wolverl tampon, &c. Co. v. Marston, 7 H. & N. 148; Lee v. Green, 6 De G. Mac. & G. 155; Hick- man *v. Co.r, 18 C.B. 617; 3C.B. (N. S.)523; 8Ho. Lo. [ * 348 ] Ca. 268; 9 C. B. (N. S.) 47. A trust deed moreover, for such of the creditors as come in and execute the deed will be valid as to each creditor who assents (Harland v. Binks, 15 Q. B. 713); or if the assignment be made to a creditor and communicated to him, it will be valid as to him with- out his assent; Siggers v. Evans, 5 Ell. & Bl. 367. Where, however, in a trust deed there are provisions tending to defeat, delay, or hinder creditors, as, for instance, providing that tha trustees may carry on the business of the debtor as they think lit, irrespective of the wishes of the creditors, and that any creditor, before getting a dividend, must indemnify the trustees (Spencer v. Slater, 4 Q. B. D. 13 ) ; or if it authorises the creditors to carry on the business of the debtor upon such terms that the creditors would become partners in such business (Owen v. Body, 5 Ad. & Ell. 28); the deed will be invalid as against the creditors; secus, where the power to carry on the business is contined to the mere purpose of winding it up; Hickman v. Cox, 18 C. B. 617; 3 C. B. (N. S.); 523; 8 Ho. Ca. 268; 9 C. B. (N. S.) 47; Janes v. Whitbread, 11 C. B. 406; Coates v. Williams, 7 Exch. 205. As money or banknotes could not, previous to 1 & 2 Vict. c. 110, bo taken in execution, it seems that a purchase in the name of a wife or child would not, prior to the passing of that Act, be in- valid under 13 Eliz. c. 5 (Proctor v. M'arren, Sel. Ch. Ca. 78; Fletcher v. Sedley, 2 Vern. 490; Glaister v. Hewer, 8 Ves. 199; Dreiv V. Martin, 2 H. & M. 130). Since the passing of the previous Act such purchase has been de- cided to be invalid within the latter (Barton v. Vanheythuysen, 11 Hare, 126, 133). Gifts, moreover, in money or banknotes by a father to his children, the effect of which would be to defeat or delay his creditors, will now be invalid (French v. French, 6 DeG. Mac & G. 95; Sims v. Thomas, 12 Ad. & E. 536; Christy v. Conrte- nay, 13 Beav. 96); and in a recent case where a debtor, in a weak state of mind and body, distributed the whole of his property, con- sisting of chattels, money in the bank, and secured upon mortgage among his children, although this was partly in consideration of annuities for his life, partly by voluntary settlement, and partly by voluntary gifts, the transaction was held by Lord Rowilly. M. K. ; void as against creditors under 13 Eliz. c. 5, his Lordship being satisfied upon the evidence that the children vi'ere aware at the time that the creditors' claims would be defeated, though it did not ap- 407 * 349 ELLISON V. ELLISON. pear that the debtor had any such intention: Cornish v. [ *349 ] . Cla)% 14 L. R. Eq. 184. So an annuity or bond * given to secure an annuity for the wife of the settlor has been held void as against creditors under the statute [French v. French. 6 De G. Mac. & G. 95; Hue v. French, 26 L. J. Ch. 317); and in Neale v. Day, 4 Jur. (N. S. ) 1225, where D. assigned his business, goodwill, and office furniture to W., in consideration of cash and a bond given by W. to K. as trustee, for securing payment of an annuity of lOOZ, to H., the wife of D., for her separate use, and af- ter her death to D., with provisions for commuting at any time, it was held that the bond was fraudulent and void against cred- itors. See 2 Seton, Dec. 1370, Form 4, 4th ed. A creditor under a voluntary post-obit bond, is as much entitled to the benefit of the statute of 13 Eliz. c. 5, as any other creditor. ^Vhere, therefore, a testator, having executed a voluntary post-obit bond for securing an annuity of lOOZ. to his daughter-in-law for her life, afterwards made a voluntary settlement, from and after his de- cease, in favour of his widow and child, comprising all his property (except about 300Z. ), and before his death acquired only about lOOOZ. more, it was held by Sir G. M. Giffard, V.-C, that the settle- ment was void under the statute as against the bond creditor: Adames v. Hallett, 6 L. R. Eq. 468. A creditor, however, may by his concurrence with or acquiescence in a deed voidable under 13 Eliz. c. 5, preclude himself and his rep- resentatives from impeaching such deed (Olliver v. King, 8 De G. Mac. & G. 110), especially if he has been a party with the donees to instruments and transactions proceeding on the assumption of its validity: lb. And an inquiry may be directed whether any and which of the creditors of the settlor had acquiesced in a voluntary deed: Freeman v. Pox>e, 9 L. R. Eq. 212. It may be here mentioned that a purchaser from a volunteer under a deed void by the statute of 13 Eliz. c. 5, will be preferred to the general creditors of the settlor having no specific charge: George v. Milhanke, 9 Ves. 190. Any creditor may commence an action to set aside a settlement under 13 Eliz. c. 5, and it will not be affected by the subsequent in- solvency of the settlor (Goldsmith v. Russell, 5 De G. Mac. & G. 547), and it ought to be on behalf of all the creditors of the debtor: Reese Silver Mining Comiyany v. Aticell, 7 L. R. Eq. 347. [In Shulze's Appeal, 1 Barr, 251; Tomb's Appeal, 9 Barr, 61; and Fowler's Appeal, 6 Norris, 456, the proposition was set forth that proceedings to avoid a fraudulent transfer will enure to the benefit only of those who institute them — not to the advantage of other creditors.] On the bankruptcy of the settlor the trustees in his banki'uptcy are the proper parties to commence such action: Collins v. Burton, 4 De G. & Jo. 612; Goldsmith v. Russell, 5 De G. Mac. & G. 547; 408 ELLISON V. ELLISON. * 350 Butcher v. Harrison, 4 B. & Ad. 129; Doe v. Ball, 11 M. k W. 531. Where in an administration action a vfjluntary deed was held * void as against creditors, and the trustees paid [ * 350 ] the whole fund (which was the total amount of the as- Bets) into Court, it was held that the costs of the action were pay- able out of such part of the fund as was equal to the amount of the debts, and that the balance due to the trustees was ])ayable to them: In re Turner's Estate, \V. N. 10, August, 1884, p. 101. The cases as to the effect of delay on proceedings to sot aside on equitable grounds a deed which was good at law, do not apply where there is a legal right to have a deed set aside imder 13 Eliz. c. 5, as fraudulent against creditors: In re Maddever, Three Toicns Bank- ing Co. V. Maddecev, A\'. N., 1884, p. 178; 27 Ch. D. 523. It seems that in order to enable a creditor of a living debtor to set aside a fraudulent conveyance under the 13 Eliz. c. 5, it is not necessary that the creditor should have any lien or charging order on the property comprised in the conveyance, but in the absence of such lien, the Court will not apply the property in satisfaction of the creditor's claim: Reese Silver Mining Comx>any v. Ativell, 7 L. li. Eq. 347. [In America the fraudulent disposition of property by a debtor during his life may be impeached after his death by any of his creditors: Story's Eq. Juris. Sec. 375, 370.] If subsequently to the execution of a settlement of chattels fraudu- lent against creditors the settlor mortgages all his personal estate, upon the settlement being declared void, the chattels therein com- prised do not vest in the mortgagee, who can only come in as a general creditor: Barton v. Vanheythuysen, 11 Hare, 120; Lister v. Turner, 5 Hare, 281. The statute 13 Eliz. c. 5, s. 3, enacts that every party to a fraudu- lent conveyance " shall incur the penalty and forfeiture of one year's value of the said land," " and the whole of the value of the said goods," and " also being thereof lawfially convicted, shall sufler imprisonment for one half-year without bail or mainprise;" and with respect to this enactment, it has been held that a defendant may refuse to answer interrogatories which would render him liable thereunder: Wich v. Parker, 22 Beav. 59. In the recent case, however, of Bunn v. Bunn, 4De G. Jo. & Sm. 310, where the defendants objected to make the usual affidavit as to documents, on the ground that the discovery would expose them to pains and penalties under 13 Eliz. c. 5, the Lords Justices of the Court of Appeal, affirming the decision of Sir John Stuart, Y.-C, held that the discovery must be made. There is a similar clause in 27 Eliz. c. 4. See sect. 3. Where a settlor has assigned property with the view of defeating his creditors, he may, upon abandoning such an intention with a view of carrying out an arrangement with his creditors, recover such property from the assignee who has given no considera- 409 *352 ELLISON V. ELLISON. [* 351] tion for it: Sy^nes v. * Hughes, 9 L. K. Eq, 475, 479; and seo Taylor v. Boivers, 1 Q. B. D. 291. See and consider Inre Great Berlin Steamboat Co., 20 Ch. D. 616. As to the general constraction of 13 Eliz. c. 5, see Twyne's Case, 3 Rep. 80 ; 1 Smith's Leading Cases, 1 and note. [This statute was passed to protect the rights of subsequent purchasers.] The Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), contains clauses more stringent in some respects as against voluntary settlements of property than the statute of 13 Eliz. c. 5 ; sect. 47 (1 ) enacts that '•Any settlement of property not being a settlement made before and in consideration of marriage, or made in favour of a Y^urchaser or incumbrancer in good faith and for valuable consideration, or a settlement made on or for the wife or children of the settlor or pro- perty which has accrued to the settlor after marriage in right of his wife, shall, if the settlor becomes bankrupt within two years after the date of the settlement, be void as against the trustee in the bankruptcy, and shall, if the settlor becomes bankrupt at any sub- sequent time within ten years after the date of the settlement, be void as against the trustee in bankruptcy, unless the parties claim- ing under the settlement can prove that the settlor was at the time of making the settlement able to pay all his debts without the aid of the property comprised in the settlement, and that the interest of the settlor in such property had passed to the trustee of such settlement on the execution thereof." (2) "Any covenant or con- tract made in consideration of marriage, for the future settlement on or for the settlor's wife or children, of any money or property, where- in he had not at the date of his marriage any estate or interest, whether vested or contingent, in possession or remainder, and not being money or property of or in right of his wife, shall, on his be- coming bankrupt before the property or money has been actually transferred or paid pursuant to the contract or covenant, be void against the trustee in the bankruptcy." (4) " 'Settlement ' shall for the purposes of this section include any conveyance or transfer of property." This section is somewhat similar to section 126 of the Bankruptcy Act, 1849 (12 & 13 Vict. c. 106), repealed by the Bankruptcy Repeal Act, 1869 (32 & 33 Vict. c. 38, sees. 2—20), and to sect. 91 of the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), except that the latter section was restricted to cases in which the settlor was a trader, and the words "And that the interest of the settlor in such property had passed to the trustee of the settlement on the execution thereof " are now introduced for the first time, not having been in that section. See Yate Lee and Wace on Bankruptcy, p. 414, [ * 352 ] 2nd ed., where * the cases on these sections are col- lected. It was held that the 91st section of the Bankruptcy Act, 1869, applied to settlements executed before, as well as after, the Act came into operation: Ex parte Daivson, Re Daicson, 19 L. R. Eq. 433. 410 ELLISON V. ELLISON. * 353 And that the word "purchaser" meant a "buyer" in the ordinary commercial sense, not a purchaser in the lej^al sense of tbo word. Therefore, the trustee of a postnuptial settlement of leaseholds fur the benefit of the settlor's wife and childr(;n is not a purchaser of the property for valuable consideraticni within the meaning of sect. 91. See Ex j^urte HilLman, In re Buniifrey^ 10 Ch. D. 022. As to what amounts to ability to pay debts, Bee Ex parte Ittissell, Re Butterworth, ID Ch. D. 588. "Where a person made voluntary settlement of a mortgaged estate, covenanting with the trustees of the settlement to ])ay the interest and principal, ho was considered under the Dlst section of the Bank- ruptcy Act, 1809, to have settled not merely the equity of redemp- tion, but the whole property; and it was held that if his assets without the aid of such property were insufficient toj>ay the mort- gage debt as well as his other debts, the settlement, although made more than two years before the bankruptcy of the settlor, was void: Ex xjarte Huxtable. In re Conibeer, 2 Ch. D. 54. The sub-s. 2 of section 47 of the Bankruptcy Act, 1883, does not apply to a covenant for the payment of a sum of money not specifi- cally ear-marked. Thus, where a trader by his marriage settlement covenanted that he would pay OOOOZ. to the trustees on or before a given day, to be held by them on the trusts of the settlement, it was held by the Court of Appeal, affii'ming the decision of Bacon, Y.-C, that the trustees were entitled to prove against the estate of the settlor (who had gone into liquidation) for the sum of GOOO?., less the value of the settlor's life interest which they were entitled to retain: Ex parte Bishop, In re T&nnies, 8 L. E. Ch. App. 718. As to fraudulent preferences, see note to Ilarman v. Fishar, Tud. Lead. Cas. on Merc. & Mar. Law, p. 781, 3rd ed. Non-interference of equity against bonti fide voluntary instru- ment.] — A voluntary settlement, though void as against creditors, subsists for all other purposes. Suppose, for instance, a man by a voluntary deed, void as against his creditors, conveys real estate for the benefit of his wife and children, and afterwards becomes bank- rupt, any surplus of the estate so settled will be bound by the trusts of the settlement: Ex parte Bell, 1 G. & J. 282 ; French v. French, * Do G. M. & G. 95. See Seton, Dec, [ * 353 ] 1370, Form 3, 4th ed. So in Smith v. CherriU, 4 L. R. Eq. 390, a hidy being indebted to the plaintiff at the time of her marriage in the sum of 350/., set- tled all her real and personal property, (with the exception of jewels and furniture, exceeding in vahie the amount of her debt,) upon faihire of issue of the marriage, in favour of certain collateral rela- tives, including a niece whom she had adopted as her daughter. The lady survived her hiisband, and died without issue, leaving no assets. It was held by Sir R. Malins, V.-C, first that the consider- ation of marriage not extending to collaterals, the ulterior limita- 411 * 354* ELLISON V. ELLISON. tions to them upon the authority of Johnson v. Legard, 3 Madd. 283; and Cotterell v. Homer, 13 Sim. 506, were voluntary. Sec- ondly, that so far only as the sum of 350/. was concerned, the settle- ment was void, and ought to be set aside, and the debt being a charge upon her property, ought, if necessary, to be raised with in- terest. A Court of equity will not set aside a voluntary deed or agree- ment not obtained by fraud, by mistake, or against public policy, even if it be such as, according to the principles before laid down, it will not carry into effect. Equity stands neutral, and invariably follows the rule thus quaintly laid down in an old case, " that if a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, a Court of Equity will not loose the fetters he hath put upon himself, but he must lie down under his own folly : " Villers v. Beaumont, 1 Vern. 101 ; Bill V. Cureton. 2 My. & K. 503; Petre v. Espinasse, 2 My. & K. 496; Page v. Home, 9 Beav. 570; 11 Beav. 227; McDonnell V. Hesilrige, 16 Beav. 346; De Houghton v. Money, 1 L. B. Eq. 154; 35 Beav. 98; 2 L. K. Ch. 164. And the rule is the same whether the interference of equity is in- voked by the settlor himself, or through the medium of a person, not a purchaser for value, claiming only through the settlor : Dol- phin V. Aylward, 6 L. R. Ho. Lo. 486. As we have before seen, a deed for valuable consideration not carrying out the intention of the parties may be so modified and rectified as to carry them out. (See note to Lord Glenorchyv. Bos- ville, ante, p. 51.) But in the case of a voluntary executory gift this is impossible. The instrument is either good or bad ; it cannot be modified to suit former intentions, unless the donor consent to make a new and distinct instrument : Phillipso^i v. Kerry, 32 Beav. 628, 638. Secus it seems, if the trust be executed {Thompson v. Whit- more, 1 J. & H. 268); James v. Couchman, 29 Ch. D. 212; or if it be shown clearly after the settlor's death that the [ * 354 ] * instrument was not prepared as he intended : Lister v. Hodgson, 4 L. R. Eq. 30, 34. A person who receives a gift takes it subject to the conditions im- posed by the donor. (Seale v. Hayne, 12 W. R. (V.-C. S.) 239.) And also subject to any mortgage of the subject-matter thereof by the donor, and he will not be able to call upon the personal repre- sentative of the donor to indemnify him therefrom, although the latter may have covenanted to pay the mortgage debt: Oiven v. Braddell, 7 I. R. Eq. 358. [Doctrine of Voluntary Trusts Restated. — A man may transfer his property without valuable consideration in one of two ways, he may either do such acts as amounts in law to a conveyance or assign- ment of the property and thus completely divest himself of the legal ownership ; or, the legal bwner of the property may, by one 412 ELLISON V. ELLISON. * 354 or other modes recognised as amounting lo a valid d(>claration of trust, constitute himself a trustee, without an actual transfer of the legal title, and may deal with the property as to deprive himself of its beneficial ownership. A voluntary supplement, if perfected, will be enforced by the court, yet if there is anything to be done in order to give effect to it the court will not interfere. Almost any consideration will be sufficient to induce the court not to treat the settlement as volun- tary. Whether the trust has been perfectly created or not, is, in each case, a question of fact, and the court in determining that question will give effect to the situation of the parties also the ob- ject the settlor had in making the settlement. The use of the words '" trust " and "trustee" will not necessarily create a trust, but the absence of them from the instrument is an item to be taken into account. It will bo remembered even at law, a voluntary instrument al- though executory in its character, will be supported as a gift of the money if it be under seal, because a seal will import a consideration. Blackstone, says " A true and proi:»er gift is always accompanied by delivery of possession and takes effect immediately. But if a gift does not take effect by delivery of immediate possession it is not then properly a gift, but a contract." The common law rule regarding the transfer of legal titles has been followed inequity as regards the transfer of equitable estates, and trusts that are purely voluntary must to be effectually created, be accompanied by the delivery of the subject of the trust, or by some act which so strongly indicates the donor's intention as to be tantamount to such delivery. An imperfect voluntary conveyance will not be enforced in equity. The settlement must take effect in the mode intended by the settlor. In order to render a voluntary gift or settlement valid, there must be what amounts to either (1), a complete transfer of the property beneficially, or in trust, or (2), a valid declaration of trust. 413 >56 MACKRETH V. SIMMONS. [ * 355 ] * MACKRETH ^. SYMMONS. May 13t7i, IWi, Nov. 2Uh, 1808. [eepokted 15 VES. 329.] Vendor's Lien foe unpaid Purchase -money.] — Vendor's lien for purchase-money, unpaid, against the vendee, volunteers, and pur- chasers with notice, or having equitable interests only, claiming under him, unless clearly relinquished, of which another security taken and relied on may be evidence, according to the circum- stances, the nature of the security, &c. : the proof being upon the purchaser; and, failing in 2oart upon the circumstances, another security being relied on may prevail as to the residue. As to marshalling the assets of the vendee by throiving the lien upon the estate, qucere. The bill stated, that, in the years 1783 and 1784, the plaintifP was indebted to John Manners in several sums, amounting in the whole to 13,500Z. ; for which sums John Martindale, as surety, joined the plaintiff in bonds. In 1790, Martindale, having upon a settlemeut of accounts with the plaintiff in 1785, taken credit for payment to Manners of 3000Z., undertook to discharge the remaining 10,500Z. ; and they settled an account accordingly. Other accounts were after- wards settled between them — the last in February, 1792; upon which a balance of 54,000Z. was due to Martindale, including 10,393Z. 17s., the value of annuities granted by the plaintiff; against which Martindale agreed to indemnify the plaintiff, in consideration of the plaintiff's agreeing to pay him the amount. A bond for 20,000Z. was given accordingly ; and a mortgage in fee was executed by the plaintiff to Martindale for the balance of 54,000Z. By indentures of lease and release, dated the 30th and [ * 356 ] * 31st of October, 1793, reciting an agi-eement by the plaintiff to sell the reversion of the mortgaged estates to Martindale, which was valued at 60,000Z., composed of the principal and interest due upon the mortgage, those estates were conveyed 414 MACIvRKTIl V. SYM.MONS. ■••' o5T to Henry Martindalo and his heirs, to tho uso of the plaintifT" for life, with remainder to John Martindale in fee. The bill farther stated, that John Martindale did not, accordiiKj to his undertaking, ji^V ^^^^ *""^ ^f 13,5(J(J/. to Manners, nor the value of the annuities ; which sums constituted part of tho consid- eration for his purchase of tho reversion of the estate. In Septem-' ber, 1797, a commission of bankruptcy issued against him, under which Manners' representatives proved the debt upon the bonds, and received dividends; the plaintiff being ol^liged to pay the re- mainder of the debt on account of those bonds, being 14,128Z. 3.s. 0(i., besides costs, and several sums on account of the annuities. John Martindale, before his bankruptcy, had contracted to exe- cute a mortgage to the' defendant of the reversion comprised in the indentures of 1793; and the plaintiff, claiming a lien upon the es- tate for the payments he had made in consequence of Marti ndale's failure to fulfil his engagements, gave notice to the assignees under the commission. In 1798, Symons obtained a decree, that the as- signees should execute a mortgage of the reversion to hira, expressly without prejudice to the plaintiff's claim; and afterwards filed a bill of foreclosure against the assignees, and obtained a decree; Mack- reth not being a party to that suit. The legal estate teas rested in Coutts, as a trustee, under a conveyance by Mackreth and Martin- dale in 1793, to secure annuities of 2000Z. The bill, filed by Mackreth, prayed a declaration, that the plain- tiff has a lien upon the reversion of the estates, sold to Martindale and mortgaged to Symmons, for the payments he had been obliged to make, and those sums which he may hereafter pay in respect of annuities, &c. The defendant Symmons, by his answer, denied that he had any notice, prior to his entering into the * agreement [ * 357 ] with Martindale, that the plaintiff had not received full consideration; and submitted that he had no lien. Sir Samuel Romilly and Mr. Wriottesley, for tho plaintiff. — The equitable lien of a vendor upon the estate sold for the purchase- money, as against the vendee, and even though a bond was taken, is established by a great number of cases, from Chapman v. Tanner (k), to Nairn v. Prowse {I). In Austen v. Halseij(m), your Lordship [k] 1 Vern. 207. il) 6 Yes. 7r)2. (m) 6 Ves. 475; see 483. 416 * 358 MACKRETII V. SYMMONS. considered it as clearly settled, except where xipon the contract evi. dently the lien by implication was not intended and the case of Hughes v. Kearney (n) is another direct authority; Lord Redesdale laying down, as a very clear rule, that in all cjises the vendor has the lien, and that it lies upon the purchaser to show a special agree- "ment excluding it; that case being decided upon that ground. It cannot be admitted, certainly, against a purchaser for a valuable consideration without notice; but this defendant has not that char- acter, having merely an equitable agreement for a security, not per- formed, when Martindale became a banki'upt, the plaintiff giving notice to the assignees, and the decree, obtained by the defendant Symmons, for a mortgage to him, expressing, that it was without prejudice to the claim of this plaintiff. Certainly, a former debt is sufficient to sustain a purchase as for a valuable consideration; but it is necessary that a party taking a conveyance for such a consider- ation should not have had notice of the claim when he took the con- veyance. There are but two periods to which the point of notice can apply: first, the time when the consideration was advanced; secondly, when the conveyance was executed; and, even where a consideration has actually passed, it is necessary to state, in pleading, that there was no notice at either period, otherwise the purchaser cannot pro- tect himself; Wigg v. Wigg (o). In this case it is essential that there should not have been notice at the later period, before which rotice is clearly established. The estate was never properly out of the hands of the plaintiff. He had not taken a security [ * 358] carved out by * himself, which might preclude the equit- able lien he once had, which therefore still remains. From the nature of this transaction, the consideration being a former debt no money actually passing, no such hardship can arise from enforc- ing the lien, as in the case of a purchaser for valuable consideration actually paid in that transaction who is affected by notice. If, however, this defendant is to be considered as a purchaser for valuable consideration without notice, so that the lien cannot prevail against him, the plaintiff is entitled to consider him only as a mort- gagee, having contracted with Martindale, as against whom the lien is good, for a mortgage. This plaintiff therefore, cannot be affected by the decree for a foreclosure obtained bv this defendant, who, hav- ing notice of the plaintiff's claim, did not make him a party. (n) 1 S. & L. 132. (o) 1 Atk. 382. 416 MACKRETII V. SYMMOXS. * ?,')^ Mr. Richards, Mr. Alexander, and Mr. William Agar, for Lbo de- fendant. — There is nothing in the circumstanceH of this case depriv- ing this defendant of the protection duo to a purchaser for vahiahhi consideration without notice, his transaction with Martindalo being perfectly fair; the vendor claiming a preference by way of lien for the purchase-money remaining unpaid, as an equitable charge, prior in time, though he took the security of Martindalo to that e.\tent Under such circumstances the lien has never been e8tal)lished; nor can the inference necessary to maintain it bo collected, either upon principle or authority. The general case of lien as between vendor and vendee, is admitted, where there is no special agreement, no security taken in respect of the purchase-money; but this equity has not been carried beyond that simple case of vendor and vendee. In the case of Chapman v. Tanner (p), there was a special agreement: the title-deeds were kept by the vendor, a deposit of the title-deeds of itself amounting to an equitable charge. Other cases, besides those which have been mentioned, in which this point arose, either directly or incidentally, are Bond v. Kent (q) — the case of a mortgage of the purchased estate for part of the money, and a note for a remainder; Pollexfen v. Moore (r) — a *very perplexed [ * 359 ] case, often cited; Fawellx. Hcelis (s); Blackburn v. Greg - son (t) — which is merely the opinion of Lord Loughborough, who desired to have the point further considered; Trimmer v. Bayne (u). The result of all of them is, that, where a security is given, there is no place for this equity, the purchaser certainly having to show that it does not exist. Hfere, a bond was given by Martindale: the secur- ity stipulated between the parties; and, therefore, the lien, sub stituted by equity, where there is no stipulation for a particular security, cannot be raised. Sir Samuel Romilly, in reply. — The plaintiff being called upon, and obliged to pay the debt, against which Martindale undertook to indemnify him, that undertaking forming the consideration of Martindale's purchase, he cannot, upon the ground of fraud, be per- mitted to retain the estate. The lien, therefore, is clear in respect of the 10,500Z. The distinction as to the annuities rests upon the (p) 1 Vern. 267. {q) 2 Vern. 281. (r) 3 Atk. 272. (s) Arab. 724, 1 Bvo. C. C. 422, n. 3rd ed.; 2 Dick. 485. {t) 1 Bro. C. C. 420. (w) 9 Ves. 209. 27 WHITE ON EQUITY. 417 *360 MACKRETH I). SUMMONS. single circumstance, that a security by a bond of indemnity was taken, which is confined to the annuities. If this plaintiff had filed a bill against Martindale while in possession, he would have been compelled to pay the annuities out of the purchased estate, and a receiver would have been appointed. No stronger instance of bad faith, no act more unconscientious, can be stated, than taking an estate in consideration of making payments, and, by a direct viola- tion of the contract, permitting those payments to fall upon the vendor. As to this defendant, if, from the passage, appearing in the report of Pollexfen v. Moore, it is supposed that the lien cannot be extended to a purchaser from the original vendee, it would be perfectly in- effectual ; but that proposition is contradicted by many authorities. In Walker v. Preswick (u) it is distinctly laid down, that the lien prevails against a purchaser, with notice. Upon what principal can such a distinction between this and any other equity be maintained? The point is expressly decided in the same way in Gibbons v. Bad- dall (v), viz., if A. sells an estate, taking a promissory note for part of the purchase-money, and then the purchaser sells to B., [ * 360 ] who has notice * that A. had not received all the money, the land is in equity chargeable with the money due on the note. The defendant cannot be represented as a purchaser without notice, merely as not having notice when he advanced his money. It is true, not then having this estate in contemplation, he could not have notice at that time; but, to sustain a purchase as for valuable consideration without notice, it is essential that there should not have been notice either when the money was advanced, or when the conveyance was executed. That doctrine has been always held from the earliest period, in More v. Mayhow (w), to the time of Lord Hardwicke, in W^igg v. Wigg (x); and the reason is, that some suspicion arises from not taking the legal estate, when the money is advanced. The defendant, having the means, by acquiring the legal estate, of placing himself in a situation, in which the want of notice would avail, merely took an agreement; and, having only an equitable title, cannot maintain the plea of purchaser for valuable consideration without notice. The doctrine that certainly prevails (u) 2 Ves. 622. {v) 2 Eq. Ca. Abr. 682, n. (w) 1 Ch. Ca. 34. (x) 1 Atk. 3rt2; Tourville v. Naish, 3 P. Wms. 307, where the notice "was before paj'tuent of the money. 418 MACKRETU U. SYMMONS. * IMII between mortgagees, that, the equities being equal, a snVjBcquent mortgagee, having got in the legal estate, may exclude a prior in- cumbrance, applies only where the money was advanced u[)on the credit of the estate ; not where the estate was not in contemplation, and other securities were looked to, which is the case of this de- fendant, when he advanced his money ; and upon that ground a judgment creditor, taking in a prior mortgage, cannot tack (jj). [The Lord Chancellor (Eldon). — With regard to the doctrine to which you are now alluding, is there any case where a third mort- gagee has excluded the second, if the first mortgagee, when he con- veyed to the third, knew of the second ? AN'hen the case of Manndrell V. Maundrell {z) was before me, I looked for, but could not find, such a case — that, where there was bad faith on the part of the first mortgagee, that equity was applied (a).] Sir Samuel Romilly, in reply. — I do not believe that was ever decided; and there Avonld be great difiicnlty it deciding it in favour of the third mortgagee, who puts * himself in [ * 301 ] I he place of the first. The result of the authorities, and of the circumstances to which they are to bo applied, is, that a part of the money, which was the consideration of the original purchase, remaining unpaid, the Court will raise the lien, and will enforce it against a second purchaser with notice; that universally the time of the conveyance, as well as the time of the advance, is material with regard to notice; and that this defendant clearly had notice before the conveyance. Lord Chancellor Eldon.— Upon the special circumstances of this case I shall postpone my judgment; I should be very unwilling to leave some of the doctrine, that has been brought into con- troversy, with as much doubt upon it, as would be the consequence of deferring the judgment without taking some notice of it. The settled doctrine, notwithstanding the case of Fan-ell v. Hee- lis (6), is, that unless there are circumstances such as we have been reasoning upon, ichere the vendor conreys, icUhout more, though the consideration is upon the face of the instilment expressed to be ]iaid, and by a receipt indorsed iipon the back, if it is the simple case of a ((/) Brace v. Duchess of Marlborough, 2 P. "Wnis. 491. (z) 10 Ves. 2-l(i. (n) See Peacock r. Burt, Coote, Mort. 693, where a lliird niortjrafree without notice, taking a -transfer from the first mortgagee \\ho had notice of the second v,-as wrt affected by it. {b) Amb. 7J4; 1 Bro. C. C. 422, n. 3rd edit: 2 Dick. 485. 419 *362 MACKKETII V. SYMMONS. conveyance, the money, or part of it, not being paid, as between the vendor and the vendee, and persons claiming as volunteers, upon the doctrine of this Court, ivhich, ivhenit is settled, has the effect of con- tract, though x>erhaps no actual contract has taken place, a lien shall prevail; in the one case, for the ichole consideration ; in the other, for that part of the money ivhich ivas not paid. I take that to have been the settled doctrine at the time of the decision of Blackburn V. Oregson (c), which case so far shook the authority of Fawell v. Heelis as to relieve me from any apprehension, that Lord BathxirsVs doctrine can be considered as affording the rule to be applied as between the vendor and vendee themselves, and persons claiming under them. There is a case. Smith v. Hibbard (d), reported nowhere but in Dickens, which seems to decide this point. There is also [ * 362 ] another case, beside those which have been * mentioned, showing the opinion of Lord Hardivicke, that the lien pre- vails: Harrison v. Soidhcote (e), the case of a Papist vendor, for whom, Lord Hardwicke says, the lien would not be raised, as that would be giving an interest in land to a Papist; the specialty of that proving, that the lien prevails in general cases. In the case of Elliot V. Edwards (/), Lord Alvanley was very strong upon it. There was a covenant for payment of the money upon the first purchase, and also an undertaking by a surety — strong circumstances to show, that, as between the vendor and vendee, there is no intention to rely upon the lien. The point was not decided in that case; but Lord Alvanley lays down the doctrine as I have stated it, that even in the hands of another person, with notice, the lien remains. In Gibbons V. Baddall (g), the lien was held to be clear against a second pur- chaser, with notice. There is a very old case in Gary (h), which I have heard cited as one of this class; but I have some doubt whether it is not a case of equitable interposition upon another ground. The circumstance leading me to that doubt is, that there was a lost bond; and the modern doctrine of dispensing with ]n-ofert (i), was not at that time known. The Lord Chancellor might, therefore, consider himself as having jurisdiction in that (c) 1 Bro. C. C. 420. (d) 2 Dick. 730. (p) 2 Ves. 389; see 393. (/) 3 B. & P. 181; see 183, (g) 2 Eq. Ca. Abr. 682, n. (h) Hearle v. Botelers, Gary, 35. (i) Profert dispensed with where a bond is lost; see 5 Ves. 238, n. 2nd edit. 420 MACKHETII V. SYMMON8. * 8(!3 case to direct payment of the money due upon that bond out of the estate. In Aiistin v. Halsey (j ), what I stated ui)on this subject was not said without much consideration. I had not ac that time, nor have I now, the least doubt that it is the doctrine. I have some doubt upon another point: takiuf^ the vendor to have the lien, whether the Court will, in case of the death of the vendee, marshal the assets, so as to throw the lien upon the purchased es- tate. It has often been said, and the case of Copjjin v. Coppin (k), stated as an authority, that the Court will not do that. IHie Lord Chancellor, in his judgment, takes no notice of that point. In that case the vendor happened to be the heir of the vendee, so that that the ep-tate was at home; and it was held, that, being also the execu- tor, he was entitled to retain the purchase-money out of the personal assets. That * decision requires a good deal of [ * 363 ] consideration. If the estate had been in a third person, the general doctrine, as to a person having two funds to resort to, might be thought to have an immediate application: and the ex- press terms of the decree in Pollexfen v. Moore (I) might be found very inconsistent with it. It is not, however, necessary to decide that point; as this is an equity, that in ordinary cases will effect a purchaser. Upon prin- ciple, without authority, I cannot doubt that it goes upon this, that a person having got the estate of another, sJiall not, as between them, keep it, and not pay the consideration ; and there is no doubt that a third person, having full knowledge that the other got the estate williout payment, cannot maintain, that though a Court of equity will not permit him to keep it, he may give it to another per- son without payment. It is not, however, necessary to discuss that upon general principles, as it has been repeatedly stated by authori- ties that ought, at this time, to bind upon that point. Another principle, as matter of general law, is involved in this case; what shall be sufficient to make a case in which the lien can be said not to exist. It has always struck me, considering this sub- ject, that it would have been better at once to have held that the lien should exist in no case, and the vendor should suffer the con- sequences of his want of caution; or to have laid down the rule the ( ;■ ) 6 Ves. 475. (it) 2 P. Wms. 291 ; Scl. Ca. Ch. 28. See, however. Trimiuor r. liayne, 9 Ves. 209; Spronle v. Trior, 8 Sim. 189; Selby v. Selby, 4 Kuss. 3:!(i: Wythe r. Hen nicker. 2 My. & K. 635. (Z) 3 Atk. 272. 421 * 364 MACKRETH V. SYMMONS. other way so distinctly, that a purchaser might be able to know, without the judgment of a court, in what cases it would, and in what it would not exist. Lord Bathiirst seems to have thought a note would j^ut an end to it. Other judges, of very high au- thority, dissented from that; as appears by the cases of Gibbons v. Baddall {m) and Hughes v. Kearney (n). It does not necessarily follow from a written contract, giving another remedy , that the lien was not intended to exist. It is very difficult, then, to distinguish the case where a note or bond is given for part of the money. In the case of Bond v. Kent (o) where the estate sold was mortgaged for part of the money, and a note taken for the rest, there [ * 364 ] was strong ^negative evidence, that the vendor was not intended to be a mortgagee for the rest. The case put by the Master of the Rolls, in Nairn \. Prowse (p) of a mortgage upon another estate, also aiforded strong, perhaps not quite conclusive, evidence against the lien, considering the value of the mortgaged estate — in general much more than the amount of the money. It does not, however, appear to me a violent conclusion, as between vendor and vendee, tnat, notwithstanding a mortgage, the l?en should subsist. The principle had been carried this length: that the lien exists, unless an intention, and a manifest intention, that it shall not exist ajjpears. This case remains to be considered upon its own circumstances with reference to the points I have stated. The questions are, first, supposing the lien would have existed as to the gross sum, the debt to Manners and the annuities, or their value, whether tlie circum- stances of silence as to the debt, and the indemnity taken against thft annuities, which is very important, amount in equity to evi- dence of a manifest intention to abandon the lien; if they do, an- other very considerable point is, whether, the lien having been abandoned, the plaintifP can set himself up as a mortgagee, claim- ing to redeem the defendant. If the lien is to be considered as not abandoned, the question will be, not whether a purchaser, with no- tice, would be afPected by the lien — which as general doctrine, I admit, — but whether, under the circumstances attending the con- tract with, and convevance to, this defendant, it shall prevail against (m) 2 Eo. Ca. Abr. 682, u. (n) 1 S. &L. 132. io) 2 Vern. 281. {p) 6 Ves. 752; see 760. ' 422 MACKRFTII V. SYMMONS. * 3G5 him. Upon the particular circumstances, tbo caso must stand for judgment, (js) Lord Chancellor Eldon, having stated the case very particu- larly, and observing that the legal estate in tbo premises was, before the assignees of Martindale executed the agreement for a mortgage to Symmons, vested, under a former conveyance by Mackretb, in a trustee to secure annuities granted by him, pronounced the follow- ing judgment. This case, when it was argued, and since, has appeared *to me to involveaquestionof very great importance, with [ *3G5] regard to which I am not able to find any rule which is satisfactory to my mind. If I had found, laid down in distinct and inflexible terms, that, where the vendor of an estate takes a security for the consideration, he has no lien, that would be satisfactory ; as, when a rule, so plain, is once communicated, the vendor, not taking an adequate security, loses the lien by his own fault. If, on the other hand, a rule has prevailed, as it seems to be, that it is to depend, not upon the circumstances of taking a security, but upon the nature of the security, as amounting to evidence, as it is some- times called, or to declaration plain, or manifest intention, the ex- pressions used upon other occasions, of a purpose to rely, not any longer upon the estate, but upon the personal credit of the indi- vidual, it is obvious'that a vendor, taking a security, unless by ev- idence, manifest intention, or declaration plain, he shows his pur- pose, cannot know the situation in which he stands, without the judgment of a court, how far that security does contain the evi- dence, manifest intention, or declaration plain, upon that point. That observation is justified by a review of the authorities: from which it is clear that different judges would have determined the same case differently; and, if some of the cases that have been de- termined had come before me, I should not have been satisfiex^l that the conclusion was right. This bill insists upon a lion in respect of these annuities; to be paid all that the plaintiff himself has paid: and either as to the original value, or the present vahie, or the future payments. I state that claim in these different terms, as, to determine what is the lien, it is necessary to point out the amount of it, and how it is to be calculated. Some doubt was thrown in the argument upon {p) Nov. 26tb, 1808. 423 *366 MACKRETU ^•. SYMMONS. the question of lien between the vendor and vendee; but it was not carried far; and it is too late to raise a doubt upon it: but it is in- sisted, that the lien does not prevail against third persons, even with notice of the situation of the vendor and vendee. It may be of use to state the cases upon this subject in the order of time. [ * 366 ] *The earliest case, not very applicable, is in Gary (p), and most of the Abridgements, which imperfectly collect the authorities upon this head. According to my own under- standing, that case is to be classed rather among those of relief in equity upon a security that has been lost, than under this head: but the fact of its existence is a circumstance of evidence that this doctrine has obtained in professional practice. There is no other case between that and Chajmian v. Tanner (q), which is very imper- fectly reported; and its authority is weakened by the observation in subsequent cases, that there was a special agreement that the vendor should keep the writings; and it is stated as a fact, that he had not taken any security. Taking it to be a decision in favour of the lien under those circumstances, the declaration of the Court, which was the natural equity, shows strongly how the law upon this subject was understood; and that case, therefore, has considerable weight. The doctrine is probably derived from the civil law as to goods, which goes further than our law, by which, though the right of stopping in transitu is founded upon natural justice and equity, yet if possession, either actual or constructive, was taken by the vendee, the lien is gone. That is not so by the civil law. The digest states states (r) : '*Quod vendidi non alitor fit accipientis quam si aut pretium nobis sclutum sit, aut satis eo nomine factum, vel etiam fidem habuerimus emptor! sine ulla satisfactione;" which points at this article of security; but with those excepted cases, the lien, according to the civil law, is so strong, that the goods may be taken out of the possession of the individual who had obtained actual or constructive possession of them. The next case is Bond v. Kent (s), the circumstances of which {})) HearletJ. Botelers, Gary, 35. Relief in equity upon a security lost. See 5 Ves. 238, n. (q) 1 Vern. 267. Vendor's lien probably derived from the Civil Law as to goods; which goes further than the law of England; by which the lien, giving the right to stop in transitu, is gone, where possession, actual or constructive, has been taken; the lien by civil law prevailing even against actual posses- sion. (r) Dig. lib. 18 tit. 1, 1. ll; Inst. lib. 2, tit. 2, § 41. («) 2 Vern. 281. 424 MACKIIETII V. SYMMONS. * 367 are special — a mortgage for part of the money, and a note for tbo residue. It was urged with considerable, perhaps not conclusive, weight, that the express charge of a part gave a ground for the in- ference, that a lien for the residue was not intended. The case, however, goes to prove, that, in equity, this li(;n was sup- posed to exist; * amounting to an admission, that, with- [ * 3G7 ] out those special circumstances, there would have been a lien. The next case is Coppin v. Coppin (t), where the doctrine of Pollexfen v. Moore (it), as to marshalling, was practically, though I doubt whether it ought to have been, admitted. I should men- tion Gibbons v. Baddall {v), where it is expressly stated, that the lien remained, though a note was given for part of the purchase- money; but I cannot ascertain the date of that decision. In Pollexfen v. Moore, Lord Hardwicke affirms the lien of the vendor upon the estate for the remainder of the purchase-money, considering the vendee from the time of the agreement a trustee as to the money for the vendor; but adds, that ''this equity will not extend to a third person." If that is to be understood, that this equity would not extend to a third person, who had notice that the money was not paid. Lord Hardwicke' s subsequent decisions contradict that : if the meaning is, that he would follow the case of Coppin v. Coppin, and that, if the vendor exhausted the personal assets, the legatee of the pur- chaser should not come upon the estate, there is great difficulty in applying the pi'inciplo ; as it would then be in the power of the vendor to administer the assets as he pleases, having a lien upon the real estate to exhaust the personal assets, and disapppoint all the creditors, who, if he had resorted to his lien, would have been satisfied; and in that respect, with reference to the principle, the case is anomalous. The next case in which the doctrine was admitted is Harrison v. Southcote (iv), followed by Walker v. Preswick (x); which case, it is remarkable, was not cited in Fawell v. Heelis (y): and in Bui'gess V. Wheat (z), Sir Thomas Clarke lays down the rule, Loth as to {t) 2 P. WnTs. 291. {u) n Atk. 272. (r) 2 Eq. Ca. Abr. (5S2, n. (iv) 2 Ves. :}89; see :WA. (x) 2 Ves. G22. {y) Amb, 724; 1 Bro. C. C. 422. n., ;^rd edit.; 2 Dick. 48r,. (z) 1 Black. 123; see 150. Lieu of vendee, haviug paid pi t-malurely analogous to that of vendor. 425 * 368 MACKRETH V. SYMMONS. vendor and vendee, thus: — "Where conve} ance is made prematurely^ before money paid, the money is considered as a lien on that estate in the hands of the vendee. So, where money was paid prematurely, the money would be considered as a lien on the estate in the hands of the vendor for the personal representative of the pur- [ * 368 ] chaser." Tardiffe v. * Scrughan (a) is very material upon this point, as it is represented (5) as a case in which the lien was held to attach upon the two moieties of the estate; but it has been also considered (c) a case, whether of lien upon the land or not, for contribution upon the circumstances between the sisters: giving the one sister a right to call upon the husband of the other to pay a moiety of the annuity. In another case, also, Powell v. , whether accurate or not I cannot trace Lord Camden de- termined in favour of the lien. In Faivell v. Heelis {d), Lord Bathursfs opinion certainly was, for reasons best stated in the case of Nairn v. Proivse (e) by Sir Samuel Romilly, that the bonds takep by the vendor furnished evi- dence, that credit was not given to the land ; and therefore there was no lien. In Beckett v. Cordley (/), Lord Thurloiv says, it was compared to a person selling an estate, and not receiving the money; and, therefore, there is a lien: asserting the general doctrine as familiar, but distinguishing that case upon the nature of the trans- action: younger children joining the eldest in a mortgage; discharg- ing the estate from their portions; and by their consent the whole money being paid to the eldest son: the lien being discharged by that transaction. In the argument of Blackburn v. Gregson (g), Lord Kenyon took the doctrine to be perfectly clear; and it is not possible to state a stronger judicial opinion than Lord Loughborough expressed, that the lien does exist, though it is not a decision. In Smith v. Hibberd (h), it was insisted that the delivery of possession, upon payment of a small part of the money, was evidence that he meant to trust to the personal security; but it was held clear, that the money contracted to be paid was a specific lien upon the premises. The {a) Cited Amb. 725; 1 Bro. C. C. 423. (6) 1 Bro. C. C. 423, in Blackburn v. Gregson. (c) Amb. 720, in Fawell r. Heelis. (d) Amb. 724; 1 Bro. C. C. 422, n. Srd edit.; 2 Dick. 485. (e) 6 Ves. 752. (/) 1 Bro. C. C. 353; see 358. (g) 1 Bro. C. C. 420. (h) 2 Dick. 730. 426 MACKRETII V. SYMMONS. * 3G9 contract for paj^ent of tbo money Ih itself, in a sense, a secarity full as good as a note. I do not state, as an authority, what appears upon this subject iu Austen v. Halseij (i), as it is a more dictum, and a dictum that fell from mo; but endeavouring to state this doctrine as accurately as I ccMld, I see I expressed it in * these words {k): "That the vendor has alien for the [* 309 ] purchase-money, while the estate is in the hands of the vendee. I except the case where upon the contract evidently that lien by implication was not intended to be reserved." In the case of ElUoit v. Edivards ( /), this is the doctrine of Lord Alvanley,a very experienced judge in equity, with reference to whom I may say, his judgments will be read and valued as pro- ducing great information and instruction to those who may practise in Courts of equity in future times. He there states, that, if a man having purchased an estate, conveys it before the purchase-money has been paid, a Court of equity will compel the person to whom the estate was conveyed to pay that money, provided he knew at the time he took the conveyance that it had not been paid. The next case in equity is Nairn v. Proivse (m), before the Master of the Rolls, in which it was contended that there was no li'en; the vendor had taken a security for the money, payable at a future time, and during the interval the vendee might have sold the stock. The Master of the Rolls, in his judgment, admitting the general doctrine as to the vendor's lien, observes upon the question, whether a security taken will be a waiver, that by conveying the estate with- out payment a degree of credit is given to the vendee, w^hich may be given upon the confidence of the existence of such lien; and it may be argued, that taking a note or a bond cannot materially vary the case; a credit is still given to him, and may be given from the same motive, not to supersede the lien, but for the purpose of ascertaining the debt, and countervailing the receipt indorsed upon the conveyance. There is great difficulty to conceive how it should have been reasoned, almost in any case, that the circumstance of taking a security was evidence that the lien was given up, as in most cases there is a contract under seal for payment of the money. The Master of the Rolls, having before observed that there mav be a security, which will have the eifect of a waiver, proceeds (i) (j VesT^Ts! " ^^ {k) 6 Ves. 483. (/) -AB. &P. 181; see 183. (m) 6 Ves. 752, 427 * 371 MACKRETH V. SYMMONS. [ * 370 ] to express his * opinion, that, if the security be totally dis- tinct and independent, it will then become a case of substi- tution for the lien, instead of a credit given on account of the lien; meaning that, not a security, but the nature of the security, may amount to satisfactory evidnce that a lien was not intended to be observed, and puts the case of a mortgage of another estate, or any other pledge, as evidence of an intention that the estate sold shall remain free and unencumbered. It must not, however, be understood that a mortgage taken is to be considered as a conclu- sive ground for the inference that a lien was not intended, as I could put many instances that a mortgage of another estate for the purchase-money would not be decisive evidence of an intention to give up the lien, though, in the ordinary case, a man has always greater security for his money upon a mortgage than value for his money upon a purchase; and the question must be, whether, under the circumstances of that particular case, attending to the worth of that very mortgage, the inference arises. In the instance of a pledge of stock, does it necessarily follow that the vendor, consulting the convenience of the purchaser by permitting him to have the chance of the benefit, therefore gives up the lien which he has ? Under all the circumstances of that case the judgment of the Master of the Rolls was satisfied that the conclusion did follow; but the doc- trine as to taking a mortgage, or a pledge, would be carried too far if it is understood, as applicable to all cases, that a man taking one pledge therefore necessarily gives up another; which must, I think, be laid down upon the circumstances of each case, rather than uni- versally. In the case Hughes v. Kearney (n) Lord Redesdale states the doctrine, and the proposition is, not merely that the vendor might have security, but that he relied upon it; and a note or bills are considered not as a security, but as a mode of payment. From all these authorities the inference is, first, that generally speaking, there is such a lien; secondly, that in those gen- [ * 371 ] eral cases in tvhich there would he the lien, as * between vendor and vendee, the vendor will have the lien against a third person, who had notice that the money was not iDaid. Those two points seem to be clearly settled. I do not hesitate to say, that, if I had found no authority that the lien would attach upon a third person, having notice, I should have had no difficulty in deciding that upon principle, as I cannot perceive the diflPerence between this (n) 1 S. & L. 132. 428 ma('Krf:tii v. symmoxs. * 372 species of lien and other equities, by which third persons, having notice, are bound. In the case of a conveyance to B., the money being paid by A., B. is a trustee; and C. taking from him, and hav- ing notice of the payment by A., would also be a trustee, and many other instances may be put. The more modern authorities upon this subject have brought it to this inconvenient state — that the question is not a dry question upon the fact, whether a security was taken, but it depends upon the cir- cumstances of each case whether the Court is to infer that the lion was intended to be reserved, or that credit was givdn, and exclusively given, to the person from whom the other security was taken (o). In this case, having, as other judges have had, to determine this question of intention upon circumstances, I may mistake the fair re. suit of the circumstances which I have endeavored to collect. I must say I have felt from the first, that there is, upon the part of the plain- tifi", that natural justice and equity, which excite a wish, that I could enforce a lien throughout; but, first, as to the annuities, I am per- suaded that, with reference to that part of the case involving the question of lien as to the consideration, or any part of it, or any sum of money, the quantum of which is to be estimated with reference to the present value, or the past or future payments, this is a case in which the plaintiff intended to rely entirely upon the personal security, the bond for 20,000Z. ; and that was the conception of Mar- tindale also; by whose default of payment, therefore, the estate is not now subject to the lien in respect of the consideration of the an- nuities, or of any allowance in respect of it (p). See how * it stands. In 1790, the plaintiff, as principal, and Martin- [ * 372] dale, as surety, being engaged in an obligation, which I understand to be a personal one, for these annuities, agree to change situations; Martindale to be the principal, and the plaintiff to be surety; in consideration of which the plaintiff agrees to give 9000Z. secured by a mortgage. It rests upon that until 1793, when the transaction takes this course: that Martindale shall be no longer a mortgagee, but owner of the reversion in fee, and, which is material, of the reversion expectant upon the plaintiff's life estate. The an- (o) Where a security is taken for unpaid purchase-money, the existence of the lien depends upon the question, whether it Avas intended to he reserved or whether credit was exclusively given to the person from whom the security was taken. (jo) As to the annuities, the plaintiff intended to rely entirely upon the personal security. 429 * 373 MACKRETII V. SYMMONS. nuities remain upon the old footing; that is, some payments were made, or arrears accrued, between 1792 and 1793, and payments were to arise from time to time. The value given to Martindale, in 1792, by the mortgage of 9000/., for taking the liability upon him- self, was a value which merely, by the lapse of time, between 1792 and 1793, must have varied. If the annuities had been paid there must have been a difference in the estimation; also de anno in an- num, the value was decreasing, not only as the annuities were wear- ing out, but also as the number of the annuitants were decreasing by death. It is -impossible, it is not natural, to suppose, that parties dealing for the consideration of annuities, and the purchase of a re- version, which might not take effect in possession until all the an- nuitants were dead, relied on that reversion as security, in addition to the indemnity by a bond for 20,000Z. ; in the original transaction the state being pledged for the sum of 9000Z., as if actually paid. Then, as to the lien, for what is it? Is it for the original sum? That it cannot in justice be. Is it for future payments — that, one sum being paid, it does not attach ? another sum not being paid it does attach? a chai'ge upon the reversion arising from time to time, accordingly as these payments are, or are not, made? And is that inference to be drawn where a conveyance was executed with- out the least notice of such an intention — a security taken, not of itself sufficient to exclude the purpose of such a lien? [*373] but the nature of the subject, connected * with the fact of that security taken, is decisive proof against such an intention; and it appears accordingly in the other cause, Sym- mons V. Rankin, that Mackreth and Martindale joined in the convey- ance to Coutts, to secure an annuity of 2000/., without the least refer- ence to such an intention. I admit, that the opinion of Lord Loughborough (o), that the case, before Lord Camden, (p) went upon the ground of lien, is an authority very considerably against my opinion; and I cannot say upon what the case did proceed, if not upon that ground; as the estate, given by the wife to her husband for his life, after her own death, if not affected by the lien, could not be bound to pay the annuity. If that case is accurately represented, Lord Camden'' s opinion seems to have been that the mere circumstance of an estate given in consideration of an annuity, with a bond, would not pre- (o) See Blackburn v. Greson, 1 Bro. C. C. 420. Ip) Tardiffe ?•. Scrughan, stated 1 Bro. C. C. 423. 430 MACKllKTII V. SYMMOXS. * 374 vent the lion attaching from time to time; and so, understanding it, I cannot bring my mind to the conclusion that it is an authority which ought to lead me to determine, that, with reference to these annuities, there is a lien, either for the original value, the present value, or the future payment, which may or may not become due. (j>) As to the other part of the case, I have considered long, whether the conclusion is just, that, not meaning to have a lien, as I think this party did not, with regard to the annuities, he should mean to have a lien as to the sum of money due to Manners. My individual opinion is that the intention was the same as to both; but, with re- gard to the latter, the cases authorize the lien ; unless it is destroyed by particular circumstances, which do not exist hei-e. That sum is precisely in the condition of a part of the consideration, not paid; and then the inference in equity, unless there are strong circum- stances, getting over it, is, that a lien was intended. This comes very near the doctrine of Sir Tliomas Clark (q), which is very sensible; that, where the conveyance, or the payment, has been made by surprise, there shall be a lien. This plaintiff understood at the time of the * conveyance, that this [ * 374 ] money was to be paid on his account to Manners; which is the same as if it was to have been paid to himself, and was not paid; and then the only question is, whether, as, from the special circumstances as to the value and nature of the annuities, I am to infer that a lien was not intended as to them, I must make the same inference with respect to this gross sum; as to which, if the an- nuities were not mixed with the transaction, the doctrine of equity is, that the lien would attach. As to that sum, my judgement is, that the plaintiff has a lien. It is contented, that there are other circumstances in this case; that the defendant, Symmons, has a conveyance of the estate with- out notice, or, rather, a contract; as he had notice at the time of the conveyance. It is not necessary to go into the doctrine as to the effect of notice at the time of the contract, or at the time of pay- ment of the money; though there is no doubt the defendant when he took his conveyance, had notice from the recitals in his title-deed of Mackreth's rights and Marti ndale's obligations, as vendor and vendee. Neither is it neccessary to go into the consideration of (p) Althoii. 1. And where the purchaser with the concurrence of the vendor mortgaged the estate for a sum which the vendor received in part payment of the purchase-money, taking ])ills, which were ultimately dishonoured, for the remainder: it was held, that the vendor had no lien on the purchase-money arising from a second scale, in pre- ference to the mortgagee. Good v. Pollard, 9 Price, 544; 10 Price, 109. Where the vendor, without receiving the purchase-money, exe- cutes a conveyance for the purpose of enabling the purchaser to execute a mortgage, ho will lose" his lien on the estate as against mortgagee: Smith v. Ei-ans, 28 Beav. 59. There will, in the absence of contract, be no lien upon land in favour of a legatee, who has conveyed it away pursuant to the di- rections of a will, as a condition precedent to the receipt of the legacy and which the executor (who had lost the assets of his tes- tator) did not pay. See Barker v. Barker, 10 L. R. Eq. 438. The vendor's lien is assignable even by parol (Dnjden v. Frost, 3 My. & Cr. 040): but the assignee will take it subject to any prior incumbrances created by the vendor: Lacey v. Ingle, 2 Ph. 413; Mangles v. Dixon, 1 Mac. & G. 437, 3 Ho. Lo. Ca. 702; Rayne v. Baker, 1 Gift'. 241; Peto v. Hammond, 29 Beav. 91. A bequest of money due upon a vendors lien is within the Mort- main Act (9 Geo. 2, c. 36), and therefoi-e void as savouring of realty: Harrison v. Harrison, 1 Russ. & My. 71. Upon the death of a vendor of an estate in fee intestate before the conveyance or payment of the purchase-money, his heir-at-law will be trustee for his legal personal representatives (Morgan v. Swansea Urban Sanitary Authority, 9 Ch. D. 582), but by reason of his havinf a lien on the property for hia purchase-money, and not beincr bound to convey until payment, ho has been held not to be a "6a re -trustee" within sect. 48 of the Land Transfer Act, 1875 (38 & 39 Vict. c. 87 s. 48), "so that upon his death intestate, the money still remaining unpaid, and the conveyance unexecuted, his legal personal representative could not convey the legal estate * under, the Act, but the legal estate being in the beir at- [ '"'■ 380 ] law who was an infant, the usiial vesting order was made: lb. In such cases, now, the legal personal re]iresentative of the heir, could convey under the Conveyancing and Law of Prop- erty Act, 1881, s. 30, repealing s. 48 of the Land Transfer Act, is'lb, in cases of deaths after the 3 1st of December, 1881. See also s. 4 of The Conveyancing and Law of Property Act, 1881. A judgment entered up against the vendor after a contract for sale, may, although execution cannot be levied upon it under the Judgment Act (18 & 19 Vict. c. 15), bo enforced against t4ie unpaid purchase money: Broicn v. Perrott, 4 Beav. 585. [It has been 443 *3S7 M'ACKRETII V. SYMMONS. held ia several of the eases that the vendor's lien will not prevail against judgment creditor's or against purchaser's under an execu- tion sale: Hall v. Jones, 21 Md. 439; Crawley v. Timberlake, 1 Ired. Eq. 346; Harper v. Williams, 1 Dev. & Bat. Eq. 32; Roberts V. Rose, 2 Humph. 145.] Marshalling for Lien. — In the principal case. Lord Eldon ex- . pressed some doubt, although it was not neccessary to decide the point, whether, on the death of the vendee, without having paid his purchase-money, a Court of equity would marshall his assets in favour of third parties, by allowing them, in case the vendor, having a lean on the real estate, should exhaust the personalty, to stand in his place on the real estate to the extent of his lien. In Coppin v. Coppin, Sel. Ch. Ca. 28, Lord King held, that the ordinary rule of marshalling would not apply to such a case; and in Pollexfen v. Moore, 3,Atk. 273, Lord Hardwicke said, "That this equity (i. e. the lien for unpaid purchase money) will not extend to a third per- son, but is conlined to the vendor and vendee." It has, however, been repeatedly decided, overruling Copinn v. Coppin, and the dictum of Pollexfen v. Moore, that the lien of a vender must be subjected to the ordinary rule of marbhalling as- sets, and that, consequently, when the purchased estate descended the estate and personal assets ought to, as against the heir, be mar- shalled in favour of simple contract creditors and legatees {Trim- mer V. Bayne, 9 Ves. 209; Sproule v. Prior, 8 Sim. 189); [The lien will exist in favor of a legatee whose legacy has been taken to pay for the purchase of an estate in the hands of the heir, in other words the personal estate will be marshalled: Iglehart v. Arminger, 1 Bland, 519; Cheesbrough v. Millard, 1 Johns. Ch. 412;] and where the purchased estate was devised, as against the devisees, in favour of simple contract creditors (Selby v. Selby, 4 Russ. 336; Emuss v. Smith; 2 De G. & Sm. 722), but not in favour of legatees {Wythe v. Henniker, 2 My. & Iv. 635; but see Birds y. Askey, 24 Beav. 618, 621; Lord Lilford v. Poivis Keck, 1 L. R. Eq. 347; Hensman v. Fryer, 2 L. R. Eq. 627; reversed, 3 L. R. Ch. App. 420; Gibbons V. Eyden, 7 L. R. Eq. 371; Dugdale v. Diigdale, 14 L. R. Eq. 234. But now, freehold and copyhold estates are, under the Act for payment of creditors by simple contract (3 & 4 Will. 4 c. 104), as- sets for the payment of debts by simple contract, in all cases com- iag within the operation of the statute, the doctrine of marshalling . in favour of simple contract creditors, is inapplicable, and [ * 387 ] such * debts will be satisfied when necessary out of those estates. As to the doctrine of marshalling generally, see note to Aldrich v. Cooper, vol. 2. Estate in the hands of Third Parties when Bound by the Vendor's Lien.] — The equitable lien for unpaid purchase -money will, as is 444 MACKRETir V. SYM-ArOXS. * 387 laid down in Mackrefh v. Symmons, bind tho estato not only in the hands of the purchaser and his heirs, and persons taking from them as volunteers, but also in the hands of purchasers for valuable con- sideration, who bought with notice that the j)urchase-nioney re- mained nujiaid: Hearle v. Botelers, Gary's Ch. Rep. 35; Gibbons v. Baddall, 2 Eq. Ca. Ah. ()82 D. n. Elliot v. Edwards, 3 B. & P. 183; Walker v. Presirick, 2 Ves. G22; Hughes v. Kearney, 1 S. & L. 135; Winter v. Lord Anson, 3 Russ. 488; ,S'. C, 1 S. & S. 434; Frail v. Ellis, 1(3 Beav. 350, 354; Davies v. Thomas, 2 Y. & C. Exch. C. A. 234. [This equitable lien prevails against the purchaser, his heir?, and all persons* claiming under him, with notice that the purchase- money is unpaid: Neil v. Kinney, 11 Ohio, 58; Warner v. Van Alstyne, 3 Paige, 513, it also prevails against the widow's dower, Fisher v. Johnson, 5 Ind. 492; Williams v. Wood, 1 Humph. 408; Crane u Palmer, 8 Blackf. 120.] But the lien will not prevail against a bona lido purchaser w-ho bought without notice that the purchase-money remained unpaid (Gator \. Earl of Pembroke, 1 Bro. C. C. 302); and, although the title is deduced from the first vendor, in recital, still that will not be sufficient to affect the purchaser with notice, if the recital does not show that the estate was not paid for: Cator v. Earl of Pem- broke, 1 Bro. C. C. 302; Eyre v. Sadlier, 14 Ir. Ch Rep. 119; 15 lb. 1. [A bona fide purchaser for value without notice will take the estate unaffected by the lien: Carter v. Bank of Ga., 24 Ala. 37; Champion v. Brown, 6 Johns. Ch. 402; Scott v. Orbinson, 21 Ark. 202; Work V. Brayton, 5 Ind. 396; Selby v. Stanley, 4 Mi-s. 05; 'Bayley v. Greenleaf, 7 Wheat. 46.] See, however, Davies v. Thomas, 2 Y. & C. Exch. Ca. 234: in which case a reference, in the convey- ance of the second purchasers to the will under which the sale was made, was held to be sufficient notice of a lien not appearing upon the face of the will, upon the ground that notice of the will ought to have put the [)urchasers upon inquiries which would have led to the discovery of the lien. The authority of this case, as to what is to be deemed sufficient notice, seems doubtful. See Sugd. Y, & P. 819, 11th ed. The fact of the vendor remaining in possession of the estate as lessee, where he has acknowledged the receipt of the purchase-money in the body of the deed and by indorsement will not be notice of the purchase-money remaining unpaid, so as to cause the lien to attach: White V. Wakefield, 7 Sim. 401. But if the vendor claiming a lien retains the conveyance and tho title-deeds, a subsequent purchaser or mortgagee (although ho may have acquired the legal estate) may be affected with notice of tho lien, and therefore bound by it where the Court imputes to him fraud, or gross and wilful negligence, for omitting all inquiries as to the deeds: [Any fact that would put a reasonable man upon his inquiry will effect the purchaser with notice, "and if the vendor remains in 445 *3S8 MACKRETII ■y. SUMMONS, possession it will be sufficient to put a purchaser upon his inquiry and is constructive notice:" Perry on Trusts, Sec. 239; Hamilton v- Foulkes, 16 Ark. 340; Hopkins u Garrard, 6 B. Mon. 67; Riuggold V. Bryan, 3 Md. Ch. 488,] Worthington v. Morgan, 16 Sim. [ * 388] 547; Peto v. Hammond, 30 Beav. 495; * and see Hewitt v. Loosemore, 9 Hare, 449 ; Finch v. Shaic, Collyer v. Finch, 19 Beav. 500; 5 Ho. Lo. Ca. 905. As to restrictions on constructive notice, see the Conveyancing Act 1882 (45 & 46 Vict. c. 39), s. 3. A vendor of land in a Register County (except York), part of ivhose purchase- money remains unpaid, is under no obligation to obtain for the unpaid amount any written security which can be re- gistered, but is entitled to rely simply on his equitable lien, which he can enforce against sub- purchasers, who have notice of it, actual or constructive: Kettlewell v. Watson, 21 Ch. D. 685; 26 Ch. D. 501. And see note to LeNeve v. LeNeve, vol. 2. [If a purchaser knows that part of the purchase- money is unpaid he is put upon his inquiry. Manley v. Slason, 21 Vt. 271.] But the vendor, although he retains the purchase-deed, will, in such case lose his lien, as against sub-vendees, when his solicitors, at the request of the vendees, register the purchase deed with the receipt for the purchase-money endorsed, thereby enabling the ven- dees to represent to the sub-vendees that the land was free from in- cumbrances: Kettlewell \. Watson, 2Q Ch. D. 501; reversing on this point: S. C. 21 Ch. D. 685. A lien or charge on lands may now be registered under the York- shire Registries Acts, 1884 (47 & 48 Vict. c. 54) which enacts that " Where any lien or charge on any lands within any of the three Ridings is claimed in respect of any unpaid purchase-money or by reason of any deposit of title deeds, a memorandum of such lien or charge, signed by the person against whom such lien or charge is claimed, may be registered by any person claiming to be interested therein " [such memorandum to state as therein mentioned] " and no such lien or charge shall have any effect or priorty as against any assurance for valuable consideration which may be registered under this Act, unless and until a memorandum thereof has been registered in accordance with the provisions of this section," sect. 7. This Act is amended and partially repealed by 48 Vict. c. 4, and 48 & 49 Vict. c. 26. If the legal estate is outstanding, then, as the second purchaser has only an equitable interest, subsequent to that of the equitable lien, the maxim, " Qui prior est temx)ore iiotior est jure,'''' may, as in the principal case, apply; and the equitable lien will have preced- ence; Frere v. Moore, 8 Pri. 475. "Where, however, the equity of a second purchaser or mortgagee having only an equitable interest is better than that of the vendor claiming a lien for iinpaid purchase money, as for instance by rea- son of his having possession of the title deeds, with the usual receipt 446 JIACKRKTII V. SVMMOXS. '• 389 endorsed such purchaser or mortgagee will be entitled to priority over the lien. This subject was much discussed in the important and leading case of Rice v. Rice, 2 *Drew. 78. There certain [ * 389 J leasehold property was assigned to a purchaser, l>// a deed ivhich recited the jmyment of the icliole jnirchase-viovey, and had the usual receipt indorsed on ^7,and the title-deeds were drlicered up to the purchase!'. [A purchaser is bound to take notice of all the recitals in the deed of the vendee : McAlpin r. Burnett, 23 Texas, 649; Hutchinson r.Patrick,22 Texas,3l8; Kilpatrickr. Kil{)atrick,23Miss. 124; Woodward z;. Woodward,? B. Mon. 116.] Some of the vendors re- ceived no part of their share of the purchase- money, having allowed the payment to stand over for a few days, on the promise of the pur- chaser then to pay. The day after the execution of the deed, the purchaser deposited the assignment and title-deeds with the defen- dants, with a memorandum of deposit to secure an advance, ?.nd then absconding,withont paying either the vendors or the equital)le mort- gagees : — It was held by Sir R. T. Kindersley, V.-C, that the defen- dants, the equitable mortgagees, having the better equity, were en- titled to payment out of the estate in priority to the claim of the vendors for their lien. " In a contest," said his Honor, " between persons having only equitable interests, priority of time is the ground of preference last resorted to; i. e., a Court of equity will not prefer the one to the other, on the mere ground of priority of time, until it finds, upon an examination of the relative merits, that there is no other sufficient ground of preference between them ; or, in other words, that their equities are in all other respects equal; and that if one has, on other grounds, a better equity than the other, priority of time is immaterial. ... So far as relates to the na- ture and quality of the two equitable interests, abstractedly consid- ered, they seem to me to stand on an equal footiug ; and this I con- ceive to have been the ground of Lord Eldon's decision in Mack- reth V. Symmons, where, in a contest between the vendor's lien for unpaid purchase-money, and the right of a person who had subse- quently obtained from the purchasers a mere contract for a mort- gage, and nothing more, he decided in favour of the former, as be- ing prior in point of time ... If, then, the vendor's lien for un- paid purchase- money, and the right of an equitable mortgagee by mere contract for a mortgage, are equitable interests of equal worth in respect of their abstract nature and quality, is there anything in the special circumstances of the present case to give to the one a better equity than the other? One special circumstance that occurs is this, that the equitable mortgagee has the ])ossession uf the title- deeds." . . . And his Honor, after referring to Foster v. Black- stone, (1 My. & K. 307); Stanhope v. Verney (Butler's Co. Litt. 290 b. note (1),' sect. 15; 2 Eden, 81); 3 Sngd. Y. & P. 218; r.nd.Vaun- drell v. Maundrell (10 Yes. 271), adds : '• We have liere ample au- thority for the proposition, or rule of equity, that as between 447 *391 MACKRETII V. SYMMONS. [*390] * two persons whose equitable interests are precisely of the same nature and quality, and in that respect pre- cisely equal, the possession of the deeds gives the better equity. And applying this rule to the present case, it appears to me that the equitable interests of the two parties being, in their nature and quality, of equal worth, the defendant, having possession of the deeds, has the better equity ; and that there is, therefore, in this case, no room for the application of the maxim, ' Qui prior est tem- pore potior est jure,'' which is only applicable where the equities of fhe two parties are, in all other respects, equal. I feel all the more confidence in arriving at this conclusion, inasmuch as it is in ac- cordance with the opinion expressed by Lord St. Leonards in his work on Vendors and Purchasers. And I have no doubt, that in Mackreth v. Symmons, if the equitable mortgagee had, in addition to his contract for a mortgage, obtained the title-deeds from his mortgagor, Lord Eldon would have decided in his favour." And his Honor, after guarding against the supposition that he meant to express an opinion that the possession of the title-deeds would, in all cases, and under all circumstances, give the better equity, and after referring to Allen v. Knight (5 Hare, 272, 11 Jur. 527), says: " It appears to me that in all cases of contest between persons hav- ing equitable interests, the conduct of the parties and all the circum- stances, must be taken into consideration, in order to determine which has the better equity. And if we take that course in the present case, everything seems in favour of the defendant, the equit- able mortgagee. The vendors, when they sold the estate, chose to leave part of the purchase-money unpaid, and yet executed and de- livered to the purchaser a conveyance by which they declared, in the most solemn and deliberate manner, both in the body and by a receipt indorsed, that the whole purchase- money had been duly paid. They might still have required that the title-deeds should remain in their custody with a memorandum, by way of equitable mortgage, as a security for the unpaid purchase-money ; and if they had done so, they would have been secure against any subse- quent equitable incumbrance ; but that they did not choose to do, and the deeds were delivered to the purchaser. Thus they volunta- rily armed the purchaser with the means of dealing with the estate as the absolute, legal and equitable owner, free from every shadow of incumbrance or adverse equity. In truth, it cannot be said that the purchaser, in mortgaging the estate by the deposit of the deeds, has done the vendors any wrong, for he has only done that which the vendors authorised and enabled him to do. The de- [ * 391 ] fendant who afterwards took a mortgage, was in effect *" in- vited and encouraged by the vendors to rely on the pur- chaser's title. They had in effect, by their acts, assured the mort- gagee that, as far as they (the vendors) were concerned, the mort- gagor had an absohite indefeasible title both at law and in equity." See also Wilson v. Keating, 4 De G. & Jo. 588. 448 MACKRETir V. SVMMONS. ''303 It may bo hero mentionod that under thn 54th section of the Con- veyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), which applies only to deeds executed after the commencement of the Act, viz., from and immediately after the 31st Dec, 1881, a re- ceipt for consideration money in the body of the deed shall be suffi- cient, without any further receipt from the same being indorsed on the deed. And under the 55th section, which also applies only to deeds executed after the commencement of the Act, "A receipt for con- sideration money or other consideration in the body of a deed or indorsed thereon, shall, in favour of a subsequent purchaser not having notice that the money or other consideration thereby ac- knowledged to bo received, was not in fact paid or given, wholly or in part, be sufficient evidence of the payment or giving of the whole amount thereof." The assignees of a bankrupt will be affected by the equitable lien, although they may have had no notice of it; for it is a clear principle that assignees in bankruptcy take subject to all the equi- ties attaching to the bankri.pt: Boivlcs v. Rogers, G Ves. 95, cited in note («); Ex parte Hanson, 12 Ves. 349, Mil ford v. Mitford, 9 Ves. 99; Grant w Mills, 2 V. & B. 300; Ex parte Peake, 1 Madd. 846. [The lien prevails against assignees in bankruptcy, also against a general assignment: Green v. Demoss, 10 Humph. 371; also against judgment creditors: Rodgers v. Bowner, 45 N. Y. 379; Thomas v. Kennedy, 24 la. 397; Bank v. Campbell, 2 Rich. Eq. (S. C.) 179; Birkhard v. Edwards, 11 Ohio, 84.] So, also, will the as- signees under a general assignment for the benefit of creditors: Faivell V. Heelis, Amb. 724; and see 1 Bro. C. C. 302. "Where a vendor took a security for his purchase-money, as, for instance a bond, he was not permitted to sue at law on the bond and in equity to enforce the lien at the same time, but'was compelled to elect in which court be would proceed: Barker v. Smark,'d Beav. 64; Nairn v. Prowse, 6 Ves. 752. A vendor's lien for unpaid purchase -money not being an express trust, his right to recover it may be barred by the 40th section of the Statute of Limitations, 3 &"4 Will. 4, c. 27, after twenty years from the day fixed for payment (Toft v. Stephenson, 7 Hare, 1); but a case may bo taken out of the operation of the statute by a suffi- cient acknowledgment (S. C, 1 De G. Mac. &c G. 28; 5 De G. Mac. & G. 735); and thereupon, payment of the purchase-money remain- ing unpaid, and arrears of interest may be enforced in equity: lb. But by the Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57), which came into * operation on the 1st of [ * 392 ] January, 1879, the right to recover may be barred at the end of twelve years, sec. 8. The vendor's lien for unpaid purchase money was held not to be a " chai'ge by way of mortgage " within the meaning of " Locke King's Act" (17 & 18 Vict. c. 113); hence the personal estate of 29 WHITE ox KQUITY. 449 * 303 MACKRETII V. SYMMOXS. the deceased purchaser, notwithstanding that Act, remained^prim- arily liable for its payment: Hood v. Hood, 5 W. R. (N. S.) '747; 3 Jur. (N. S.) 084, and Barnewell v. Iremonger, 1 Drew. & Sm. 255, but now, by 30 k 31 Vict. c. G9, the word '• mortgage," in the con- struction of these statutes, has been extended to any lien for unpaid purchase-money upon any lands or hereditaments purchased by a testator. [The lien for the purchase money is not an estate in land nor is it a charge on the land; but it is an equity between the parties, their representatives or privies in law or estate to be resorted to in case of failure of payment by the vendee: " Perry on Trusts, Sec. 238.] As the enlarged meaning of the word " mortgage " was only given in the case of lands purchased by a testator, when lands were purchased by an intestate, his personal estate remained primarily liable to discharge the lien for unpaid purchase-money {Harding v. Harding, 13 L. R. Eq. 493; Hudson v. Cook, 26 L. T. Rep. (N. S.) 181, overriiling Evans v. Poole, 49 L. T. (N. S.) 50), until by 40 & 41 Vict. c. 34, the primary liability of the personal estate of an in- testate to discharge a lien for unpaid purchase money is abolished in the case of persons dying intestate after the 31st of December, 1887. Vendee's Lien for prematurely paid Purchase-Money.'] — If the purchase-money, or part of it, has by way of deposit or otherwise, been paid prematurely, before a conveyance, and the contract has been rescinded, or cannot be enforced through want of title or other default of the vendor, and the vendee properly refuses to complete, the vendee will have a lien upon the estate in the hands of the vendor. See principal case ante p. 367. Burgess v. Wheate, 1 Wm. Blacks. 150; Lacon v. Mertins, 3 Atk. 1; Wythes v. Lee, 3 Drew. 396; Aberaman L^omvorks v. Wickens, 4 L. R. Ch. App. 101, and also upon the title deeds thereof, Oxenham v. Esdalie, 2 Y. & J. 493; 3 lb 262; Esdaile\. Oxenham, 3 B. & Cr. 225. The vendee's lien extends also to interest on his purchase-money (Torrance v. Bolton, 14 L. R. Eq. 124, 136; 8 L. R. Ch. App. 118) and costs of suit by himself or the vendor to compel performance of the contract (lb.; and see Middleton v. Magnay, 2 H. & M. 233; Turner v. Marriott, 3 L. R. Eq. 744; Thomas v. Buxton, 8 L. R.^ Eq. 120), but not for damages or part of the damages which one of the contracting parties may be entitled to as against the other if he repudiates the contract, Wilson v. Church, 13 Ch. D. 35, per Cotton, L. J. The vendee will have a lien for prematurely paid pur- [ * 393 ] chase-money not only as against the vendor, * but as against a subsequent mortgagee who had notice of the payments having been made: Watson v. Rose, 10 W. R. (V.-C. K), 755; S. C, nom. Rose\. Watson, 10 H. L. Ca. 672,) even although some of the payments are in pursuance of the contract made after the mortgage, at any rate if the mortgagee gives no notice of any intention to interfere with the contract. — lb. 450 , MACKRETII V. SYM3I0NS. * 304 It seems, that where a purchaser pnunaturely pays part of the purchase-money to a mortgagee selling under a power of sale, ho would have a lion upon th(^ interest of the mortgagee. "There is," said Kinderslei/, V.-C, "certainly a ground of equity for that ; for though that which was the subject of sale was a fee-aim i)le, there is justice in saying if the vendor is entitled to some lesser interest, to the extent of that interest the purchaser is entitled to the lien." See Wythes v. Lee, 3 Drew. 400; Burgess v. Wheate, 1 Eden, 211 ; Lacon V. Mertins, 3 Atk. 1 ; Oxenham v. Esdaile, 2 Y. & J. 493; 3 Y. & J. 262. He would also have a lien upon the interest of parties for whom the mortgagee was a trustee, Wythes v. 7>c, 3 Drew. 4()0. In the event of a sale by the vendee of an estate having a lien upon it for prematurely paid purchase-money, the sub- vendee whc has also paid his jnirchase-nionry or part of it prematurely will, in case the first purchase is rescinded, have a lien upon the sum in respect of which the vendee had a lien upon the estate. Aberaman Ironworks V. Wickens, 4 L. R. Ch. App. 101. Where a person has, under the mistaken supposition that he was entitled to an estate under a contract, paid the purchase-money and taken a conveyance to himself, both he and a purchaser from him with notice of the title of the I'eal owner will be entitled as against him to a lien in respect of the purchase money and.interest, and <^n the moneys expended in lasting improvements, accounting however in the usual way for rents. See Neesom v. Clarkson, 4 Hare. 97. There a widow, entitled under her late husband's will to an estate which he had contracted to purchase in foe, but had not paid for, married again, and her second husband supposing himself to be en- titled to the estate, paid the purchase-money. The second husband sold the estate to a purchaser who was held to have notice that the husband was only entitled J»?'e iixoris. And on the death of the wife without issue of the marriage, upon a bill filed by the heir-at- law of the wife It was held by Wigram, V.-C, that the purchaser fi'om the second husband was only entitled to a lion in respect of the piirchase-monoy paid by him, and the moneys expended in lasting improvements from the date of the purchase * with [ *394] interest. In other respects the purchaser being treated as a mortgagee in possession, being debited with rents received, or which might, but for wilful default, have been received during the same period. See also Parkinson v. Hanhury, 2 L. R. Ho. Lo. 1 ; Maddison v. Chapman, 1 J. & H. 470. Where a trustee has purchased an estate partly with his own money and partly out of trust funds he will have a lien on the estate sub- ject to the amount of the trust funds laid out in its purchase; In re Pumfrey, The Worcester City and County Banking Co. v. Blick, 22 Ch. D. 255; and see Phayre v. Peree, 3 Dow, 116; Mafhias v. Mathias, 3 Sm. & G. 552. A person who pursuant to an agreement expends money upon pro- perty agreed to be leased to him, and which the proposed lessor 451 *394 MACKRETH ?,'. SYMMONS. agrees to repay on bis failure to grant a lease, will have a lien on the interest of the proposed lessor in the property, upon his being unable to grant a lease for want of title: Middleton v. Magnay, 2 H. & M. 233. The lien of the vendee for prematurely paid purchase-money will not exist where he has by his own default abandoned the contract (Dinn v. Grant, 5 De G. & Sm. 451; Ex parte Barrell, In re Parnell, 10 L. R. Ch. App. 512), nor where the contract is by statute illegal (Eiving v. Osbaldiston, 2 My. & Cr. 88), nor where the purchaser is by law disqualified from holding real estate (Harrison v. Soiith- cote, 2 Yes. 389, 393). Secus, if the purchaser repudiates the con- tract where the vendor cannot make a good title, or where the sale constitutes a breach of trust ( Wythes v. Lee, 3 Drew. 396). [^Doctrine of Vendoy^^s Lien for Purchase Money Restated. — If a vendor delivers possession of an estate to the purchaser without hav- ing received the purchase money, equity gives the vendor a lien upon the land to the amount of the unpaid purchase money, although there was no special agreement to that eifect, and whether the estate has been conveyed or only contracted to be conveyed. This doctrine has not been uniformly followed throughout the United States, see note number 1. It can be readily seen that between the parties this lien is founded on natural justice, Inst. Lib. 2, tit. 1, Sec. 41. It exists notwith- standing that the deed recites or acknowledge that the purchase money has been paid, if in point of fact it has not been paid. Much of the litigation upon vendor's lien has arisen over the question, whether the lien has been Avaived or not, when the vendor takes security for the purchase money; the rule appears to be that if the security taken is inconsistent with the continuance of the charge, the lien is at an end, but the question in each particular ca=;e whether the lien has been relinquished can only be determined by special circumstances; the questioQ is always one of intention to be collected from circumstances which have taken place. If one of several purchasers pays the whole of the purchase money, he does not thereby secure a lien on his co-purchaser's shares: Glasscock v Glasscock, 17 Texas, 480. Nor does a lien accrue to a third person who loans the purchase money to the vendee and takes his note therefor: Skeggs v. Nelson, 25 Miss. 88 ; Stansell v. Roberts, 13 Ohio, 148; Crane v. Caldwell, 14 111. 468. A lien at common law is a right which is inseparable from the article on which the lien is claimed to exist, but in equity it may exist wholly independent of possession. The vendor's lien for un- paid purchase-money does not come into actual existence until a bill has been filed to assert it.] 452 NOYS V. MORDAUNT. * 395 * NO YS V. MORDAUNT. [ * 395 ] De Term. S. JIIL, Feb. Wi, 1706. [reported 2 VEEN. 581.] [S. a, Eq. Ca. Ah. 273, pi 3; Prec. Cli. 265; Gilb. Eq. Rep. 2.] Election.] — A. having two daughters, B. and C, devises fee- simple lands to B., and lands xchich icere settled upon him in tail to G. If B. will claim a share of the entailed lands under the settle- ment, she must quit the fee -simple lands; for the testator having disjjosed of the whole of his estate amongst his children, ichat he gave them ivas upon the implied condition they should release to each other. John Everard, having two daughters, in 1G8G makes his will, and devises to Margaret, his eldest daughter, his lands in Beeston, and 800Z. in money; to Mary, his second daughter, his lands in Stan- born and Broom, and 1300Z. in money, provided and on condition she released, conveyed, and assured Beeston lands to her sister Margaret; and devised to his said second daughter 1300/. in money [u). Provided, if ho should have a son, what was devised to his daughters to bo void; and ia such case gave to Margaret 1200/., and to Mary 1000/. Provided, if ho should have another daughter, then he gave the 800/. devised to Margaret to such after- born daughter; and the lands at Stanborn and Broom, and the 1300/. devised to Mary, the second daughter, to the said Mary and such after-born daughter, e^jually between them. He shortly afterwards died, and left his wife enceinte of a daughter, Elizabeth. Mary married Higgs, and died without issue, not having given any release to Margaret, her sister, according to the will. (wl This last bequest of £1300 in money seems to be a repetition of the first bequest of that sum with the hinds iu Stanborn and Broom. 453 *396 NOYS V. MORDAUNT, Elizabeth claimed not only the lands devised to her by [ * 396] * the will, and a moiety of what was devised to her sister Mary, but also a moiety of the Beeston lands, devised to Margaret: the same, oa the testator's marriage, being settled on himself for life, and his wife for her jointure, and to the first and other sons, and, in default of issue male, to the heirs of his body. Question was, whether she should be at liberty so to do, or ought not to acquiesce in the will, or renounce any benefit thereby. Lord Keepek Cowper. — In all cases of this kind, where a man is disposing of his estate amongst his children, and gives to one fee-simple lands, and to another lands entailed or under settle- ment (v) it is upon an implied condition that each party acquit and release the other; especially as in this case, where, plainly, he had the distribution of his whole estate under his consideration, and has given much more to Elizabeth than what belonged to her by the settlement, and had it in his power to cut off the entail. [v) That is to say, entailed or settled upon the one to whom the fee-simple lands are given, or upon such one jointly Avith the other. 454 STREATFIELD V. S^RKATFIELD. * SOji *STREATPIELD v. STREATFIELD. [-307 ) De Term, S. Hil., 1735. [reported oas. temp. talb. 170.] Election.] — The ancestor, by articles previous to his marriage, agrees to settle certain lands to the use of himself and his intended wife, remainder to the issue of the marriage in the usual manner. After marriage he makes a deed, not pursuant to the articles, and lias a son and two daughters; and iqjon the marriage of Ids son, set- tles other lands, in consideration of this last marriage, in the usual manner, and levies a fine of the former lands to the use of himself in fee; and then makes his will, and devises part of the former lands to his two daughters, and the rest of his real estate to trustees, to the tise of his grandson for life, with usual re- mainders; and icith direction, out of the profits to educate the grandson, and to place out the rest of the profits to be paid to the grandson at tiventy-one years of age; and if he does not attain that age, to be paid to his said daughters, their executors, &c. The grandson is not to be bound by the deed, tvhich did not pursue the articles, but then he shall make his election when he comes of age, and if he chooses to take lands which ought to have been settled, the daughters {his aunts) shall be reprised out of the lands de- vised to him. Thomas Streatfield, the plaintiff's grandfather, by articles previ- ous to his marriage, May 31st, 1677, agreed to settle lauds in Seven- oake [in the county of Kent] to the use of himself and Martha, his intended wife, for their lives and the life of the survivor; and after the survivor's decease, to the use of the heirs of the body of him the said Thomas on his wife begotten, with other remainders over. * The marriage soon after took effect, and by deed, [ * 398 ] dated April 5th, 1098, reciting the foresaid articles, he settled his lands at Scvenoake to the use of himself and his wife, 455 * 399 STPvEATFIELD V. STREATFIELD, for their lives, and the life of the longest liver of them, without impeachment of waste during the life of Thomas, and after their decease, to the use of the heirs of the body of the said Thomas, on the said Martha to be begotten; and for want of such issue, re- mainder to the right heirs of Thomas. They had issue, Thomas (their only son), and two daughters, Margaret and Martha. In the year 1716, upon the marriage of Thomas, the son, the father settled other lands (of which he was seised in fee), of the yearly value of 355L, to the use of his son for life, remainder to the daughters of the marriage, remainder in fee to the son, with a power to raise 2000^. for younger children. After the son's death [leaving a son called Thomas], Thomas, the father, in the year 1723, levied a fine of the lands comprised in the deed of 1698 to the use of himself in fee, and in the year 1725 made his will, and thereby devised part of those lands (iv) to his two daughters, Margaret and Martha; "And also all other his manors, messuages, lands, tenements, and hereditaments whatsoever, either in possession, reversion, or remainder, not thereinbefore given or disposed of, situate in the counties of Kent, Surrey, or elsewhere, to trustees in trust for the plaintifp Thomas, his grand- son, for life; remainder to his first and other sons in tail male; re- mainder to his daughters in tail; remainder to Margaret and Martha, with several remainders over." Then comes this clause: "And my v/ill and meaning farther is, and I do hereby authorise and ap- point the trustees, and the survivor of them, to receive the rents and profits of the said estates to them devised, and out of the same to allow and expend, for the education of my grandson Thomas, so much as they shall think fit during his minority; and that the trus- tees shall place out at interest such monies arising out of the rents and profits of the said estates; which said monies, with [ * 399 J interest arising therefrom, my will is *be paid to my grandson Thomas at his age of twenty-one years, if he so long live; or, in case he dies before that age, then that the same shall, be paid to my two daughters, Margaret and Martha, their executors, &c." The testator died in the year 1730. The question was, whether the settlement in 1698 was a proper execution of the articles of 1677 ? and if not, whether the general {w) i. e., viz. the lands at Sevenoake in Kent. 456 STREATFIELD V. STREATFIELD. * 400 devise to the plaintiff Kbould bo taken as a satisfaction for what be was entitled to under tbo articles of 1077 ? Mr. Solicitor-General, Mr. Broivne, Mr. Fazakerlcij, and Mr. Noel argued for tbe plaintiff, tbat, altbougb in a will or articles executed, Tbomas tbe grandfatber would bave been tenant in tail, yet tbe articles of 1077 being but executory, tbis Court would interpose, by carrying tbem into execution in tbe strictest manner, and not leav- ing it in bis power to destroy tbe uses as soon as raised. Tbat, ac- cording to tbat rule, tbe deed of 1098 was certainly no execution of tbe articles in equity; for, tbougb it was in tbe very words, yet did it not at all answer tbe intent of tbo articles, and, came tberefore, witbin tbe rules of Trevor and Trevor''s case, 1 Eq. Ca. Abr. 887 {x). Tbat tbe settlement in 1710, upon Tbomas tbe son's marriage (altbougb it was of lands of greater value tban tbose contained in tbe articles), could never be tbougbt a satisfaction for tbem, tbere being no reference at all in it to tbo articles, and it being made only in consideration of tbe son's marriage, and for settling a jointure upon bis wife, and making a competent provision for tbe issue; all wbicb are new considerations, no way relative to tbe articles: and wbere tbere is an express consideration mentioned in a deed, tbere can be no averment of anotber not contained tberein {y). Tbat notbing could be taken for a satisfaction but wbat was in its nature agreeable to tbo tbing wbicb was to be done, was bold in Lechmere and Lady Lechmere's case {z). But, in tbis case, Tbomas tbe son was, by tbe articles, to bave been tenant in tail; but by tbe settlement in 1710, be was to be but tenant for life: wbicb was giving bim a * less estate for a greater, and conse- [ * 400 ] quently not to be deemed a satisfaction witbout a special acceptance of it as sucb, according to tbe rule in PinueVs case, 5 Co. 117, wbere it is beld tbat payment of a lesser sum can never be a satisfaction for a greater, unless upon a special circumstance sbowing tbo intent, as payment at an earlier day, &c. Tbat tbe will could no more be taken for a satisfaction tban tbe settlement, and upon tbo same reasons; for, by it, tbe plaintiff is no more tban tenant for life, and even tbat not absolutely, tbo prolits being di- rected by tbe testator to be accumulated until tbo plaintiff attains bis age of twenty-one, and tben to be paid to bim; but if be dies (x) 1 P. Wms. f)22 S. C. {>/) Dver, 146, b. 71. (2) Lechmere v. Lechmere. Ca. t. Talb, 80 ; S. C. 3 P. Wms. 211. 457 * 401 STREATFIELD V. STREATFIELD. before thai; age, they are given away to the testator's daughters; and when he does arrive at that age, he is to be but barely tenant for life, and even not that without impeachment of waste; besides, if the will be construed a satisfaction, as against the plain tifP, so it must likewise be as to all the others claiming under the articles; whereas, the plaintiff's sisters, who were entitled under the articles, can never take anything under this will, but are wholly excluded. The general devise of all his manors, lands, &c., in possession, re- reversion, or remainder, will not alter the case; for where the testa- tor hath estate sufQcient to satisfy such general words, he shall never be construed to have intended to pass that which he had no right to dispose of, and the giving of which would work a wrong. That he had no right to dispose of the lands contained in the art- icles, is evident from what hath been already said; and had not this been upon his own marriage, but in any other settlement, he had been a trustee for his son, and then had made his will in the same words that he hath done here, surely that trust estate would never have passed; and there is no difference, whether the trust be ex- pressed, or whether it arises by implication of equity. It would be an absurdity to construe these words to pass away a third person's estate. A grant of all one's goods will not pass those which he hath in auter droit: So, if he had had a mortgage in fee, such [ *401 ] general words would * not have passed it from the devisee of the personal estate to the devisee of the land. In Rose and BartleWs case, Cro. Car. 292, a general devise of all his lands and tenements, having both freehold and leasehold, was held to pass the freehold lands only (a). And, in Harivood and Child's case, heard by the present Lord Chancellor, March 18, 1734, a devise of all his lands for payment of debts, having both freehold and copy- hold, but no surrender made of the copyhold to the use of his will, was held not to pass the copyhold. Nor can the cases of Duffield V. Smith, 2 Vern. 258; Noys v. Mordaunt, 2 Vern. 581; be objected: for, in the former, the decree was reversed, upon account of the sister's being heir-at-law, and disinherited, which is the present case; (for here they would take a beneficial interest from the plain- tiff, who was heir-at-law to his grandfather, and give him but a very small one in its room;) and, in the latter case, the father being tenant in tail of part, had power to bar it by fine; in which respect he might well be looked upon as a proprietor of the w^hole ; but if h e {a) See now, 1 Vict. c. 26, s. 6. 458 STREATFIELD V. STREATFIELD. * 402 be decreed to make liiH election, it must bo done presently, for then it is that he is to take; whereas, he cannot by law make his elec- tion, being but an infant; and if so, the court must compel him to do that which the law disables him from doing. Mr. Attorney- General, Mr. Strange, and Mr. Peere Williams, argued for the defendant, that this Court will not, in all cases what- ever, decree a specific performance; but woiild, in some particular cases, leave the party to his remedy at law upon the covenant: that these articles were made so long ago as in 1077, and Thomas, the son, who was the person entitled to have them carried into execu- tion, lived until 1722, forty- five years after, without ever desiring to have them executed; and that the intent of those articles did not seem to go any further than the settling the jointure on the wife, and the making Thomas, the grandfather, tenant in tail, the words being to provide for the ivife,h\\\. no mention made of the issue; but, * lohoever comes into equity must do equity ; and, [ *402 ] therefore, if the plaintiff would take advantage of those articles, he must make a compensation for it out of the will, which gives him an estate upon a plain supposal that he shall take nothing by the articles; but shall never be at liberty to take a great benefit under the will, and waive that part which makes against him to the prejudice of a third person. The whole will must be acquiesced under, or no part of it at all, according to the resolution in Noys and Mordaunfs case (b) ; which went upon the reason of an entire com- pliance with the testator's intent in taking entirely under the will, and not upon the supposed reason of his being proprietor by having it in his power to levy a fine. The like resolution was in the case of Hearne v. Hearne, 2 Vern. 555, in that of Coicper v. Cotton, Feb- ruary 16, 1731 (c), at the Rolls: where a freeman of London de- vised his estate to trustees for the raising 6000Z. for his four daugh- ters, and made a disposition of the surplus, it was held that they should stand either by the will or by the custom; and if by the for- mer, that they should not defeat the devise over. That, in cases where general words in a will had been restrained from passing all which the testator had, it hath been upon the testator's intention manifestly appearing in the will itself, not to pass so much as the generalty of his words would comprehend; but, in the present case> [h) Ante, p. 367. (c) Cowper v. Scott, 3 P. Wins. 123. 459 * 403 STREATFIELD V. STREATFIELD. his intent plainly appears to pass all: nor will that intent be satis- fied by saying, that he had a reversion of the lands comprised in the articles, since he would have been tenant in tail under the articles, and only for life under the will. LoKD Chancellor Talbot. — It cannot be doubted but that, upon application to this Court for the carrying into execution the articles of 1677, the Court would have decreed it to be done in the strictest manner, and would never leave it in the husband's power to defeat and annul everything he had been doing: and the nature of the pro- visioa is strong enough for this purpose, without any express words, and I must, therefore, consider what was the [* 403 J * operation of the deed of 1698, which is declared to be in performance of the true intent and meaning of the articles. If it be so, all is well; but if it be not, it only shows that the parties intended it so but were mistaken. So was the case of IVest v. Er- rissey (d), where the articles were, by the House of Lords, decreed to be made good; and the same must be done in this case, if noth- ing intervenes to prevent it. The settlement in 1716, whereby the grandfather settled other lands upon his son's marriage, has been called a satisfaction for those articles; but to me it appears neither an actual satisfaction nor to have been intended as such. The grandfather had done that in 1698, which Le apprehended to be a satisfaction for the articles; but this deed proceeds upon considerations quite difPerent from those of the articles, the persons claiming under this being pur- chasers for a consideration entirely new, the limitations being en- tirely different; and, therefore, it would be absurd to call this a sat- isfaction for another thing it hath nothing to do with, and to which it is no way relative. The next thing to be considered is, the fine levied of the lands in question in the year 1728, by the grandfather; the intent Avhereof was to have the absolute ownership of those lands in him. And one reason why no application hath been made till now to have those articles carried into execution, might be that during the grantlfather's life nobody was entitled to anything in possession under them. Then comes the will in 1725, whereby he gives part of those lands, settled in 1698, to his daughters; thereby showing his appre- {d) 2 P. Wms. 349; 1 Bro. P. C. 225; Toml. edit. 460 STRKATFIELD V. STREATFIELD. * 404 hension to be, that, by a fino, ho bad given himself a power of dis posing of them; and it would be a very Htrainod construction to say that he intended this, not as a present devise to his daughters, but to take effect out of the reversion of the lands comprised in the articles. The next thing is the devise to the trustees for his grandson the plaintiff, upon his attaining the age of twenty -one; and the question here is whether the general * words shall ever [ * 404] pass lands not capable of the limitation in the will ? And to that have been cited Rose and BartletVs cane, Cro. Car. 292, and other cases; but they cannot influence the present case: for, the testator had legally a power to dispose of those lands; and though they might be affected with a trust in equity, yet that cannot be sup- posed to lie in his conusance, he having done an act to enable himself to dispose of these lands. And it differs from the case that was put of an express trust, and the trustee devises all his lands; for there the trustee cannot be ignorant that the lands which he holds in trust are not his own. But what makes his intent clear is, that he hath devised part of these lands to his daughters, and he must have looked upon himself as master of the one part as well as the other: I, therefore, thmk his intent icas clear to jyass these lands hy the icill; and if so, we must now consider what will bo the ef- fect of this will. If the plaintiff has a lien upon the lands of the articles, then he may stand to them if he pleases; hut ivhen a man takes upon him to devise tvhat he had no poicer over, upon a supposition that his will will he aequiesced tinder, this Court compels the devisee, if he will take advantage of the will, to take entirely but not partially under it; as was done in Noys and Mordaunt's case (2 Vern. 581); there heing a tacit condition annexed to all deviscs'of this nature, that the devisee do not dislurb the disposition which the devisor hath made. So are tho several cases that have been decreed upon the custom of London. The only difficulty in the present case is, that what is given to the plaintiff is precarious, nothing being given to him if ho dies be- fore twenty-oue, and, if after, theu but an estate for life; and that he appears before the Court in a favourable light of being heir-at- law; but this will not alter the case. The estates which the testa- tor has given him were undoubtedly in his power; he hath given them to trustees until his grandson attain twenty-one, and has dis- 461 * 406 STREATFIELD V. STREATFIELD. posed of them in such a manner as that there can never f *405 ] be any undisposed residue to go to *tbe plaintiff as heir- at-law; and surely it is as much in the power of the Court to make this bequest, thus limited to be a satisfaction, if the party will stand to the will, as in the other cases. Indeed, if he takes by the will there is nothing to make satisfaction to his sisters for their general chance under the articles; but that is because nothing is left them by the will; and they cannot be said to be quite destitute of provision, since it is just and reasonable that they should be maintained by their mother, who is entitled to a large and ample provision by her marriage settlement; nor can what is devised to the plaintifP be looked upon as intended by the testator to go towards the maintenance of younger children; for, if the plaintiff dies before twenty-one, then all the profits already re- ceived are to go to his aunts; and so by that construction I must take the maintenance out of their estate, and oblige them to con- tribute to the maintenance of distant relations, viz., nieces, at the same time that the mother (who hath an ample provision) would be left at large, and iinder no tie of maintaining her own children. And so decreed (e) the plaintiff to have six months after he comes of age, to make his election, whether he will stand to the will or the articles? And if he makes his election to stand to the latter, then so much of the other lands devised to him as will amount to the value of the lands comprised in the articles, and which were devised to Margaret and Martha, to be conveyed to them in fee. Noys V. Mordaunt, and Streatfield v. Streatfield, are printed together since they are usually cited as having conclusively estab- lished the doctrine of election, which is founded upon the princi- ple, that there is an implied condition, that he who accepts a bene- fit under an instrument must adopt the whole of it, conforming with all its provisions, and renouncing every right inconsistent with them. See Walpole v. Conicay, Barnard. Ch. Rep. 159; Kirkhani V. Smith, 1 Ves. 258; Macnamara v. Jones, 1 Bro. C. C. 411; Frank V. Standish, 1 Bro. C. C. 588, n.; Blake v. Bunbunj, 4 Bro. C. C. 21 ; Swan V. Holmes, 19 Beav. 471; Wintonr v. Clifton, 21 Beav. 447; 8 De G. McN. & G. 641; Cosby v. Lord Ashtoicn, [ *406] * 10 Ir. Ch. Rep. 219; Heazle v. Fitzmaurice, 13 Ir. Ch. Rep. 481; Schroder v. Schroder, Kay, 584. 585; 2 Seton on Decrees, 933, 4th ed. ; Dillon v. Parker, 1 Swanst. 359, and Gret- (e) See the decree, 1 Swanst. 447; Keg. Lib. B. 1735, fol. 205. 462 STUEATFIELU V. STREATFIKLD. * 400 ton V. Haivard, 1 Swanst. 4U0, and Mr. Swanston's loarnoJ and elaborate notes to those cases. [The doctrine rests upon the prin- cipal that a person who claims under an instrument shall not inter- fere by a paramount title to prevent another part of the same in- strument from having effect accordintrto its construction. A person cannot accept and reject the same instrument: Heaves r. Garrett, 34 Ala. 558; Wilbank v. A\ ilbanks, 18 111. 17; Marriott r. Badger, 5 Md. 800; Clay v. Hart, 7 Dana, 1; Gable r. Daub, 4 AVright (Pa. j, 217; Pemberton v. Pemberton, 29 Mo. 409; O'Reilby v. Nicholson, 45 Mo. 100; Van Duyne v. Van Duyne, 1 McCart. 49; Brown r. Pit- ney, 39 in. 408; Brown v. Eicketts, 3 Johns. Ch. 553.] To illustrate the doctrine of election, suppose A., by will or deed gives to B. property belonging to C, and by the same instrument gives other property belonging to himself to C, a Court of equity will hold C. to be entitled to the gift made to him by A. only, iipon the implied condition of his conforming witli all the provisions of the instrument, by renouncing the right to his own j)roperty in fa- vour of B. ; he must, consequently, make his choice, or, as it is technically termed, he iS put to his election, to take either under or against the instrument; if C. elects to take under, and consequently to conform with all the provisions of, the instrument, no difficulty arises, as B. will take C's property, and C. will take the property given to him by A.; but if C. elects to take against the instrument, that is to say, retains his own property and at the same lime sets up a claim to the property given to him by A., an important ques- tion arises whether he thereupon incurs a forfeiture of the whole of the benefit conferred upon him by the instrument, or is merely bound to make compensation out of it to the person who is dis- appointed by his election. There are many dicta and some old text writers are in favour of the doctrine of forfeiture, note to 1 Roper on Husband and "Wife, 500, by Jacob, 2 Sugd. Pow. 145, 7th edit. The principal case of Streatfield v. Streatfield, is a distinct au- thority for the doctrine of compensation, which may now be con- sidered as fully established: Webster v. Mil ford, 2 Eq. Ca. Ab. 303, marg. ; Bar v. JSor, 3 Bro. P. C. Toml. Ed. 107; Ardesoife v. Be7i- nef, 2 Dick. 405; Lewis v. King, 2 Bro. C. C. GOO; Freke v. Barring- ton, 3 Bro. C. C. 284; Whistler v. Webster, 2 Ves. jun. 372; Ward v. Baugh, 4 Ves. 627; Lady Cavan v. Pultenexj, 2 Ves. jun. 500; Blake v. Banbury, 1 Ves. jun. 523; Welby v. Welby, 2 V. "& B. 190, 191; and Lord Eldon, in Daskivood v. Peyton, 18 Ves. 49; Tibbie's V. Tibbifts, Jac. 310; Lord Rancliffe v. Parkyns, Dow. 179; and Ker V. Wauchope, 1 Bligh. 25, and it may now be laid down in ac- cordance with Mr. Swanston's learned note to Gretton v. Haicard, 1 Swanst. 433, "1st. That, in the event of election to take against the instrument, Courts of equity assume jurisdiction to sequester the benefit intended for the refactory donee, in order to secure compensation to those whom liis election disappoints. 2nd. That 463 *408 . STREATFIELD t". STREATFIELD. [ * 407 ] the surplus * after compensation does not devolve as undisposed of, but is restored to the donee, the purpose being satisfied for which alone the Court controlled his legal right." See also Padburij v. Clark, 2 Mac. & G. 298; Greemcood v. Penny, 12 Beav. 403; Hotcells\. Jenkins, 1 De G. Jo. & Sm. 617; Grissell V. Sivinhoe, 7 L. E. Eq. 291; Pickersgill v. Rodger, 5 Ch. D. 163; Schroder v. Schroder, Kay, 578; Hoivells v. Jenkins, 1 De G. J. & S. 617; Cooper v. Cooper, 6 L. E. Ch. App. 15; S. C, 7 L. E. Ho. Lo. 53. As to a form of decree securing compensation to parties disap- pointed by an election to take against a will, see 2 Seton on Decrees, 934, 4th ed. And after the death of a person who has elected to take against an instrument compensation will be directed to be made out of his estate to the party who has sustained a loss thereby, so far as such loss does not exceed the be^nefit taken under the instrument by the person making such election: {Rogers v. Jones, 3 Ch. D. 688, 690; and for Forms of Decree therein, see 2 Seton on Decrees, 935), and such party may now commence an action for damages or compensa- tion (Rogers v. Jones, 7 Ch. D. 345). And inasmuch as it is not within the causes and matters assigned to the Chancery Division, by sec. 34 of the Judicature Act, 1873, although it may be enter- tained there, the lower scale of costs only has been held applicable. lb. Moreover, where a person who elects to take a fund against an instrument, has been previously receiving money under it, he must on making his election repay such money, and the persons interested under the trusts of the instrument have a lien for the repayment thereof on the fund which he elects to take: Codrington v. Lindsay, 8 L. E. Ch. App. 578. As the doctrine of election depends upon compensation, it follows that it will not be applicable when made contrary to the instrument unless there be a free and disposable fund passing thereby from which compensation can be made. Thus it was held, by Lord Loughborough, C, inBristowe v. Warde, 2 Ves. jun. 336, that where, under a po^^er to appoint to children, the father made an appoint- ment to persons not objects of the power, any child might set it aside and claim as in default of appointment, and also take a specfic share appointed to him. " The doctrine of election,'' said his Lord- ship, "never can be applied, but where, if an election is made contrary to the will, the interest that would pass by the will can be laid hold of, to compensate for what is taken away; therefore in all cases there must be some- fi'eG disposable property given to the person, which can be made a compensation for what the testator [ * 408 ] takes away. * That cannot apply to this case, where no part of his property is comprised in the will but that which be had power to distribute." See also Box v. Barrett, 3 L. E. Eq. ^'iA:', Re Fowler's Trusts, 27 Beav. 842. 464 STREATFIELD IJ. STREATFIKLD. * 409 Upon the samo principle in the case of a married woman, to ■whom an interest with a restraint on anticipation is given by the samo instrument as that which gives rise to a question of election, the doctrine of election does not api)ly, as the nature of her interest in the property, to bo reliu(juished by way of compensation, has by the terms of the instrument been made inalienable. In re Wheatley, Smith V. Sj?ence, 27 Ch. D. GOO; Smith v. Lucan, 18 Ch. D. 531; sed vide, In re Vardon's 'rrusts, W. N. Nov. 20, 1884, p. 210; S. C. 28 Ch. D. 124, reversed on appeal, W. N. 1885, Dec. 20, p. 224. A person will not be obliged to elect between benefits conferred upon him In' an instrument, and an interest which he takes deri- vatively from another, who has elected to take in opposition to the instrument. Thus it was held, that a husband might bo tenant hy the curtesy of an estate tail, which his wife had elected to take in opposition to a will, under which he had accepted benefits: for as the wife made complete compensation to the persons disappointed by her election, there could not be a second election, becaiise in fact there was no one entitled to compensation: Lady Cavan v. Pnlte ney, 2 Ves. jun. 544; 3 Ves. 384. Nor will a person bo compelled to elect between a benefit con- ferred upon him by an instrument, and an interest which ho took adversely to the instrument and derivatively from the real owner, who took no benefit thereunder. Thus, if one co-heiress by electing to take under a will is compelled to give up her original share, she may retain a share which since the testator's death has descended to her from a deceased co-heiress : Coojjer v. Cooper, L. E. Ch. App. 15, 21; 7 L. R. Ho. Lo. 53; Iloicells \. Jenkins, 2 J. & H. 700; Grissell v. Sicinhoe, 7 L. R. Eq. 291. If however the title to property, whether derivative or otherwise, were vested in the owner before the testator's death, the owner must elect between benefits conferred upon him by the testator's will and his own property if the testator has devised it to others, see Coojyer V. Cooper, L. R. Ch. App. 21; 7 Ho. Lo. 53; Brodie v. Barry, 2 V. & B. 127; Bennett v. Houldsworth, 6 Ch. D. 071. It seems to be doubtful, whether the doctrine of election applies to grants from the Crown, for the Crown is always in existence and can always bo applied to, to set right the grant; per Sir T. Plumer, M. R., 2 J. & W. 345. ^Vhere, however, two, persons A. and B. joined in a I)etition to tho crown, representing an estate * to have es- [ * 409 ] cheated and procured a grant of it to be made to them, it was held by Sir T. Plumer, M. R., that the assignees of A. coiild not afterwards set\ip a claim to one part under a ]irior title in him- self, while taking tho benefit of tho grant as to tho rest: Cmnming V. Forrester, 2 J. & W. 331. The doctrine of election is applicable to deeds as well as to wills (Llewellyn v. Mackworth, Barnard. Ch. Rep. 445; Biqland v. Hud- dleston, 3 Bro. C. C. 280, n.; Mowex. Butler, 2 S. & L. 200; Firm- 30 WHITE ON EQUITY. 465 * 410 STREATFIELD V. STREATFIELD. ingham v. Klnvan, 2 S. & L. 450; Gh^een v. Green, 2 Mer. 8G; Bacon V. Cosby, 4 De G. & Sm. 2(31; Cummingy. Forrester, 2 J. & W. 345 ; Anderson v. Abbot, 28 Beav. 457 ; Mosley v. Ward, 29 Beav. 407 ; Codrington v. Lindsay, 8 L. R. Ch. App, 578; S. C, nom. Codring- ton V. Codrington, 7 L. K. Ho. Lo. 854): although by the civil law from which it appears to have been borrowed by our courts of equity, it was confined to wills. See Mr. Swanstou's note to Dillon v. Parker, 1 Swanst. 394. The doctrine of election, moreover, notwithstanding the opinion of Lord Hardu'icke, in Bar v. Bor, 3 Bro. P. C. 178, n., Toml. Ed., and the decision in Steicart v. Henry, Vern. & Scriv. 49, has been held applicable to interests remote, contingent, or of small value, such as a remainder expectant on an estate tail as well as to those which are immediate or of great value: [Webb v. Earl of Shaftes- bury, 1 Ves. 480; Graves v. Forman, cited 3 Ves. 67; Highicay v. Banner, 1 Bro. C. C. 584; Wilson v. Townsejid, 2 Ves. jun. 697 ; Morgan v. Morgan, 4 Ir. Ch. Rep. 606; Sadlier v. Butler, 1 I. R. Eq. 415; Henry v. Henry, 6 I. R. Eq- 286), also to the interest of next of kin in the unascertained residue of an intestate's personal estate. Cooper v. Cooper, 6 L. R. Ch. App. 15; S. C.,1 L. R. Ho. Lo. 53 ; Bennett v. Houldsicorth, 6 Ch. D. 671. In order to raise a case of election, at any rate in the case of a will, there must appear in the will itself a clear intention on the part of the testator to dispose of that which is not his own {Forrester v. Cotton, 1 Eden, 531; Judd v. Pratt, 13 Ves. 168; 15 Ves. 390; Dashivoodv. Peyton, 18 Ves. 27; Blake v. Bunbury, 4 Bro. C. C. 21; S. C, 1 Ve3. jun. 514; Ranclijfe\. Lady Parky ns, 6 Dow, 149, 179; Dillon V. Parker, 1 Swanst. 359; S. C, Wills. 253; Jac. 505 ; 7 Bligh, N. S. 325; 1 C. & F. 303; Sugd. Prop. 450; Jervoisey. Jer- voise, 17 Beav. 566; Padbury v. Clark, 2 Mac. & G. 298 ; Lee v. Egremont, 5 De G. & Sm. 348 ; Wintour v, Clifton, 21 Beav. 447 ; 8 De G. Mac. & G. 641 ; and Stephens v. Stephens, 3 Drew. 697 ; 1 De G. & Jo. 62; PooZe v. Olding, 10 W. R. (V.-C. K) 337 (L. J.) 591; Fox v. Charlton, 10 W. R. (V.-C. K) 506; Thornton [ * 410 ] V. Thornton, * 11 Ir. Ch. Rep. 474; Box v. Barrett, 3 L. R. Eq. 244; Sadlier v. Butler, 1 Ir. Eq. 415), In re Booker, W. N. 1886, Feby. 6, P. 18, [The Court will refuse to raise an elec- tion from mere precatory words which may be construed as not be- ing imperative: see Elfresh v. Schley, 2 Gill. 182; Stokes Estate, 11 P. F. Smith, 144; Havens v. Sackett, 15 N. Y. 365.] and it is im- material whether he knew the property not to be his own, or by mis- take conceived, it to be his own; for, in either case, if the intention to dispose of it appears clearly, his disposition will be sufiicient to raise a case of election: Whistler v. Webster, 2 Ves. Jan. 370 ; Thellussony. Woodford, 13 Ves. 221; Wellnj v. Welby. 2 V. & B. 199; overruling Cull \. Showcll, Amb. 727; Whitley v. Whitley, 31 Beav. 173; Coidts v. Ackworth, 9 L. R. Eq. 519; Griffith Boscau-en V. Scott, 26 Ch. D. 358. [Cases of no little difficulty sometime arise 466 STREATFIELD V. STREATFIELD. *411 whore a testator assumes to deal with property in which ho has but a limited interest. If the person who afit'Cts to dispose of the pro- perty has any interest at all," the Courts lean in favour of a construc- tion which would make him deal only with that to which he is en- titled, and not with that over which ho has no disposinj^ power.] And it is likewise immaterial that a party put to his election by a will, after the date thereof puts into settlement property belong- ing to himself, which the testator affects to dispose of by his will. See Middleton v. Windross, 1(3 L. E. Eq. 212, there a testator gave all his propei'ty equally among his three daughters, Sarah, Margaret, and Jane, and directed Jane, within twelve months after attaining twenty one, to bring into hotch-pot an estate to which she was en- titled under the will of her grandfather. On Jane's marriage, sub- sequently to the date of the will, she, at the instance and under the superintendence of her father, settled the estate upon herself and her husband successively for life, with remainder to the children of the marriage. Afterwards, by the testator's advice, the estate was sold by the trustees for 8000/. In a suit to administer the testator's estate, it was held by Wickens, V. C, that the 3000/., less the costs of the sale, ought to be brought into account in respect of Jane's share. MoroDver though part of the benefits proposed by a testator to be conferred upon another may fail, what remains will bo sufficient to constitute a case for election: Newman v. Neirman, 1 Bro. C. C. 186. [Commonly, election is voluntary, but equity has a jurisdic- tion to compel it ia some cases, as under wills, 2 Story's Eq. sec. 1076.] The mere recital in a will that a party is entitled to certain pro- perty, but not declaring the intention of the testator to give it to him, will not be sufficient to raise a case of election: Dashwood v. Peyton, IS Ves. 41; Forrester y. Gotten, Amb. 388; S. C, 1 Eden. 522, 535; Blake y. Bunbury, 1 Ves. jun. 514, 523. So in Box \. Barrett, 3 L. 11. Eq. 244, under a settlement the four daughters of a testator took equal shares subject to his life interest. The testa- tor, by his will, recited that under the settlement his tii'o daughters, Ellen and Emily, u'oidd become entitled to certain hereditaments, and that in making his will he had taken that ifito consideration, and had not devised them so large a share under his will, as he would have done had they not been so entitled. He then devised to his daughters, Ellen and Emily, certain estates, * and [*411 ] to his other daughters, Edith and Eliza, certain other estates of much larger vahie. The irill did not purjwrt todif^pose of or effect the settled estates. It was held by Loril Bom illy, M. R., that as the will did not purport to make any disposition of the settled estates, and was only made under a mistaken impression, Edith and Eliza were not put to their election. See also Lavgslow v. Langs- loiv (21 Beav. 552; Clackely. Lamb, 14 Beav. 482; Banks y. Banks, 17 Beav. 352; In re Folder's Trust, 27 Beav. 362). 467 * 412 STREATFIELD V. STREATFIELD. The difficulty of sustaining a case of election is always much greater where the testator has a partial interest in the property dealt with, than where he purports to devise an estate in which he has no interest at all {Lord RancUffe v. Lady Parkins, 6 Dow. 185; Henry v. Henry, 6 I. R. Eq. 286). For if the testator has some interest, the Court will lean as far as possible to a construction which would make him deal only with that to which he is entitled: Maddison v. Chapman, 1 J. & H. 470; Re BidirelVs Settlement, 11 W. R. (V.-C. K.) 16 1); and if a testator entitled to a share of a house or lands devised his interest or property therein it is clear that he only intended his own interest therein to pass: Henry v. Henry, 6 I. R. Eq. 286. Where however a testator entitled only to part of an estate uses words in devising it which show clearly that he intended to pass the entirety, if the owner of the other part takes other benefits by the will, he will be put to his election : as for instance where a per- son entitled only to a moiety of a house devises it as "all my mes- suage, now on lease to A. and in his occupation " {Padbury v. Clark, 2 Mac. & G. 298) especially if there are also directions to repair t ho property specifically devised (lb.), or if the testator in another part of the will correctly described a moiety when it was his intention to give a moiety, lb. And where the wife of a devisee alone was entitled to a particular property, a devise of it as " my interest in the A. property," will put the wife to her election: Whitley v. Whitley^ 31 Beav. 173; but see Read v. Crop, 1 Bro. C. C. 492; Wintour v. Clifton, 21 Beav. 447; 8 De G. Mac. & G. 644; Ch^osvefior \. Durston, 25 Beav. 97; Usticke v. Peters, 4 K. & J. 437. And a specific devise by a particular de- scription may be considered a sulficient indication of an intention of a partial owner of property to pass the entirety thereof (Fitz- simons v. Fitzsimons, 28 Beav. 417; Hoivells v. Jenkins, 2 J. & H. 706; 1 De G. Jo. & Sm. 617; Miller v. Thurgood, 33 Beav. 496; Wilkinson v. Dent, 6 L. R. Ch. App. 339; but see Chave v. Chave, 2 J. & H. 713, n. [ * 412 ] Upon the same principle where * a sum of 10,000Z. Consols being in settlement in trust for two sisters for life, and after their deaths two-thirds of the capital were in trust for their brother, and one-third in trust for their two sisters; and the brother bequeathed "the whole of his property" to trustees as to part on certain trusts for his sisters, and he afterwards bequeathed the property "including the 10,000Z. trust money," toother persons; it was held that the sisters must elect between the benefits given them by the will, and their interest in the 10,000Z. Consols. Sican V. Holmes, 19 Beav. 471. Where a testator is entitled only to a reversion in lands devised, the question sometimes arises whether he intended to include in the devise the immediate and absolute interest, or to confine it to his own estate only. Prima facie doubtless the testator would beun- 468 STREATFIELD V. STRKATFIELD. 'MIS derstood to refer only to what be had j)Ower to disj)ose of. He may, however, show a contrary intention, if for instance he has de- vised the laud in question upon limitations, which cannot or prob- ably would not ever take effect, or has ccniferred powers on the de- visees which they cannot or prolnibly will not ever be able to exer- cise, the intention to include the immediate interest will be suf- ficiently indicated to raise a case of election: Welbij v. Welbjj, 2 V. & B. 187, lUS; Wintour v. Clifton, 21 Beav. 447; 8 De G. Mac. & G. 041. So too a direction that an annuity is to be paid to a per- son for lif(>, out of lands of which the testator has only the reversion, sufficiently indicates an intention to dispose of the whole, Usticke v. Peter.% 4 K. & J. 437, 455. But such indications of intention will not prevail against an ex- press confirmation of the settlement creating the estates, which come before the testator's reversion; liancUffe v. Lady Parlqjns, G Dow, 149. But a confirmation of a part of the settlement leaves the remainder unconfirmed: Blake v. Bunbury, 1 Ve.s. Jun 514. A devise of an estate does not per se import an intention to devise it free from incumbrances to the devisee, so as to put the incum- brancers taking benefits under the will to their election (Stephens , v. Stephens, 1 Do G. k Jo. 62: 3 Drew. 097; Henry v. Henry, I. liep. Eq. 280; Maddison v. Chapman, 1 J. & H. 47()j. The intention to do so must appear conclusively from the words of the will, as for instance, if the testator repudiates the instrument creatino- the charge, and the dispositions of the will are inconsistent with that instrument, it will show that he intended the property to pass free from the charge: Sadlier v. Butler, 1 Ir. 11. Eq. 413,423. So if a testator entitled to an estate, subject to an incumbrance, secured by a long term, devise such estate for a term * to take effect immediately upon the death of the testator, [ * 413 ] and for the immediate purpose of raising money for the payment of annuities and legacies, the incumbrancers deriving other interests under the will, if they take by it, must not disappoint it, but must permit the estate to go in the new channel free from in- cumbrances as the testator intended: Blake v. Bunbury, 1 Ves. jun. 514, 523. A mere general devise will not comprehend property of which tlio devisor is not owner, although even before the "Wills Act, at the date of his will and his death he had no property of his own to which the words were applicable: Read v. Crop, 1 Bro. C. C. 402; Jervoise v. Jervoise, 17 Beav. 50(); Tliornton v. Thornton, 11 Ir. Ch. 474. Nor will the fact that the devise is to uses in strict settlement extend general words to more than the testator's interest thouo-h his devisable interest is only an estate ])our aidre vie: Cosby V. llrd Ashtonm, 10 Ir. Ch. Rep. 219, 226, 231. Although at one time a different opinion prevailed, it is now clearly settled that parol evidence, dehors the will, is not admissi- l)le for the purpose of showing that a testator considering property 469 * 414 strp:atfield v. streatfield. to be his own, which did not actually belong to him, intended to comprise it in a general devise or bequest: Blake v. Bunbury, 1 Ves. jun. 523; Stratton v. Best, 1 Yes. jun. 2&5: Butter y. Maclean, 4 Ves. 537; Pole v. Somers, 6 Ves. 322; Druce v. Denison, 6 Ves. 402; Doe v. Chichester, 4 Dow. 76, 89, 90; Clementson v. Gandy, 1 Kee, 309; Dixon v. Sampson, 2 Y. & C. C. C. 566; overruling Pul- teneyx. Lord Darlington, 2 Ves. jun. 544; 3 Ves. 384; 521,529; 6 Ves. 314, 322, 391, 399, 402. [Evidence dehors the instrument is not admissible: McGinnis v. McGinnis, 1 Kelly, 496; City of Phi la. V. Davis, 1 Wharton, 490; Miller v. Springer, '20 P. F. Smith, 273; Timberlake v. Parrish, 5 Dana, 345.] "Where a testator holds property with another in joint tenancy, since on his death without severance the whole will go to the sur- viving joint-tenant, it will not pass by a general bequest in the tes- tator's will to a third party so as to raise a case of election against the surviving joint tenant taking other benefits by the will. Thus, where a testator both before and'after making his will, transferred certain Government stock unto the names of himself and his wife, and by his will made a general bequest of all his funded p»roperty or estate of whatsoever kind to trustees for his wife for her life, and after her decease as therein mentioned, it was held that the will did not purport to dispose of the stock in terms sufficiently clear and distinct, or to put the wife upon her election {Dummer\. Pitcher, 2 My. & K. 262; Blonmart v. Player, 2 S. & S. 507; Crabt) V. Grahb, 1 My. & K. 511; 5 Sim. 35; Smith v. Lyne, 2 Y. & C. C. C. 345; Allen v. Anderson, 5 Hare, 163; Seaman v. Woods, 24 Beav. 372; and see Poole v. Adling, 10 W. R. 337); for [ '" 414 ] in order to raise a case * of election in such a case the stock in question must be specifically and clearly referred to: Coatesy. Stevens, 1 Y. & C. Ex. 66; Grosvenor y. Durston,2^ Beav. 97. But a testator may in his will itself show an intention under a general devise to dispose of lands which are not absolutely his own, as for instance by describing them as being in the occupation of himself or his tenants : See Honyivood v. Forster, 30 Beav. 14. [The doctrine of election is applicable to remote and contingent interests as well as to those which are certain and immediate: McQueen v. McQueen, 2 Jones Eq. 16.] So if a testator devise land in a particular locality, if there is any property of the testator answering the description it will be confined to that: RancUffe v. Lady Parky ns, 6 Dow. 149; Maddison V. Chapman, 1 J. & H. 470. The rule of election, the subject of this note, which depends, as before observed, upon an implied condition, will not .be excluded by the parties being expressly put to their election, as between the benefits conferred upon them, and sums due to them from the per- son conferring such benefits. See Wilkinson v. Dent, 6 L. B. Ch. App. 339. There, a testatrix devised -'all and singular the estate 470 STIIEATFIELD V. STUKATFIKLD. ■■ 415 and mines of Aroa," to trustees in trust for sale, and gave to T. Dent 10,()(K)/., which was to be taken in full satisfaction of any suras which she raight owe him at her decease, and to W. Dent 3000/., which she declared was to be taken in satisfaction of any rent-charge out of a certain part of her real estate. Her will con- tained the usual devise of trust and mortgage estates. She was in possession of the entirety of the Aroa estate, but was owner only of one moiety, being in possession of the other moiety by virtue of a mortgage, the money due upon which w^as subject to trusts, under which T. Dent and AV. Dent on her death became entitled, each to one fifth. It was held by the Lords Justices, affirming the decision of Lord Romilly, M. K., that T. Dent and W. Dent were put to their election between the benefits they took under the will, and their shares in the mortgage money. "The questicm," said Lord Justice James, "is, whether there is testamentary bounty to per- sons Avhose estates and rights are, under another part of the will, interfered with. It appears to me clear, that this question must be answered in the affirmative, though, before the amount of the bounty can be ascertained, the amount of the'claims which the legatees had against the testatrix must bo ascertained." See also Coutts v, Ac- worfh, 9 L. K. Eq. 519, and consider Sijuge v. Synge, 9 L. R. Ch. App. riS; varying the decision of James, L. J., sitting for a Y.-C. reported 15 L. 11. Eq. 389. But the ordinary doctrine of election may be exiluded by an ap- parent expression of intention by a testator that only one of the gifts, to an object of his bounty, is conditional on his giv- ing up * what a testator purports to take away from bim. [ * 415 ] For instance, if a testator had an eldest son, owner of a bit of property, and it would be convenient that this bit of property should go along with a property which the testator is devising to his second son. So, the testator devises this bit of property to the second son; and amongst other gifts to his eldest son, he gives him a piece of property which he states in his will to be in lieu of his bit of property which the testator purported to take away from him. In such case, the eldest son would merely be put to his choice be tween those two bits of property: East v. Cook, 2 Yes. 30, as ex- plained by Lord Justice James, in Wilkinson v. Dent, G L. 11. Ch. App. 341. See also Bar v. Bor, 3 Bro. P. C. Toml. ed. 1G7; Fijiche V. Fytche, 19 L. T. Rep. 343; Coote v. Gordon, 11 Ir. Rep. Eq. ISO. With regard to deeds, a question of election of a different kind to that applicable to wills may be raised, without their being, as in the case of wills, {ante, \\ 409) a clear intention on the part of the set- tlor or others to dispose of property which was not his own. The principle upon which cases of election arc raised in deeds being that which Lord Eedesdale in Birmingham v. Kincan, 2 S. & L. 444, 448, states to be the general foundation of the law of election, viz., that a person cannot accept and reject, or according to the terms of 471 *416 BTREATFIELD V. STREATFIELD. the Scotch law canuot approbate and reprobate, under the same in- strument. Thus if a person comes in directly under a settlement, and asks to have the benefit of such of its provisions as give him an advantage, and at the same time claims adversely to what was in- tended to be the rest of the settlement, because it was not binding, then a case of election arises. See Broicn v. Brown, 2 L. R. Eq. 481. There marriage articles executed when a lady was a minor contained a covenant by the husband to settle her interest in real and' . personal estate, including after- acquired property, on the usual trusts; and she died without having confirmed the articles, leaving her husband surviving, and an only child, her heiress-at-law, who claimed an interest under the articles in the personal estate and ,ilso claimed the real estate attempted to be settled as heiress-at-laAV of her mother. It was held by Lord Romilly, M. R., that the heiress- at-law was put to her election whether she would take under or against the settlement. " In the present case," said his Lordship, "the plaintiff comes in and claims directly under the limitation of the personal estate for her benefit under the settlement and claims the real estate adversely to the settlement on the ground that in the event the settlement did not bind it. I think, therefore, that [* 416 ] she claims beneficially under the settlement directly, ''and that consequently she must elect whether she will t-ake ad- versely to it or under it; if the latter, she must give effect to the whole of it as far as she can." And see also Anderson v. Abbott, 23 Beav. 457; Willonglibyy. Middleton, 2 J. & H. 344, 8 L. R. Ch. App. 590; Codrington v. Lindsay, 8 L. R. Ch. App. 578; S. C, nom. Cod- ringtony. Codrington, 7 L. R. Ho. Lo. 854; Griffith- Boscaicen v. Scott, 26 Ch. D. 358. [The doctrine of election rests not on the particular provisions of the instrument which raises the election, but on the presumption of a general intention in the authors in an instrument, that effect shall be given to every part of it: Wiltbanks v. Wiltbanks, 18 111. 17; Marriott v. Badger, 5 Md. 306; Clay r. Hart, 7 Dana, 1; Van Duyne V. Van Duyne, 1 McCart. 49.] Where, however, a person, as, for instance, an heir-at-law of an infaat, claims property as not being bound by a settlement made by the infant, if he has no benefit, and claims none under the settle- ment, he may assert his right, there being no case of election. {Campbell v. Ingilby, 21 Beav. 567; 1 De. G.'& Jo. 393: but see this case quoted 8 L. R. Ch. App. 593); and he is entitled to do this, though it may be, from extraneous circumstances, and by some sep- arate and independent cause, he has obtained some benefit under the settlement. Per Lord Romilly, M. R.,in Broirn v. Broivn, 2 L. R. Eq. 485. For the application of the principle of approbation and reproba- tion to voluntary deeds, see Llewellyn v. Mackworth, Barnard. Ch. Rep. 44-5; Anderson v. Abbott, 23 Beav. 457; to cases of contract for valuable consideration resting in articles, see Savill v. Savill, 2 Coll. 472 STREATFIELD V. STREATFIELD. * 417 721; Broivn v. Brown, 2 L. 11. Eq. 481; to coutracts, for value com- pletely executed by conveyance and assigniiienls, see B'ujlund v. Hud- dlcston, 3 Bro. C. C. 285 n. ; Cheticynd v. Meehcood, 4 Br(x P. C. 435, ed. 1784; Green v. Green, 2 Mer. 8(5; iJacoa v. Coshy, 4 De. G. A: Sm. 201; Mosley v. 11 arc/, 2art of: {Laivrence v. Lawrence, 2 Vern. 305; 2 Freem. 234, 235; 3 Bro. P. C. 483, Toml. Ed. See also Lemonv. Lemon, 8 Vin. Abr.' "Devisa^' pj^GO, pi. 45; French v. Davies, 2 Ves. jun. 572; Strahan v. /Ktton. 3 Ves. 249; Lord Dorchester v. Earl of Effing- ham, Coop. 319; Broivn v. Parry, 2 Dick. 085; Incledon v. North- cote, 3 Atk. 430, 436; and Gibson v. Gibsofi, 1 Drew. 42), or to trus- tees of the whole of the lands out of which she is dowablo upon trust for sale (Ellis v. Lewis, 3 Hare. 310), even although the inter- est of a part of the proceeds of the sale is given to her. (Ellis v. Leicis, 3 Hare, 310; Gibson v. Gibson, 1 Drew. 42, but see Parker V. Downing, 4 L. J. Ch. 198), or there is a direction that -the rents and profits are in the mean time to be applied in the same way as the income to arise from the produce of the sale: [lb. 57. Bend- 476 STREATFIELD V. STRKATFIELD. * 421 ing V. Bending, Z K. & J. 257), or a devise J)y tlio husband of an an nuity or rent-charge to the widow, charged upon such lands oven althougli he gives her a power of distress {Doirson v. Bell, 1 Kee. 70 1). fSee Pitis v. Snowilen, 1 13io. 0, C. 2'J2, n. ; Pearson \. Pear- son, 1 Bro. C. C. 291; Foster v. Cook, 3 Bro. C. C. 347; Dowson v. Bell, 1 Kee. 7(31; Harrison v. Harrison, 1 Kee. 705; and Holdichv. Holdich, 2 Y. & C. C. C. 18; Norcott v. Gordon, 14 Sim. 258, over- ruling Ar?zo?d V. Kempstead, Amb. 400; S. C, 2 Eden, 230; Jones V. Collier,* Amb. 730; and IFaAe v. Wake, 3 Bro. C. C. [ * 421 ] 255; 5^. C, 1 Ves. jun. 835), have been held not to be in- consistent with her right to have dower assigned to her by metes and bound's, and consequently that she was not obliged to elect be- tween dower and the benelits conferred upon her b}' the will. The case of Villa Real v. Lord Galivay, 1 Bro. C. C. 292, n., though sometimes cited as an authority for the proposition, that a widow will bo put to her election by the mere gift of a rent charge or an- nuity out of the lands of which she is dowable, was decided, it seems, upon the ground that certain directions in the will as to the management of the whole estate, the payment of the annuity, and the accumulations during the minority of a child, were inconsistent with the setting out a third part of the estate by metes and bounds. 8ee Birmingham v. Kiriran,2 S. & L. 453; Roadley v. Dixon, 3 Buss. 202; Hall v. Hill, 1 D. & AV. 103; S. C, 1 C. & L. 129; Dow- son v. Bell, 1 Kee. 701; Thompson v. N^elson, 1 Cox, 447; Harrison V, Harrison, 1 Kee. 705. A testator's dealings moreover in his lifetime cannot, it seems, be taken into consideration in consti'uing his will, Avith reference to the question whether he intended to exclude his wife from herdower, when the will contains no reference to those dealings. See Gibson V. Gibson, 1 Drew. 42. The provisions which have generally been held inconsistent with the widow's legal right to dower out of lands, are those which pre- scribe to the devisees thereof a certain mode of enjoyment, which shows the testator's intention that they should have the entirefij of the property. Thus, in Birmingham v. Kiriran, 2 S. & L. 444, the testator devised his house and demesne to trustees upon trust to permit his wife to enjoy the same for life, she paying 13s. yearly for every acre, to keep the house in repair, and not to let,.cxcept to the person who should be in possession of the remainder; and ho devised the I'esidueof his lands, subject to debts and legacies, to A. for life, remainder to B. in fee. The question Avas as to the wife's right of dower: iirst, in tho part devised to her; secondly, in the residue. "The result," said Lord Pedesdale, "of all the cases of implied in- tention seems to be that tho instrument must contain some provision inconsistent with the assertion of a right to demand a third of the land to bo set out by metes and bounds. . . . Now, in the present case, it is clear the assertion of a right of dower as to tho house and 'demesne would be inconsistent with the dispositions of the house ' 477 * 423 STREATFIELD V. STREATFIELD. and demesne contained iu the will ; and therefore the [*422 ] widow eaunot * have both. The house and demesne are devised with the rest of the estate to trustees. That devise taken simply might be subject to the widow's right of dower, but it is coupled with a direction that she shall have the enjoyment of the house and demesne, paying a rent of 13.9. an acre, which must be out of the iL-hole. Then follow directions that she shall keep the house and demesne in repair, that she shall not alien, except to the persons in remainder; directions which apply to the whole of the house and demesne, and could not be considered obligations on a person claim- in o- by dower. It was clearly, therefore, the intention of the testator, that the wife should enjoy the whole of the house and demesne under a right created by the will; and not a part of it under a right which she previously had, and part under the will Then comes the question, whether the implication extends to the rest of the estate? I cannot, on the whole of the case, think the testator has sufficiently manifested an intent that this beneficial interest in the h^use and demesne, given upon a reserved rent, and under certain conditions, should be considered as a bar of dower out of the rest of the estate. The will may be perfectly executed as to all other pur- poses without injury to the claim of dower, with respect to the rest of the estate; it may be mortgaged or sold, subject to that claim. " And see Goodfelloiv v. Goodfelloiv, 18 Beav. 350; see, however, Strahan v. Sutton, 3 Ves. 249. And a devise of a house or farm, in terms showing that a personal use and occupation of the whole by the devisee, was intended, has been held inconsistent with the .widow's right to dower out of that house or farm, and consequently put her to her election between her right to dower out of such house or farm, and other benefits con- ferred upon her by the will. 3Iiall V. Brain, 4 Madd. 119; Butcher V. Kemp. 5 Madd. 61; Roadleij v. Dixon, 3 Russ. 192. So moreover Avhere a power of leasing an estate is given to trus- tees, the widow has been put to her election between dower and the benefits conferred upon her by the will, inasmuch as the exercise of the power has been held to ba inconsistent, with the assertion of her right to dower by metes and bounds. (See Hall v. Hill, 1 Dr. & War. 94; 1 Conn. & L. 120,) although we have before seen a trust for sale was held not to be so, ante, p. 420. See alpo Reynard v. 5pe)zce, 4 Beav. 103 ; Taylor v. Taylor, 1 Y. & C. C. C. 727; O'Hara v. Chaine, 1' J. & L. G52; Holdich v. Holdich, 2 Y. & C. 22; Loives V. Lowes, 5 Hare, 401 ; Robinson v. Wilson, 13 Ir. Eq. Rep. 168, 183; Pepper \. Dixon, 17 Sim. 200; Grayson \. Deakin, [ * 423 ] 3 De Gex & Sm. 298; * Parker v. Soicerby, 1 Drew. 488 ; 4 De Gex, Mac. & G. 321 : Taylor v. Linley, 5 Jur. N. S. 701; 28 L. J. Ch. 686 (V.-C. S.); affirm o 1 on appeal, 29 L J. Ch. 534; Thompson v. Burra, 16 L. R. Eq. 592. A direction moreover to cut down timber on any part of the es- tate would, it seems, be entirely inconsistent with the wife's right to 478 I STKEATFIKLD V. STIIEATFIELD. '* 424 dowor. Ih. It must bo considered tliut Wurburton v. Warhurton, 2 Sm. & Giff. 103 (which seems to proceed upon a misapprehension of the judgrnent of Lord Si. Leonards in Hull v. /////, 1 Dru. & War. 94), is overruk^d. And a widow has been compelled to. elect between her free bench in customary lands, and benelits conferred upon her by a wili, where the lands out of which she was entitled to free bench were devised to third parties, with poxvers of management and leasing inconsis- tent with her enjoyment of free bench, although there was no cus- tum for such lands to bo set out for the free bench of a widow by metes and bounds : Thompson v. Biirra, 16 L. R. Eq. 502. But see AVilliams on Settlements, p. 95. It seems, moreover, that where a testator devises the whole of his property in general terms, and it is manifest, that it was his inten- tion, that one part of the property should not l)o subject to dower, it follows, that no part of the property should be so considered ; Miall V. Brain, 4 Madd. 12(3; Butcher v. Kemp, 5 Madd. 01 ; Road- ley V. Dixon, 3 Russ. 192. See also Hall v. Hill, 1 Dr. & War. 94; 1 C. &L. 120. Moreover, where a testator has devised lands, of which his widow is dowable, and other property, to her and othei-s in equal sluires, it has been held that the widow must elect, upon the ground that if she took her dower as well as what was given to her by the will, it would be inconsistent with that equality which the testator by his disposition therein intended. The first case is that of Chalniers v. Storill, 2 V. & B. 222. There the w^ords of the will were, " I give to my dear wife A., and my two children B. & C, all my estates whatsoever to be equally divided amongst them whether real or per- sonal." And the testator specified the property bequeathed by him as consisting of freehold ground-rents, money on mortgage, Ameri- can bank stock, an estate in America, &c. Sir W. Grant, M. R., held, that it was a case of election, the claim of dower being directly in- consistent with the disposition of the will. " The testator," ob- served his Honor, " directing all his real and personal estate to be equally divided, the same equality is intended to take place in the division of the real as of the personal estate, which cannot be if the widow first takes oat of it her dower, and then a third of the remaining two-thirds. Further, by describing *his[*424] English estates he excludes the ambiguity which Lord Thurlow in Foster v. Cook, 3 Bro. C. C. 347, imputes to the word ' my estate,' as not necessarily extending to the wife's dower." As to the last remark being one ground fc»r his Honor's decision, it is clear at the present day,' if not in the time of Lord Thurknv, that such a devise as " all my English estates " would merely mean and pass the testator's English estates, subject to dower. See Bead v. Crop. 1 Bro. C. C. 492; Doivson v. Bell, 1 Kee. 701; Gibson v. Gib- son, 1 Drew. 50. The other and principal ground upon which Chal- mers V. Storil was decided — viz., that equality, which was intended, 479 * 425 STREATFIELD V. STREATFIELD. would be destroyed by letting in the claim to dower — has been followed by subsequent judges. See Dickson v. Robinson, Jac. 503 ; Robeiis v. Smith, 1 S. & S. 513; Reynolds \. Tor in, 1 Kuss. 129; Goodfelloiu V. Goodfelloiv, 18 Beav. 356. Although Chalmers v. Storil has been so often recognised and followed as an authority, it scarcely seems to have been decided upon correct principles ; because when a person devises all his "estates" to his widow and children, "equally to be divided among them," he, according to the ordinary rules of construction, ought to be held to devise only what belonged to him — viz., the estate sub- ject to the widow's right to dower ; and an equal division of the estate after the assignment of the widow's dower by metes and bounds would fully satisfy the words of the will. See 1 Jarm. on Devises, 402; Ellis v. Leicis, 3 Hare, 315. In Bending v. Bending, 3 K. & J. 261, Sir W. Page-Wood, V.-C, stated that Chalmers v. Storil is imperfectly reported. If a man devises his real estate from his heir after giving his widow a provision in lieu, satisfaction and bar of dower, and the de- visee dies in the lifetime of the devisor, the heir will take the estate, but the widow will be obliged to elect. See Pickering v. Lord Stam- ford, 3 Yes. 337. But a gift by a testator to his widow in lieu of thirds of his personal property, does not preclude her from claiming her share of the personalty under the Statute of Distributions (22 & 23 Car. 2, c. 10) in the event of the failure of a bequest of that property. Pickering v. Lord Stamford, 3 Ves. 332, 492. See Sym2Json v. Hornsby, cited 3 Ves. 335; Wetherell v. Wetherell, 4 Giff. 1. But it seems that the principle of the decision in Pickering v. Stamford will not apply to a case where on the face of the will, there is an original intestacy as to a part of the personal estate : Lett V. Randall, 3 Sm. & G. 83, 91. A provision made for a wife, by a rent-charge "for her jointure, and in lieu of dower and thirds at common law," does not [*425] extend to *her share of the personal estate under the Statute of Distributions ; Colleton v. Garth, 6 Sim. 19. But the addition of the words "out of any real or personal estate" has been held to do so [Gurley v. Gurley, 8 C. & F. 743; and see Thompson v. Watts, 2 J. & H. !:91): and the words "in lieu of dower or thirds at common law, or othericise,'' have been held to ex- tend to a wife's free bench in copvholds : Nottley v. Palmer, 2 Drew. 93. With regard to widows married since the 1st of January, 1834, questions of election can scarcely arise, as under the Dower Act (3 & 4 Will. 4, c. 105) they are not entitled to dower of any land, absolutely disposed of by her husband in his lifetime or by his will (sect. 4) and it may be barred by a declaration in a deed (sect. 6) or will (sect. 7). And where a husband married after the Dower Act (3 & 4 WilL 480 STREATFIELD V. STREATFIKLD. * 120 4, c. 105) came into operation, devises any land out of wliicb bis widow would be entitled tu dower if tbe same were not so devised, or any estate or interest, tberein to or for the benefit of his vidow, sucb widow will not be entitled to dower out of or in any land of ber said busband, unless a contrary intention is declared by bis will (sect 9). On tlae otber band by tbe lOtb section of tbo Dower Act (3 & 4 Will. 4, c. 105) it is enacted, "tbat no gift or bequest made by any busband to or for tbe benefit of bis widow, of or out of bis personal estate, or of or out of any of bis land not liable to dower, sball de- feat or prejudice ber rigbt to dower unless a contrary intention sball be declared by bis will." Upon tbe construction of tbe Dower Act, tbe better opinion ap- pears to be tbat a husband may deprive bis wife of dower under tbe 4tb section by a mere general disposition of bis land (Lace// v. Hill, 19 L. R. Eq. 349) and tbat it is not necessary as was tbougbt by Lord Romilly ^L R., in auotbercase, Ibat tbe busband sbould point tbe land out specifically or designate it in some way: Rowland \. Cuthbertson, 8 L. R. Eq. 469. It is clear moreover tbat under tbe 9th section of tbe Act, a gen- eral disposition by tbe busband of bis land by will, under wbicb his wife takes a partial interest, will in tbe absenceof a contrary in- tention, be» sufficient to bar ber dower: Rowland v. Cuthbertson, 8 L. R. Eq. 466; Lacey v. Hill, 19 L. R. Eq. 346. And a general devise by a busband of bis real estate upon trust to sell and give bis widow a part of tbe proceeds even in tbe shape of part of the capital, or of any income of the proceeds to be in- vested as an annuity, is a gift of "an estate or interest" in the land for the benefit of the widow within the meaning of the 9th section, and will therefore be sufficient to deprive her of *dower: Lacey v. Hill, 19 L. R. Eq. 346, 350. [ *426 ] The result will be the same as to free bench upon a similar devise of copvbolds, though not surrendered to the uses of the will: Lacey v. Hill, 19 L. R. Eq. 346. The doctrine of election is not applicable to creditors. Tbus, if before the time when real estate was made assets for payment of debts a testator devised land in payment thereof, and bequeathed in favour of other persons funds, then assets for payment of debts, it was held that the creditors were not put to their election, and might assert their rights against such funds, without giving up their claim under the devise to the land. Kidney v. Coussmaker, 12 Ves. 136. See also Clark v. Guise, 2 Yes. 617. In Deg v. Deg, 2 P. AVras. 412, 418, where a father devised his own estate and an estate of his son's for the payment of debts, the son was allowed as a creditor of his father to share with the otber creditors in tbe ben- efit conferred upon them by the provision for payment of debts, without being obliged to give up his own estate. But these ques- tions will not arise often now, as real estates are liable to the pay- 31 WHITE ON EQUITY. 481 * 427 STREATFIELD V. STREATFIELD. ment of debts by simple contract as well as specialty. See 3 & 4 Will. 4 c. 104. The doctrine of election is applicable to appointments under a power. Thus where an express appointment is made to a stranger to the power, which is therefore void, and a benefit is conferred by the same instrument upon a person entitled in default of appoint- ment, the latter will be put to his election. Sug. Pow. 578, 8th ed. ; Whistler v. Webster, 2 Ves. Jun. 367; Reid v. Reid, 25 Beav. 469; Ex parte Bernard, 6 Ir. Ch. Rep. 133; Tomkynsv. Blane, 28 Beav. 422. If the donee of a non-exclusive power of appointment among a class to w^hom this property is limited in default of appointment, appoints exclusively to one object and by the same instrument con- fers benefits on the others, the latter will be put to their election. "Thus where a person has power to appoint to two, and he appoints to one only, and gives a legacy to the other, that is a case of elec- tion:" Sug. Pow. 589, 8th ed.; Wollen v. Tawwer, 5 Ves. 218; Vane V. Lord Dungannon, 2 S. & L. 118. So where a testator haVing power under a settlement to appoint the settled hereditaments to children of his first marriage only, ap- pointed the settled hereditaments (describing them as his own property,) in favor of a son o.f the first marriage, subject to a charge in favor of his other children, including the children of his second marriage, and he devised property of his own to the same son, subject to the same charges in favour of his other [ *427 J children "so as to equalize the shares of *all his children in all his property," it was held by Fry, J., that a case of election was raised in favour of the children of the second marriage: Wfdte v. White, 22 Ch. D. 555. Where the donee of a power makes a valid appointment to ob- jects of the power, and by a subsequent instrument after the expi- ration or exhaustion of the power purports to revoke the former appointment reappointing in favour of another object, and by the same instrument gives benefits to the former appointees, the latter will be put to their election. See Cooper v. Cooper, 6 L. R. Ch. App. 15; 7 L. R. Ho. Lo. 53. So where a person having a power to appoint, delegates the power (which he has really no right to do) to another, and by the same instrument confers benefits upon the objects of the power, they can- not retain the benefits given to them by the will and also claim the property against the execution of the power so improperly dele- gated: Ingram v. Ingrain, cited 1 Ves. 259. The doctrine of election is also applicable where there is a revo- cation in excess of the power, and benefits are conferred upon the person disappointed by such revocation. Thus where an appoint- ment was made of the interest of a fund to a person for life irrevo- cably, and after his decease the fund was appointed to others with power to the appointor, by deed or will, to revoke the appointments 482 I STREATFIELD V. STREATFIELD. * 423 subsequent to the life interest, and the appointor afterwards, siip- posin<^ lie had complete donainion over the fund, revoked all the appointments before made, <]jiving the person entitled to the interest of the fund for life part of it al)solutely, and the remainder of the fund to others, the person fo whom, under the first appointuient, a life interest was given in the whole fund, was compelled to elect be- tween the life interest in the whole fund, and his interest in part of the fund given to him al)solutely, under the second appoint- ment. Contts V. Acicorth, 9 L. R. Eq. 519. And it was directed that the costs .should be borne by each share in proportion. In other words the taker of each fchare was to bear the proportion of the burthen falling to the share he took. lb. 532. In no instance however has a case of election been raised W'here a testator gave no property absolutely his own to an object of the power out of which, in the event of his not acquiescing in an ap pointmeut by the donee to a person not an object of the power, the latter conld bo compensated. In re Fowler's Trust, 27 Beav. 302; Arm strong v. Lynn, 9 I. R. E. 186. Neither will the non-execution of a power upon an erroneous im- pression stated in the will that, by its non-execution one person * who is a legatee will divide the fund, the subject [* 428 ] of the power, equally with another: Langslow v. Langs- loiv, 21 Beav. 552. No case of election arises between two appointments under lim- ited powers. Thus in lie AjolMs Trust, 13 \Y. R. (V.-C. W.) 10()2, A. had power to appoint by will a fund to any one or more of his children. He had under a distinct instrument power to appoint another fund amongst his children, but not exclusively to any one of them, and they were to take equally in default of appointment. He had five children. By his will ho exercised the first power in favour of S., one of his children, and the second in favour of two others of his children. The second power was accordingly badly exercised, and S. took a share in default of appointment. It was held by Sir W. Page- Wood, V. C. that no case of election was raised against S. See also In re Folder's Trust, 27 Beav. S62. Where moreover there is an attempt to execute a power in viola- tion of the rules of law no question of election will arise. Thus where a person makes an appointment void for remoteness to a per- son not an object of this power, although by the same instrument he gives property of his own to the persons entitled in default of appointment, the latter will not be compelled to elect, for in such case the instrument must bo rea 1 as if the invalid appointment were not in it at all: Wollaston v. King, 8 L R. Eq. 105. 175. See In re Warren's Trusts. 20 Ch. D. 208, 219, where it was said by Pear- son, J., in a similar case, "How can there bo any question of elec- tion? I mast read the will as if the invalid appointment were not in it at all. The ordinary case of election is where a testator at- tempts to give by will property which belongs to some one else. 4S3 * 429 STREATFIELD V. STREATFIELD. Such a gift is not ex facie void. Id the present case it is the law which disappoints the appointee." So where a person appoints simply to objects of the power, and gives them property of his own, subsequently directing them to settle the property so appointed on persons not objects of the power, such direction will not raise a case of election {King v. King, 15 Ir. Gh. Rep. 479, overruling Moriarity v. Martin, 3 Ir. Ch. Rep. 26). Secus where there is a clause of forfeiture of the legacies on non-compliance with such direction {lb). Merely precatory words, requesting appointees, objects of the power, to leave the fund appointed to others, not objects of the power, will not raise a case of election. Blacket v. Lamb, 14 Beav. 482; Kanipf v. Jones, 2 Keen, 756; Carver v. Boivles, 2 Russ. &, My. 301. In order to raise a case of election by the execution of a [ * 429] power there must be an absolute and * direct appointment to strangers to the power. And it has been recently de- cided that where there is an absolute appointment by will in favour of a proper object of the power, and that appointment is followed by attempts to modify the interest so appointed in a manner which the law will not allow, the will must be read as if all the passages in which such attempts are made were swept out of it, not only so far as they attempt to regulate the quantum of interest to be en- joyed by the appointee in the settled property, but also so far as they might otherwise have been relied upon as raising a case of election: Woolridge v. Woolridge, 1 Johns. 63. See, also, Church ill v. Churchill, 5 L. R. Eq. 44. See also In re Warren's Trusts, 26 Ch. D. 208. Compulsory election and privileges of persons compelled to elect. ] — Election may be compulsory, as where a person is compelled to elect by a decree of the Court of Chancery. Persons compelled to elect are entitled previously to ascertain the relative value of their own property, and that conferred upon them, and time will be allowed to them for that purpose: (Newman v. Newman, 1 Bro. C. C. 186; Wake V. Wake, 3 Bro. C. C. 255; 1 Ves. jun. 335; Chalmers \. Storil, 2 Y. & B. 222; Render V. Rose, dY. Wms. 124, n.; Whistler y. Whistler, 2 Ves. jun. 367, 371; Codrington v. Lindsay, 8 L. R. Ch. App. 593;) and, if necessary, accounts will be directed to betaken. Boynton v. Boynton, 1 Bro. C. C. 445. As to the apportionment of debts upon difPerent funds, see Cooper V. Cooper, 6 L. R. Ch. App. 15. A persoa compelled to elect might formerly in general file a bill to have all necessary accounts taken (Butricke v. Brodhurst, 3 Bro. C. C. 88; 1 Ves. jun. 171; Pusey v. Desboumne, 3 P. Wms. 315) ; but a bill was not always necessary for this purpose, as the Coui-t might and mav still, when there is a cause in existence relating to the same matter, direct such inquiries as may be necessary to guide the per- 484 STREATFIELD V. STIIEATFIELD. * 430 son put to his election in exercising it: Douglas v. Douglas, 12 L. K. Eq. 017. And an election made under a mistaken impression will not be binding, for in all cases of election the Court, while it enforces the rule of equity, that the party shall not avail himsdf of l)oth his claims, is anxious to secure to him the option of either, and not to hold him concluded by equivocal acts, performed, perhaps in ignor- ance of the value of the funds: Puseij v. Desbouvrie, 8 P. Wms. 315; Boynton v. Boynton, 1 Bro. C. C. 445; Wake v. Wake, 3 Bro. C. C. 255; Kidney y. Coussmaker, 12 Ves. 130; Dillon v. Parker, 1 Swanst. 381, and note. A person who does not elect * within the time limited, [ * 430] will be considered as having elected to take against the in- strument i)utting him to his election. See the decree in Streatfield V. Streatfield, 1 Swanst. 447. Although before an heir can be put to his election he is entitled to know everything which concerns the situation and the value of the property in reference to which he may be required to make his elec- tion, there is no authority for the proposition that where an heir has chosen deliberately to confirm a devise of lands, which, without his confirmation, would be invalid, there must be, in order to enable the Court to hold that those claiming under him are bound by his con- firmation, some distinct evidence of his knowledge of his rights: Deivar v. Maitland, 2 L. Jx. Eq. 838. Voluntary election and ichat will he considered as amounting to vol- untary election.] — Election is either exj^ress (about which it is un- necessary to say anything) or implied. And here considerable dif- ficulty often arises in deciding what acts of acceptance or acquies- cence amount to an implied election; and this question, it seems, must be determined more upon the circumstances cf each particular case, than upon any general principle. [A silent acquiescence in the changed condition of things, upon the faith of which other parties have acted and acquired rights which it would be inequitable to disturb, will amount to an election: Clay V. Hart, 7 Dana, 1; Fulton v. Moore, 1 Casey, 408; Caston?;. Caston, 2 Rich. Eq. 1; Stark v. Hunton, Saxt. Ch. *21G.] There is generally an inquiry directed as to whom the premises (belonging to another), in the testator's will mentioned, belonged to at his death, and if they belonged to A. (a person to whom he had given by will benefits), whether A. had elected in his lifetime to take under the testator's will: Peck v. Peck, 2 Seton on Decrees, 934, 4th ed. On a question of election by a party bound fo elect between two properties, it is necessary to inquire into the circumstances of the property against which the election is supposed to have been made; for if a party so situated, not being called on to elect, continues in the receipt of the rents and profits of both properties, such receipt can- 4S5 * 431 STREATFIELD V. STREATFIELD. Bot be construed into an election to take the one and reject the other; and, in like jiianner, if one of the properties does not yield rent to be received, and the party liable to elect deals with it as his own, — as, for instance, by mortgaging it (particularly if this be done with the knowledge and concurrence of the party entitled to call for an election), — such dealing will be unavailable to prove an actual elec- tion ns against the receipt of the rent of the other property: Pad- bury \. Clark, 2 Mac. & G. 298; and see Morgan \. Morgan, 4Ir. Ch. Kep. C06, G14. As we have before seen, any acts, to be binding upon a person, must be done with a knowledge of his rights. They must also be done with the knowledge of the right to elect: [ * 431 ] {Briscoe v. Briscoe, 7 Ir. ^-Eq. R. VI?,; 1 Jo. & L. 334; Sweet- man V. Sweetman, 2 I. R. Eq. 141,) and with the intention of electing: Strafford v. Powell, 1 Ball & B. 1; Dillon v. Parker, 1 SwanstTsSO, 38 /; Edicards v. Morgan, M'Clell. 541; 13 Price, 782; 1 Bli. N. S. 401; Worthington \. Wiginton, 20 Beav. 67; Wintour v. Clifton, 21 Beav. 447, 468; 8 De G. Mac. & G. 641 ; Campbell v. J?i- gilbij, 21 Beav. 582; }VilsonY. Thornbiirjj, 10 L. R. Ch. App. 239. It is difficult to lay down any rule as to what length of time, after acts done by which election is usually implied, will be binding upon a party, and prevent him from setting up the plea of igr orance of his rights. In Wake v. Woke, 1 Ves. jun. 335, it was held that three years' receipt of a legacy and annuity, under a will by a widow in ignorance of her rights did not preclude her from making her election; in Reynard v. Spence, 4 Beav. 103, where a widow had re- ceived an annuity for live years it was held, phe had not elected. See also Bidricke v. Brodhurst, 3 Bro. C. C. 90; S. C, 1 Ves. jun. 172; Dillon v. Parker, 1 Swanst. 386; Fytche v. Fytche, 7 L. R. Eq. 494; and in Sopivith v. Maugham, 30 Beav. 235, where a widow had for sixteen years enjoyed a provision under a will in ignorance of her right to dower, in express satisfaction of which the provision was made for her, she was held not to have elected. But a person may by his acts suffer specific enjoyment by others until it becomes inequitable to disturb it: Tibbitts v. Tibbiits, 19 Ves. 663; Deu-ar\. Maitland, 2 L. R. Eq. 834. A sale of his own property, devised by the testator to others, will be considered an election to take against the will by a person taking a beneficial interest under the will: Rogers v. Jones, 3 Ch. D. 688. Acts of implied election which will bind a party will also bind his representatives: (Earl of Northumberland v. Earl of Aylesford, Amb. 540, 657; Dewar v. Maitland, 2 L. R. Eq. 834. See also 2 Ves. 525; Strafford v. Poivell, 1 Ball. & B. 1; Ardesoifex. Bennett, 2 Dick. 463;) and some acts, which it appears would not be binding upon hira if insisted upon in his lifetime, will bind his representa- tives " iipon that principle only," as observed by Lord Hardtvicke, "not to disturb things long acquiesced in in families, upon the foot of rights which those, in whose place they stand, never called in question: Tomkyns v. Ladbroke, 2 Ves. 593; Worthington v. }Vig- 486 STREATPIELD t) STREATFIELD. * 432 ington. 20 Boav. 67; Sopivith v. Maugham, 30 Boa v. 235, 239; Whitley v. Whitley, 31 Boa v. 173. But if the ropresei^,tativos of those who were bound to elect and ■who have accepted benefits under the instrument imposing the obligation of election, but * without ex[)licitly elect- [ * 432 J incr, can off'U' comi)ensatioii, and place the other l)arty in the same situation as if those benefits had not been accepted, they may renounce them and determine for themselves: Dillon v. Parker, 1 Swanst. 385; Moore v, Butler, 2 S. & L. 208; Tyfison v. Benyon, 2 Bro. C. C. 5. A person entitled in remainder to an interest in property is not bound by the election of a party having a prior interest: Ward v. BaugJi, 4 Ves. 043; Longv. Long, 5 Ves. 425; Hutchison v. Skelton, 2 Macq. H. L. Cas. 492, 495. Every member of a class, moreover, as for instance, next of kin, has a distinct right to elect, and will not be bound by the election of the majority nor of the administrator: Fytche v. Fytche, 7 L. R. Eq. 494. Where an election was doubtful it has been sent to a jury to de- termine that fact: Roundell v. Currer, 2 Bro. C. C. 73; 1 Swanst. 383 n. Where upon an inquiry it has been found that a deceased bene- ficiary under the will of a testator has elected to take under his will, there" will be a declaration made by the Court, that the premises belonging to such beneficiary, in the testator's will mentioned, passed in equity to the devisee thereof, and that the heir-at-law or devisee of the beneficiary is a trustee thereof for the devisee under the will: see Peck v. Peck, 2 Seton on Decrees, 934, 4th ed. So where a defendant has elected to take estates appointed by the will of the testator, who has bequeathed to others the defendant's share of funds in settlement, the defendant will be directed to exe- cute a proper release of his share and interest in the settlement to the trustees thereof, such release to be settled by the judge: Fleming V. Buchanan, 2 Seton on Decrees, 935, 4th ed. [If a person does not have a full knowledge of his rights, and of all the attendant cir- cumstances he cannot make a valid election: Dickinson y. Dickin- son, 11 P. F. Smith, 405; Anderson's Appeal, 12 Casey, 476.] Election in the case of parties under disabilities. — Where an in- fant is bound to elect, in some instances, as in Streatfield v. Streat- field, the period of election is deferred until after he comes of age. See BougMon v. Boughton, 2 Ves. 12; Bor\. Bor, 3 Bro. P. C. 173, Toml. Ed. In other cases there has lieen a reference to inquire what would beioosh beneficial to the infant: Chetwynd v. Fleetwood, 1 Bro. P. C 300, Toml. Ed. ; 2 S. & L. 266; Goodwyn v. Goodwyn, 1 Ves. 228; Biglandv. Hnddlesfone, 3 Bro. C. C. 285, n.; Grettonw Haward, 1 Swanst. 413; Ebrington v. Ebringtou, 5 Madd. 117; Ash- burnhain v. Ashburnharn, 13 *Jur. 1111; Prole v. Soady,8 W. R. 487 * 433 STREATFIELD V. STREATFIELD. (V.-C. S.) 131; Brown \. Brown, 2 Lt. R. Eq. 481; and see Griggs V. Gibson, 1 L. R. Eq. 685; Bennett v. Houldsworth, 6 Ch. P. G7l; 2 Seton, 933, 936, 4th ed. In others where the Court had suffi- cient materials before it an order has been made for an [ *433] infant to * elect without a reference to Chambers: Blunt V. Lack, 26 L. J. Ch. 148; Lamb v. Lamb, 5 W. R. (V.-C. K.) 772; 2 Seton, 933, 936, 4th ed. The practice as to election by married women in the Court of Chancery also varies: see Mr. Swanston's note to Gretton v. Ha- rvard, 1 Swanst. 413; but in general there will be an inquiry what is most beneficial for them, and they will be required to elect within a limited time. See Pulteney v. Darlington, 7 Bro. P. C. 546, 547, Toml. ed. ; 2 Ves. jun. 560; 3 Ves. 385; Vane v. Lord Dungannon, 2 S. & L. 133; Davis v. Page, 9 Ves. 350; Cooper v. Cooper, 7 L. R. Ho. Lo. 53, 67, 79. In Wilson v. Lord John Townsend, 2 Ves. jun. 693, Lord Rosslyn, although he admitted that to be the general practice, dismissed the bill without a reference, as the married women "had manifestly a much better interest than the testatrix intended." See also Porsons v. Dunne, 2 Ves. 60, Belt's Suppl. 276. A married woman may elect so as to affect her interest in real property; and where she has once so elected, though without deed acknowledged, the Court can order a conveyance accordingly; the ground of such order being that no married woman shall avail her- self of a fraud. Having elected, she is bound, and the transaction will be enforced against the heir: Ardesoifew. Bennet, 2 Dick. 463; Barroiv v. Barrow, 4 K. & J. 409; Willoughby v. Middleton, 2 J. & H. 344; Sisson v. Giles, 11 W. R. (V.-C. S.) 558; Satill v. Savill, 2 Coll. 721; Anderson v. Abbott, 23 Beav. 457; Smith v. Lucas, 18 Ch. D. 531; Wilder v. Pigott, 22 Ch. D. 263; In re Quead's Trusts, W. N. 1885, May 3, 99; sed vide Campbell v. Ingilby, 21 Beav. 567, which may be considered as contrary to the current of authorities on this point. Lord Cottenhani, however, was of opinion in the case of Frank v. Frank, 3 My. & Cr. 171, that a feme covert was not competent during the coverture t® elect between a jointure made to her after her marriage and her dower at common law, be- cause there is an express provision in the Statute of Uses (27 Hen. 8, c. 10), that her election shall be made at the time when the right is claimed, that is to say, after her husband's death : sec. 10. See also Anon., Dyer, 358, b. Ordinarily a married woman cannot elect to relinquish a rever- sionary chose in action: Robiyison v. WheeluTight, 6 De G. Mac. & G. 535, 546; Whittle v. Henning, 2 Ph. 731; Williams v. Mayne, 1 I. R. Eq. 519, overruling Wall v. Wall, 15 Sim. 513. But see now 20 & 21 Vict. c. 57 (Malins' Act), fully noticed in the note to Ryall v. Rowles, vol. ii. post. It would seem, however, that npon principle a married woman, in the case of a reversionary interest in personalty, equally as in 488 BTREATFIELD V. STREATFIELD. * 435 the ease of real property (at * any rate where under [ * 434 ] Malins' Act (20 & 21 Vict. c. 57), she has power to dispose, in manner therein mentioned, of such revf^rs^ionary interest) would not be allowed to avail herself of a fraud, and might therefore be held to have made her election even when such reversionary interest iti personalty was thereby affected: Wilder v. Pigott, 22 Ch. D. 203; see, however, Williams v. Mayne, 1 I. R. E(|. 519. And it seems that a restraint upon anticipation will prevent a case of election from arising because the Court cannot give com- pensation oiit of the life interest of a married woman affected by it, to persons who would have been disappointed by her election: Smith V. Lucas, 18 Ch. D. 531; In re Wheatley, Smith v. Spence, 27 Ch. D. GOG; sed vide In re Vardon's Trusts, W. N. 29th Nov. 1884, p. 21 G. If a married woman becomes of unsound mind before electing, though not found so by inquisition, the Court has jurisdiction to make an election for her if it appears to be for her benefit: Jones v. Lloijd, IS L. R. Eq. 265; Wilder v. Pigott, 22 Ch. D. 263. Parties disai)pointed by the election of the heir to take against a will by requiring the executors to complete a contract for an estate entered into by the testator, have no lien on the estate for the amount of the benefits the heir has taken under the wall, but after his death they are entitled to prove against his estate for the amount which he has so received: Greeincood v. Penny, 12 Beav. 402. Death of person to elect without electing.] — If a person under an obligation to elect dies without having done so, and property which he takes beneficially under the will, and his own property bequeath- ed to strangers, go the same way; if, for instance, both be personal property vesting either in his legatees, or in the case of the intestacy of such person, in his next of kin; such persons would be entitled to elect: Fytche v. Fytche, 7 L. R. Eq. 490. And each of the next of kin has a separate right of election, so that neither the election of the majority nor that of the heir or ad- ministrator binds the others. lb. . Those of the next of kin who elect to take under the will, will be entitled to all the beneficial interest by the will confeiTed on the intestate. lb. But any of the next of kin electing to take against the will must not only give up all the benefits under it, but is bound to bring into account the interest of the person through whom he claims. See Fytche v. Fytche, 7 L. R. Eq. 494. There a testator made various bequests in favour of his wife, including some property * to which she was entitled in her own right, and he also [ *435] gave her an annuity of 300/., charged on specified real es- tate, in lieu of dower and freebench. The wife survived her hus- band, and during her life received the benefits given her by the will, but never elected whether to take under or against the' will, 489 * 436 STREATFIELD V. STREATFIELD. and died intestate, leaving four nest of kin, three of whom elected to take nnder the will, while the fourth, who was her administrator, elected to take against it. It was held by Maims, V.-C, that each of the next of kin had a separate right of election; that neither the election of the majority, nor one being also heir and adminis- trator, bound the others; that the next of kin electing to take ao-aiast the will, was, as between himself and the others taking under the will, bound to bring into account every benefit given by the will, and therefore everything ought to be brought into account, which the widow took under the will, including the 300Z. a year. On the other hand credit ought to be given to the administrator electing to take against the will for one- fourth of the dower to which the widow would have been entitled, and in lieu of which the 300Z. annuity was bequeathed to her. (See also Rodgers v. Jones, 3 Ch. D. 688, ante, p. 407.) Where a person dies without having made any election between ■ his own property (personalty bequeathed to legatees), and real estate which he took under the will, and which go different ways, viz., the former to the executors and the latter to his heir-at-law or devisee, there can be no election on the part either of the executor on the one hand, or the heir-at-law on the other hand; each will retain the property to which he is legally entitled; but the party taking the testator's own property, i. e., in the case supposed, the realty, will be under an obligation to make good what is sufficient to satisfy the disappointed legatees, and the amount suificient for that purpose will be a charge on the real estate: Pickersgillv. Rod- ger, 5 Ch. D. 163, 175. Legacy and succession deities.] — It may be here mentioned that under the Legacy Duty Acts (36 Geo. 3. c. 52, and 45 Geo. 3, e. 28), no lecracy duty is payable on the value of personal estate given up by one legatee to another person unc'^er the doctrine of election; but where a testator devises his own real estate to one person, and be- queaths a sum of money belonging to such person to a third party, legacy duty will be payable on such sum as being in effect payable out of or charged upon the testator's real estate: Laurie \. Chdton, 15 Beav. 131. It seems, however, that in the former of these cases succession duty would be payable, by the person to whom the per- [ * 436 ] soual * estate is given up, as upon a succession derived by him from the testator, within the terms of sect. 2 of the Succession Duty Act (16 & 17 Vict. c. 51); see Hanson on Probate, Legacy, and Succession Duties, pp. 6, 8, 3rd ed. ; and in the latter of these cases the devisee of the real estate would, after the legacy duty has been paid upon the sum so in effect charged upon the de- vised estate, be entitled to a corresponding deduction from the value of his succession: lb. 131. . 490 STREATFIELD V. STREATFIELD, * 436 [^Doctrine of Election Restated. — The principal on whicli tho docUine of election is based, is that a donee shall not be allowed to approbate and reprobate, and if he approbates he shall do all that lies in his power to confirm (he instrument which he appro- bates. The election may be either express or implied. An express election is where tliere has been a condition annexed to a gift, and compliance with which is distinctly made one of the terms upon which gift can alone bo enjoyed. Thus, if a testator by his will directs that a gift be given to A. if he conveys a certain tract of land to B., which land is the property of A. Now A. must elect, and if he refuses to convey the land to B., then he forfeits the gift made to him by tho testator. "Where there is an express condition, a non-com[)liance causes a forfeiture. An illustration of an implied election is where a testator gives money or land to A., and then by the same instrument gives something which is A.'s to a third per- son. In this case there is an implied duty to elect, and if A. re- fuses to make the gift to tho third person as directed by the testa- tor, he does not forfeit the gift to him, but is compelled to give up so much of it as will amount to compensation for the disappoint- ment beneliciary. The distinction between these two classes be- comes of practical importance where the doctrine of election is at- tempted to be applied to the case of void devises. The doctrine of election applies to property of every kind, and to interests of every description, and it does not make any difference whether the donor does or does not know that he has no right to dispose of the prop- erty in respect of which the election has been made. A case which is sometimes confounded with the doctrine of election is where a a testator makes two distinct gifts of his own property, one beneli- cial and the other onerous, and tho question is Avhether the donee is entitled to elect to accept the first and disclaim the second. The general rule in sucli cases appears to bo that the two legacies or gifts are distinct and separate and the beaeiiciary may take one and reject the other, but this right may be rebutted by anything in the will which sbows that the testator did not intend this option to exist. If there is a single and individual gift, that is 2irivid facie evidence that the gift should be regarded as one. Cases arising under this class are wholly distinct from the doctrine of election. In order to raise an election, the testator must dispose of his own property and also effect to dispose of that which is not his own if both of these requisites do not occur; there is no case for an election, it is further necessary that the two-fold gift should be made by the same instrument. The party who elects, must in order to make a valid election, have adequate information, in regard to the value of the two pieces of property between which he is to choose, and the Court will assist him in determining their respective values. An election can only be made by a person who it sni jii7'is and a Court of equity will oftentimes elect for the benefit of infants and femes covert. 491 * 437 ALEYN V. BELCHIER. The right of choice which the donee has when made, binds only himself and does not affect the interest of donees in remainder. The doctrine of election does not apply to creditors, in cases where property is charged by will with debts, because the creditors can claim the benefit of the charges and yet collect their debts out of the other assets. An election may be made by some silent acquies- cence, or some decisive act. A bare acquiescence, without a delib- erate and intelligent choice made under a full and free knowledge of all the circumstances, and of the party's rights will not be deemed an election. The doctrine also applies to the exercise of powers of appointment.] [ * 437] *ALEYN v. BELCHIER. July 5th, 1758. [rEPOETED 1 EDEN, 132.] {S. C. Sitgd. on Pmv. App. Amb. MSS. Reg. Lib. A. llhl,fol. 432.] Feaud upon a Power.] — Power of jointuring executed in favour of a wife, but ivith an agreement that the wife should only receive a part as an annuity for her oxen benefit, and that the residue should be applied to the payment of the husband's debts: held a fraud upon the power, and the execution set aside, except so far as related to the annuity ; the bill containing a submission to pay it, and only seeking relief against the other objects of the appoint- ment. The Rev. Thomas Aleyn being seised of a real estate in Essex, of the yearly value of 540/., subject to a mortgage for a term of 500 years to Sir Charles Palmer for 500 Z., and having a nephew, Ed- mund Aleyn, and two brothers, the plaintiff, Giles Aleyn, and Wil- liam, who was a defendant, by his will, bearing date the 28th of May, 1740, devised the same to Eyre and Bragg, in trust by sale or mortgage to raise money, and pay his debts and legacies, and to permit his wife to receive the rents and prohts of the residue for 492 ALEYX V. BELCIIIER, * 438 her life, and after her death in trust to convey to his nephew Ed- mund for life, with remainder to his first and other sons in tail male, with proper limitations to support contingent remainders, with a poiver to his neplieiv to make a jointure on any icoman he should then after marry, for her life, in bar of dower, with powers to provide for younger children, and to make leases, with remainder to the testator's brother Giles for life; remainder to his first and other sons in tail male; remainder to his brother William for life; remainder to his first and other sons in tail male; remain- der to his *owa right heirs; he gave his brother, the plain- [* 438 ] tiff, an annuity of 80^ a year for his life, to be paid out of his estate, to be increased to 50Z. a year in case his nephew should survive his, the testator's wife. A bill was filed soon after the testator's death by the widow, and on the 14tb of February, 1749, a decree made to establish the will, and for payment of debts and legacies by mortgage or sale in the usual way. The master reported, there was duo for debts and lega- cies 1510^. Is. lOd., which he approved to be raised by mortgage. The widow died in April, 1750, and Edmund became entitled to the possession of the estate. The defendant, "William Belchier, having advanced money to pay off the incumbrances, a mortgage, bearing date the 26th and 27th of June, 1750, was made of the estate to him in fee, and the term for years was assigned to John Belchier in trust for W. Belchier. Edmund was very extravagant, and became indebted to William Belchier in the sum of 1760Z. On the 4th of June, 1750, Edmund married the defendant Jane, who was a low woman without fortune, and no provision for her was either made or agreed to be made; but, soon after the marriage, by articles of agreement, bearing date the 1st of August, 1750, and made between Edmund Aleyn and his wife of the one part, and William Belchier of the other, reciting the will of Thomas Aleyn, giving Edmund a power of jointuring, and that ho and Jane were lately married, and that he was indebted to William Belchier in the sum of 1760Z. besides the mortgage, Edmund Aleyn, in satisfaction and discharge of the said sum of 1760?., and in consideration of the several annuities and money thereinafter agreed to be paid, cove- nanted within six months to procure an effectual conveyance and settlement to be made by the trustees in Thomas Aleyn's will, and immediately after such settlement should be made, to appoint tb*» 493 * 440 ALEYN V. BELCUIER. whole estate to his wife for her life, in case she should survive him, for her jointure; and that he and his wife, as soon as they should become respectively seised of the legal estate of freehold, [ * 439 ] *would, by fine and conveyances, convey and assure all the said premises by the said will devised and intended to be settled, unto and to the use of William Beichier, his heirs and as- signs, during the lives of Edmund Aleyn and Jane his wife, and the longer liver of them; and in consideration thereof, William Beichier covenanted that, in case the said settlement should be perfected, whereby the estates should become well vested in him and his heirs, for the lives of Edmund and Jane his wife, and the longer liver of them, to pay the several annuities after mentioned, namely: to Jane Aleyn, during the joint lives of her and Edmund her husband, 60Z. a year, clear of all deductions, for her separate use; to Edmuud Aleyn, for his life, in case he should survive Jane his wife, GOZ. a year, clear of all deductions; and to Jane, in case she shoul^ sur- vive Edmund her husband, for her life, lOOZ. a year, clear of all de- ductions; and to pay to John Miles, son of Jane by a former hus- band, 105Z. at the age of twenty-one years; and also to pay Jane 5Z. yearly towards his maintenance and education, till the 105Z. should become payable. The estate was conveyed by lease and release of Gth and 7th of August, 1750, to the uses of Thomas Aleyn's will pursuant to the decree ; and by deed, dated 8th August, 1750, reciting the convey- ance and power to jointure, Edmund Aleyn, in consideration of the marriage, and in order to make a provision for Jane, his wife, ap- pointed the whole estate to Jane, his wife, for a jointure, subject to the payment of the annuities given by the will of Thomas Aleyn, and of the mortgage of 1516Z. Is. lOcZ. and interest. On the lOth of August, 1750, Edmund Aleyn and Jane, his wife, executed a deed, by which Edmund covenanted with George Town- send, that he and his wife would levy a fine of the premises to Town- send and his heirs, for and during the lives of Edmund and his wife, and the longer liver of them, in trust for William Beichier and his heirs, which was levied accordingly. [ * 440 ] William Beichier took possession of the estate, and * re- ceived the rents and profits, and paid the plaintiff, during Edmund's life, two sums of 25Z. and 21Z. 5s., in part of the annuity he was entitled to under Thomas Aleyn's will. Edmund died in June 1755. 494 ALEYN V. 15ELCJI1EK. * 441 On 2Gth November, 175G, tho plaintiff liled tho present bill to redeem the estate, on payment of 1510^. l.s-. lOd, the mortgage money borrowed nndor the decree, and to bo let into the possession of the estate; for an account of the rents and profits from the death of Edmund, submitting to pay Jane lOOZ. a year for her life, and to have the deeds and writings of the estate delivered up. Jane Aleyn and Willian Belchier admitted, in their several answers, the facts as before stated. Jane Aleyn said, that the settle- ment was intended to make a reasonable provision for her, and to save Edmund from ruin; and that if Edmund had not been in debt at the time of their marriage, he would have settled the whole estate on her for her jointure. William Belchier said, that the considera- tion of the settlement and conveyance was truly and bona fide ad- vanced, part before the execution of the settlement, and the remain- der at or about the time of the execution of the settlement and con- veyance to Townsend ; and they both admitted that Edmund was, at the time of the settlement, in distressed circumstances, and in want of money. Mr. Pe?To^ and Mr. Ambler, for the plaintiff: — This is an improper execution of the power, which was to bar dower, by giving a jointure; but even supposing it well executed, the fraud will vitiate it. The appointment and conveyance were a deceit upon tho testator, and a fraud upon the remainder-man. The power given to the nephew, who was only tenant for life, was to make a fair jointure, to encour- age him to marry, not to pay his debts. The remainder-man was only to be kept out of the estate in. case a fair and honest jointure were made. It must not be colourable, and for other purposes. This was an artful contrivance of Belchier and the defendant Jane: a low, mean woman, of no fortune. There is no settlement, nor agreement for one, at the time of the marriage, nor * till Belchier put it into Edmund's head, with a view to [ * 441 ] secure his own debt by taking an absolute interest in the estate for two lives, instead of a mortgage for Edmund's life only. It is at best an unreasonable bargain. The articles of the 1st August discover tho whole scheme. Upon the face of them it appears it was not the intention to jointure, but to pay debts. The only jointure averred is lOOZ a year; Edmund is stripped of everything during the joint lives of himself and his wife; only GO?, a-year to be paid during their joint lives, and that to the sepirato use of the wife. Suppose a power to make a jointure of so much for every 495 * 442 ALEYX V. BELCIIIER. thousand pounds fortune: it has been repeatedly held, that if the husband or others advance a sum of money, colourably to authorise the husband to settle largely, a Court of Equity will set aside all above the proportion of the real value of the fortune (/). So, if a father, having a power to appoint amongst his children, bargains with one for a share, equity will set it aside. Though it may be honest in Edmund to pay his debts, it must be done with his own money; this is a method of doing it with other persons' money, con- trary to the intention of the testator. Even admitting the estate had been fairly and bona fide appointed as a jointure, and the wife had afterwards parted with her jointure, or part of it to pay her husband's debts, it would have been good to bind the remainder- man; yet in this case the whole is one transaction, a collusion be- tween the husband and wife and Belchier. The case of Lane v. Page, determined by Lord Hardwicke, is precisely in point. The Attorney-General, Sir Charles Pratt, and the Solicitor-Gen- eral, the Hon. Charles ForA;e, f or the defendant Belchier; Clark, ior the jointress; — The first question is, as to the extent of the power given by the will. The objection that the power is only to bar dower, and con- sequently can only comprehend jointures made before marriage, is too extensive, as it will comprehend every jointure, though made bona fide. The devise is to a nephew, having no estate of his own, for life, without impeachment of waste; he had no [ * 442] estate to * which dower could attach, which shows that the words were put in by the scrivener currente calamo. As to the execution, the power was substantially executed; the husband and wife agreed to sell their interest to Belchier. If an appointment had been made of the whole estate, and the wife had afterwards joined with the husband and sold her interest, it would have been good if only a day had intervened. This is the same thing. Suppose the wife had made a stand after the power was exe- cuted, the Court would not have compelled her to levy a fine. It was in her power to do it or not. In the case put, of a father ap- pointing to a child, making himself a partaker, the appointment would only be avoided as against other children, not against a re- mainder-man. The Lord Keeper Henley {g). — The question is whether Edmund (/) Lane r. Page, Amb. 233; Lord Tyrconnel r. Duke of Ancaster, Amb. 237. ((j) Afterwards Lord Chancellor and Earl of Northington. 496 ALEYN V. BELCIIILK. * 443 Aleyn has properly oxecntotl tho powor as a jointuro, and has prop- erly coQveyeJ to the defendant, Belchier, or whether the transaction is void in toto, or in part. I am inclined to think the power was Dot well executed in point of law (h). It ought to have been before mar- riage. The power is given under restrictions. It must be a jointure in bar of dower, which can only be before marriage. Dower is not barrable by a jointure after marriage. But, I build ray opinion iipon the next question. The whole transaction is an agreement between the husband and wife. No point is better established than that a person liavuirj a power must execute it bond fide for the end designed, othericise it is corrupt and void. The power here was intended for a jointure, not to pay the husband's debts. The motive that induced Edmund to execute it was not a provision for his wife. This case is not distin- guishable from the cases alluded to, nor from Lane v. Page. If a father has a power to appoint amongst children, and agrees with one of them, for a sum of money, to appoint to him, such appointment would be void. It was admitted the execution would be void, but it was said to be only so amongst the children. In that case the money is to go to the children: no other person has any* interest in it; here the remainder-man has an im- [*443] mediate right to the estate after the death of Edmund, if there is no appointment. It was said to differ from the case of parent and children; and that, if the husband had fairly executed the power, the wife might have immediately afterwards joined in a fine to pay his debts. The reason is plain: she would then have had a iirst interest, and the husband would have had no control over it; l)ut it does not from thence follow that they might make an 'agree- ment to divide the money between them. It cannot be supposed he would have settled the whole on her without some such view. She was of no family and had no fortune. It would have kept the children, if they had any, entirely out of the estate till her death. Ii is like the case put of parents and children; and I think Lane v. Page is in point, and ought to govern my decision in the present case. Declare the appointment good as to the lOOZ. only, for the bene- fit of Jane. The plaintiff to redeem, on payment of principal and interest of the mortgage and costs, so far as relates to the mortgage. Account of rents and profits from the death of Edmund; and Belchier to pay the rest of the costs. ' [h) Sed vide 2 Sugd. Pow. 321. 32 WHITE ON EQUITY. 497 * 444 ALEYN V. BELCHIER. Aleyn v. Belchier was decided upon the well-established principle that a person having a limited power, must execute it bona fide for the end designed, otherwise the af)pointment, though unimpeachable at law, will be held corrupt and void in equity; for, although the Lord Keeper seemed inclined to think, that the power was not well executed, even at law, he founded his decision expressly upon the ground that the appointment was a fraud upon the donor of the power, and therefore void in equity. See Tophain v. The Duke of Portland, 31 Beav. 525; 1 De G. Jo. & Sm. 517; S. C, nom. Duke of Portland v. Topham, 11 H. L. Ca. 32; Topham v. Diike of Port- land, 5 L. R. Ch. App. 40; D'Abbadie v. Bizoin, SLR. Eq. 205. The recent case, however, of In re Huish's Charity, 10 L. R. Eq. 5, seems to have departed from the doctrines above laid down. [A power in the connection it is here used is an authority which enables a person to dispose of an interest vested in him or in some third person: Bisphara's Eq. Sec. 256. If the donee of a discretionary power acts bona fide and with his own good judgment and with a purpose of carrying out the in- tention of the donor, the fact that he promises to exercise the power in a certain way does not disqualify him: William's Appeal, 23 P. F. Smith, 249. Powers must be executed according to the settlor's intention as indicated by the declaration of trust: Guion v. Pickett, 42 Miss. 77; Kerr v. Verner, 66 Pa. St. 326.] The principle, somewhat concisely stated by the Lord 1^ *444 ] Keeper in Aleyn v. Belchier, has been * recently more fully and forcibly enunciated in the House of Lords. " The donee, the appointor under the power," observes Lord Westbiiry, C, " must, at the time of the exercise of that power, and for any pur- pose for which it is used, act with good faith and sincerity, and with an entire and single view to the real purpose and object of the power, and not for the purpose of accomplishing or carrying into ef- fect any bye or sinister object (I mean sinister in the sense of its being beyond the purpose and intent of the power), which he may desire to effect in the exercise of the power: " 11 H. L. Ca. 54. Upon the same grounds as the decision in the principal case, Avhere a man has a power to make a jointure under restrictions, as 1001. a-year for every lOOOZ. of the wife's portion, and he has him- self advanced a sum of money, in order colourably to enable him to make the jointure larger, the Court will reject such part as is more than proportionate to the real fortune: Lane v. Page, Amb. 234, per Lord Hardivicke; Lord Tyrconnel \. Duke of Ancaster, Amh. 237; S. a, 2 Ves. 500; where the judgment is more f ally reported ; and see Weir v. Chamley, 1 Ir. Ch. Rep. 295, 317. So an appointment to a child by a father in consideration of his wife postponing her jointure to some mortgages which he proposed to effect, was held by Sir W. Page Wood,^.-^., to be void: Rowley V. Rowley, Kay, 242. 498 ALEYN V. liELCHIER. * 445 Upon the same principle also, if a parent, liavinj? a power of ap- pointment amongst Lis cbiklren, a{)points to one or more of them, to the exchision of the others, npon a bargain eitlu'r f(jr llie herietit of a stranger or for his own (jdcanfcKje, ef^uity will relieve against the appointment as a frand npon the power, as where there was a secret understanding that the child should assign a ])art of the fund to a stranger. {Danbeny v. Cockburn, 1 Mer. 026; In re Marsden's Trusts, 4 Drew. 594); [If the trustees exercise tber di.scretionary powers in good faith and without fraud or collusion the Court cannot review or control their discretion: Eldredge v. Head, 10(5 Mass. 582; Snith v. Wildman, 37 Conn. 384; Hawley v James, 5 Paige, 485; Morton v. Southgate, 28 Me. 41; Mason v. Mason, 4 Sandf. 023; Pul press r. Church, 48 Pa. St. 204. If the trustee ex- ercised the power for any fraudulent or improper purpose, or causes it to be executed in an illusory or collusive manner the court will interfere and give a lemedy to the injured parties not for the purpose of controlling the trustees' discretion but to relievo the parties from the consequences of an improper exercise of that power: Matter of Vanderbilt, 20 Hun. (N. Y.) 520; Morcum v. D'Oencli, 2 Bennett, Mo. 98.] where an appointment was made to one of the children in consideration of her having agreed, out of part of the sum appointed, to pay part to persons not objects of his power (Hanleij v. M'Bcrmott, 9 I. 11. E. 35); to pay her fathers debts (B'armerx. Martin, 2 Sim. 502; and see Tliomjison v. Simp- son, 2 D. & W. 459; 8 Ir. Eq. Rep, 55, 59; Asktiam v. Barker, 12 Beav. 499; Connolly v. M' Dermott, Beat. 001; Sugd. Prop. 513; Jackson v. Jacksou, Dru. 91; 7 C. & F. 977; Carver v. Ricliards, 27 Beav. 488; 1 De G. F. & Jo. 548) ; or where the appointment is expressed to be made in payment of a debt: Reid v. Reid, 25 Beav. 409; and see Beddoes v. Riujh, 20 Beav. 407, 411. In Arnold V. Hardwick, 7 Sim. 3 13, Sir L. ShadiccU, V.-C, even held that an antecedent bargai u between a father and two of *his [ * 445 J children, that if the appointment were made in their favour they would lend the fund to their father, would vitiate the appointment. [Wherever the appointment is made with a view by the trustee to his obtaining the fund it is a fraud on his power of appointment: Hill on Trustees, 307; Bispham's Eq. Sec 250.] In Duggan v. Duggan, 7 L. R. Ir. 152, a tenant for life of a farm, with power of appointment among her children, made an agreement with such of them as had attained a full ago to appoint the fund to them, on condition that they would purchase her life interest at a valuation, and pay her the purchase-money out of the fund so appointed. It was held by the Court of Appeal, afTirming the de- cision of Chatterton, V. C, reported (5 L. R. Ir. 525), that the ap- pointment was bad, as its primary object and only certain effect was to confer an immediate personal benelit npon herself alone, even though, pursuant to the agreement, she applied a greater part of the money so obtained in payment of the debts which the appointees 499 *44() ALEVN ^>. BELCIIIER. had joined hor in securing, and which had been contracted by her for the benefit of her family and in keeping up a farm where they all resided. An appointment to a child, although not for the advantage of the appointor, will be invalid, if it be not made bona tide. Thus, in Salmon v. Gibbs (3 De G. & Sm. 343), the donee of a power of ap- pointment among his children, to whom it was given in default of appointment, had only two daughters, and appointed nearly the whole of the fund to one of them, who was unmarried, on an under- standing, but without any positive agreement, that the appointee would re-settle one moiety of it on trust for the separate use of the other daughter, who was married, exclusively of her husband, and after her death on trust for her children. A re-settlement was ac- cordingly made without the privity of the married daughter, who did not "hear of the transaction until several years after. It was held by Sir J. L. Knight- Bruce, V.-C, on the suit of her husband, that the appointment was invalid, and a settlement was directed to be made of his wife's share. [The courts never interfere with dis- cretionary powers unless they are abused: Amesr. Scudder, ll"Mo. ^ App. 168; Cromie v. Bull, 81 Ky. 646; or controlled except good' faith is absent: Bacon v. Bacon, 55 Vt. 243; and if a trustee is al- lowed to exercise his best judgment his powers are very broad: Heard v. Sill, 26 Ga. 302; Veazie v. Forsaith, 76 Me. 172.] And an appointment by will to an object of the power, unobjec- tionable when it was executed, may be rendered invalid as a fraud on the power by the appointee entering into an arrangement with the appointor under which a person not an object of tlie power was to take an interest in the sum appointed: In re Kirican's Trusts, 25 Ch. D. 373. Moreover, where an appointment is exercised with the view of defeating the object of the power, it will be invalid, although the objectionable arrangement has not been made known to the ap- pointee, if the appointment was made by the appointor relying upon the moral influence which his wishes, when made [*446] known to * the appointee, would exercise over him. in carrying out such arrangement. See in Re Marsden''s Trusts, 4 Drew. 594. There a married woman having power to ap- point a fund (of which she received the income for her life), among her children, appointed the whole fund at her death to her eldest daughter. It appeared in evidence that the married woman, con- sidering that her husband was unjustly excluded from any interest under the settlement, intended to exercise her power by appointing the whole property to the eldest daughter, upon condition that upon attaining her majority she should give certain interests to her father; bitt when advised that such an appointment would on the face of it be invalid, she exercised her power by giving the whole of the property to her eldest daughter under an arrangement with her husband that on her death the daughter should be informed by her 500 ALEVN V. KKLCIIIKR. * 447 fatlier of the intention with which tho {ippointment was made, and Ko be induced to carry oat the intention. Sir li. 7'. Kinderslcy, V.- C, held the appointment bad, as a fraud on the power. " lu some of the cases which have been cited," said his Honor, '' there has been a direct bargain between the donee of the power and the per- son in whose favour it is exercised, under which the donee of tiie power was himself to derive a beneiit; and certainly there has been uothinj^ of that kind in this case. In my opinion, however, it is not necessary that tiie ap))ointee should be privy to the transaction, because the desij^n to defeat the purpose for which tho power was created will stand just the same, whether the appointee was aware of it or not; and the case of Wellcsley v. Morniugton ( 2 K. & J. 1-13) shows that it is not necessary, in order to bring the case with- in the scope of the jurisdiction on which this Court acts, that the appointee should be aware of the intentions of the appointment, or of its being actually made. Neither is it necessary that the ol>ject should be the personal benefit of the donee of the power. If the design of the donee in exercising the power is to confer a benefit, not upon himself actually, but upon some other person not being an object of the power, that motive just as much interferes with and defeats the purpose for which the trust was created, as if it had been for the personal benetitof thedonee himself." See n\so Rank- ing v. Barnes, 12 W. R. (V.-C. K.) 565; Topham v. The Duke of Purtland, 81 Beav. 525; 1 De G. Jo. & Sm. 517; 11 Ho. Lo. 32, nom. Tlie Duke of Portland V. Topham; Topham v. Duke of Port- land, 5 L. li Ch. App. 40. But see P/'ot»?/ v. Landor, 28 Beav. 504. [The donee of a power cannot execute it for any pecuniary gain di- rectly or indirectly to himself nor for any other purpose personal to himself: Hetzel y. Hetzel, 09 N. Y. 1 ; and if the jiurposes becomes unattainable the power ceases: Brown v. Meigs, 11 Hun. (N. Y.) 203. A distinction is made between the motives which lead to the exe- cution of a power and tho purpose or end for which it is executed:" Perry on Trusts, Sec. 511.] Although questions of this nature generally arise upon a * fraudulent arrangement between husband and wife, or [ * 447 ] between parent and child, the interference of equity is by no means confined to cases in which the donee and object of the power stand in that relation towards each other; for an arrange- ment between any person having a power, even although he nn\\ have been by a voluntary deed the original donor of the power, and any of the objects of it, in fraud of tho original intention with which the power was created, will render an appointment void in equity. Thus, in Lee v. Fernie, 1 Beav. 483, A. B., being desirous of settling property on the female descendants then in existence of C. D., by a voluntary deed reciting this desire, and that certain persons therein named were the only descendants then living of C. D., settled a part of the property on the persons so named, and re- 501 * 448 ALEYN V. BELCHIER. served to himself a power of appointing the remaining part of the property amongst such several persons before named, which, in de- fault of appointment, was given to those several persons. A. B. afterwards discovered that there were other descendants in existence, of C. D., who had been omitted, and to remedy the omission, he ap- pointed a part of the fund to an object of the power, upon his exe- cuting bonds for the payment to the persons newly discovered of the amount when received. Lord Langdale, M. B.., held that the ap- pointment was void, And see Topham v. The Duke of Portland, 1 De G. Jo. & Sm. 517. As in all other cases imputing fraud, the burden of proof lies on the person who seeks to set aside an appointment as fraudulent. Thus in Campbell v. Home, 1 Y. & C. C. C. 604, where a lady who had a life interest in a fund, with power to appoint to one or more of her children, exclusively of the others, appointed the whole to one child, who had attained the age of twenty-one, and assigned her life interest to such child, one of the trustees refused to join in the transfer to the daughter. Sir. J. L. Knight-Bruce, V.-C, upon a bill being filed against the trustee by the daughter, held that he was bound to join in the transfer. "What may be the intention," said his Honor, "of this lady in regard to the disposition of her money, is not a question with which the Court has to deal. If it can even be shown that this deed was executed from improper motives, those who are interested in doing so can apply to set it aside." So in Askham v. Barker, 17 Beav. 37, a tenant for life had the power of appointing the settled property amongst such of his children as he should think fit. The trustees had in breach of trust lent him part of the trust moneys, without taking any security. Afterwards the tenant for life appointed to his daughters the money so [*448] lent, and 500Z. in exclusion * of his son. Contempo- raneously the daughters exchanged the sum so appointed for an estate of the father, and then the old trustee retired. Sir John Romilly, M. R., held that there was no fraud on the power, as the estate was worth the amount given in exchange. See also Af Queen v. B'arquhar, 11 Ves. 467 ; Ch^een v. Pulsford, 2 Beav. 70 ; Mills v. Si^ear, 3 Ir. Ch. Rep. 304 ; Pickles v. Pickles, 9 W. R. (V.-C. K), 396; lb. (L. J.) 763; Pares v. Pares, 33 L. J. (N. S.) Ch. 215. Where there is no fraud, equity will not advert to the circumstances of anger and resentment, under which it may be alleged that an ap- pointment has been made. See Vane v. Lord Dungannon, 2 S. & L. 130, where Lord Redesdale said, he did not think it safe to ad- vert to such objections, as there would be no end of them, if they were admitted as grounds for questioning appointments, since in almost all these cases, where there has been an inequality in the ap- pointment, something of that kind has existed. See also Supple v. Lmvson, Amb, 729. Bnt the burden of proof may be altered by circumstances. Thus where the fair inference from the facts is, that the appointor before 502 ali:yn v. dklchier. * 449 the Gxocution of an appointment intended to derive to himself a benefit therefrom, the burden rests on those who support the trans- action to show that the intention had been abandoned at the time of the execution of the deed: Humphrey v. Olcer, 7 \\. R. (L. J.) 334; 28 L. J. (N. S.) Ch. 400. It is, however, ck'ar that where an appointment has been set aside by reason of what has taken place between the donee of a power and an appointee, a second appointment by the same donee to the same appointee cannot be sustained, otherwise than by clear proof on the part of the api)ointee that the second appointment is [)er- fectly free from the orii^inal taint which attached to the first: Topham V. The Duke of Portland, 5 L. K. Ch. App. 40. And the same rule it seems is applicable to all cases, whether the fraudulent appointment has been set aside by the Court or revoked by the appointor: Hntchins v. llutchins, 101. It. E. 453, 457. [At law the trustee has largely the power of an absolute owner: Slevin V. Brown, 32 Mo. 170; Harrison v. Rowan, 4 "Wash. C. C. C. 202. But in equity the cestui que trust is regarded as the owner, and the trustee must perform certain duties for him, neither omitting nor adding anything, and any particular directions are given they must be carried on without any discretion: "NVormley r. Id., 8 Wheat. 421 ; Beatty V. Clark, 20 Cal. 11. Trustees may receive directions and instructions from the Court if they are in doubt as to course which they should pursue: Tilling- hast V. Coggeshall, 7 R. I. 383; Loring v. Steinman, 1 Met. 207 ; Petition of Baptist Church, 51 N. H. 424; Woodruff y. Cook, 47 Barb. 304; Crosby v. Mason, 32 Conn. 482.] AVhere the donee of a power intends to appoint, and the appointee intends to settle the property, the appointment will be valid, although the appointee by a deed executed soon after, or even by the same deed, settles the property upon persons within the marriage considerations who are not objects of the power. This often takes place when a parent, on the marriage of a child, makes an appoint- ment in favour of the child, who is the object of the power, and the child, either by the same or a subsecpient deed settles the property upon (amongst others) her intended husband and * the children of the marriage, who are not objects of the [ * 449 ] power . See Routledge v. Dorril, 2 Ves. jun. 357 ; Lang- ston v. Blackmore, Amb. 280; West v. Berney, 1 Russ. & Mv. 431 ; White v. St. Barbe, 1 V. & B. 399; Wade v. Paget, 1 Bro. C. C. 363; Iricin V. Tnviv, 10 Ir. Ch. Rep. 29 ; sed vide Trollope v. Pordledqe ; 1 De G. & Sm. 002; Salmon v. Gibbs, 3 De G. & Sm. 343; In re GosseVs Settlement, 19 Beav. 529, 537; ^V right v. Goff, 22 Beav. 207; FitzRoyv. Tlie Duke of Richmond, 27 Beav. 190; L>a)i/>/ v. Arku-right, 2 H. & M. 95; Ciniinghauie v. Aristruther, 2 L. R. Sco. App. 223, 234; Roach v. 7'/-oof/," 3 Ch. D. 429. And where, after an appointment macle by a father to his daughter previous to marriage, the intended husband in the marriage settle- 503 *450 ALE\N V. BELCIIIER. ment gave up to the father aa interest in the sum appointed, to which otherwise he (the husband) would be entitled, by his marital right, at any rate, where the father was not, on making it, influenced by what the husband gave up to him, the appointment has been held not to be thereby invalidated. See Cooper v. Cooi^er, 5 L. E. Ch. App. 203. There by a settlement made on the marriage of Mr. Thomas Daniell and Mrs. Daniell, funds were settled after the death of the survivor of them in trust for all and every of the children of the marriage, as they should jointly or as the survivor should appoint; and in default of appointment, in trust for all the chil- dren in equal shares. Upon the marriage, in 1834, of Sophia, one of their daughters, then under age, to Captain England, Mr. and Mrs. Daniell appointed a portion of the funds in Ler favour, and Mr. Daniell executed a bond for payment of an equal sum to her trustees in or before 1842, with interest in the meantime. Subse- quently a settlement was executed, the trusts of which were to pay the income of the trust funds to Mr. and Mrs. England successively for life; after the deatCi of the survivor, the principal to go among the children of the marriage; and the ultimate limitation in default of children of the marriage was "for Mr. Thomas Daniell, his ex- ecutors, administrators, and assigns.''^ There were children of this marriage, to some of whom, on their marriage, appointments had been made by Mr. and Mrs. England. Upon a bill being filed by the second husband of one of Mr. and Mrs. Daniell's daughters, praying, amongst other things, that the appointment to Mrs. Eng- land might be declared a fraud upon the power, and that the fund miarht be divided as in default of appointment, it was held by Lord Hatherly, L. C, affirming the decision of Sir "\V. M. James, V.-C, (reported 8 L. R. Eq. 312), that the appointment to Mrs. [*450] England, * who was an infant at the time of her mar- riage, was not corrupt or improper, so as to render the appointment invalid, inasmuch as the bargain under which Mr. Thomas Daniell reserved to himself an ultimate interest in the ap- pointed fund, was a bargain between himself and Mr. England, the intended husband. In Wicherley's Case, 2 Eq. Ca. Abr. 391, pt. 4; Amb. 234, n.. a remainderman filed a bill for relief against a jointure made by the tenant for life on his death-bed, in consideration of and previous to marriage, by virtue of a power reserved to him; but Lord Parker, assisted Yyy Pratt. C. J., and the Master of the Rolls, refused re- lief; although the tenant for life had asked the remainderman to join in charging the estate with his debts, and on his refusing had said: •'! will marry and execute my power," and although he died eleven days after his marriage. And it has been recently laid down that the good sense of the rule appears to be, that although if the appointor, either directly or indirectly, obtain any exclusive advantage to himself, and that to obtain this advantage is the object and the reason of its being made, 604 ALEYX V. DHLCIIIER. * 451 then the appointmont. is bad, novcrtheless, if tho whole transaction, taken together, shews no such oWjcct, but only shews an intention to improve tlio subject matter of the ai)poiutm('nt for the benefit of all tho objects of the power, then the exercise of the power is not fraudulent or void, although by the force of circumstances such improvement cannot be bestowed on tho property which is the sub- ject of the appointment without the appointor to some extent par- ticipating therein. See In re Huish's Charity, 10 L. R. Eq. 5, 10. There the tenant for life of real estate, under a marria^ro set- tlement, had a power of appointing the estate among the children of the marriage, of whom there were four. The settlement con- tained no power of granting building leases. An appointment was made to one of the children of the marriage, and subsequently the appointor and appointee joined in conveying the estate to trustees upon trust to grant building leases, and subject thereto as to one- fourth part thereof upon trust for the appointee, and as to tho re- maining three fourths upon trusts corresponding with those of the original settlement. It was held by Lord Romilly, M. \\., that although the object of the appointment was to enable building leases to be granted, and the tenant for life thereby gained an ad'' vantage to himself, yet the transaction being for thel)enetit of all the objects of the power, was valid, and that a willing pnrchaser would obtain a good holding title thereunder. See, also, MacQueen v. Farquhar, 11 Yes. 4G7; Cockcroft v. SutcUjfe, 25 L. J. (Ch.) oio. *Where, however, thereasonof anappointmentbeingmade [ ^-451] to the appointee arises from a previous contract by him with thedoneeof tho power to settle the property upon i)ersonswhoare not objects of the power, not being within the consideration of marriage, on the marriage of the appointee, then the appointment is invalid.^as b(?ing a fraud upon the power: See Birley v. Blrley, 25 Beav. 290. There a parent had power to appoint to children alone. She ap- pointed to two children absolutely. Ne.\t year the appointees set- tled tho property on children and grand-children of the parent, by deed reciting that when the appointment was made, it was under- stood between the appointor and appointees, that the latter should consider themselves as possessed of the property upon the trusts of the settlement. It was held by Lord Eomilly,M. K, that the trans- action was a fraud upon the power and wholly void. See also Pryor v. Pryor, 82 L. J. (N. S.) Ch. 731; 83 L. J. (N. S.) Ch.44l; 2 De G. J. & S. 205; In re Turner's Settled Estates, 28 Ch. D. 205. The case of Tucker v. Tucker, 13 Price, (iO'T, must be considered as overruled; and see Cutten v. Sanger, 2 Yon. & J. 459. The question in all these cases is this, In what character did the appointee take the property? If he took absolutely, he migljt do with it as he pleased; but if in trust for the donee of the power, and to effect that which it was not within the authority of the donee to effect und.-r the terms of the power, then it is illegal", and amounts 505 * 452 ALEYN V BELCIIIER, to nothing: per Sir J. Romilly, M. R., in Birley v. Birley, 25 Beav. 308. "Where trustees improperly pay over a trust fund to parties taking it under a fraudulent execution of a power, they will be compelled to replace such fund. See Mackecltnie v. Majoribanks, 39 L. J. Ch. 604; 18 W. E. (V.-C. J.) 993. But if trustees raise captious and untenable objections to acting upon appointments, tjiey may not be allowed their costs (Canqybell v. Home, 1 Y. & L. C. C. 664); a fortiori if they have been influenced by corrupt or improper motives: King v. King, 1 De G. & Jo. 671. The Court, however, will sup- port trustees in exercising the same jealousy which the Court itself is in the habit of exercising if they have acted bona tide and not been influenced by any corrupt or improper motives: King v. King, 1 De G. & J. 663, 671. A question sometimes arises, whether a fraudulent arrangement as to part .of the property appointed vitiates the appointment in toto, or such part merely to which the fraud extends. [If an ap- pointment is bad in part it is generally invalid in toto. But if a good appointment has been made in favor of any one child it will not be invalid owing to a fraudulent appointment to another, pro- vided the two can be separated.] Where a fraudulent appointment has been made in pursuance of a power of jointuring, the wife, in whose favour the power is exer- cised, being the sole object of the power, it appears to be [ * 452 ] now settled that the appointment *may be severed, and held good to the extent to which the jointress is entitled, but bad with reference to th*e corrupt and improper use that may be made of the surplus. Lane v. Page, Amb. 233; Aleijn v. Bel- chier. 1 Eden, 138; and aiite, p. 422; and the i-emarks of Sir W. Page Wood, V.-C, in Roivley v. Rowley, Kay, 259. "Where, however, the power is to appoint to several objects, an appointment to one of them, fraudulent in part, will ordinarily be set aside in toto. See Daubeny v. Cockburn, 1 Mer. 626, where this question was fully considered. In that case there was a voluntary settlement of personal property, in trust for such one or more of his children as the settlor should appoint. He appointed to one child exclusively, upon a secret understanding that she should assign a part of the fund to or in favour of a stuanger. It was contended, upon the aiathority of Lane v. Page, and the principal case, that the appointment was only void as to the jiart of the fund agreed by the daughter to be assigned. However, Sir W. Grant, M. R., held the appointment void in toto. ''Upon principle," said his Honor, "I do not see how any part of a fraudulent agreement can be supported, except where some consideration has been given that cannot be restored; and it has consequently, become impossible to y^escind the transaction in toto, and to replace the 23arties in the same situation. "lu the case of Lane v. Page, the subsequent marriage formed 506 ALKYN V. BELCIIIER. * 453 such a consideration on the part of the wife. In the case of Aleyn V. Belchier, Avliero tlie apj)ointmeut was subsequent to the marriage, it can liardly be said to have been decided that the appointment was ^ood in any part. For it appears, by the registrar's book, that the bill contained a submission to pay the annuity to the wife, and only sought relief against the other objects of the appointment." [It was formerly held that illusory appointments under a power were void in equity, i. e., appointments of a nominal instead of a sub- stantial share to one of the members of a class where power was given to appoint amongst them all. This doctrine is not now ap- proved: Adams on Equity, Sec. 180; Fonty v. Fonty, 1 Bail. Eq. 529; Cowles v. Brown, 4 Cal. 477.] "In ordinary cases of fraud the whole transaction is undone, and the parties are restored to their original situation. [May v. Sey- mour, 17 Fla. 725; Foy v. Haughton, 83 N. C. 4G7; Kesh v Allen- town Bank, 12 Norris (Pa.), 397; Selden v. Myers, 20 How. (U. S.) 50G; Jones v. Austin, 17 Ark. 498; Laidla t-. Loveless, 40 Ind. 211; Strong V. Linington, 8 Brad. W. 430; Byers v. Daugherty, 40 Ind. 198.] If a partially valuable consideration has been given, its re- turn is secured as the comlition on which equity relieves against the fraud. But, in such a case as the present, the appointment of any particular proportion to any particular child, is a purely vol- untary act on the part of the parent; and, although as good, if fairly made, as if the consideration were valuable, yet what is there that a Court can treat as a consideration, which must be restored if a fraudulent appointment be set aside, or as incapable of restitu- tion, and, therefore, support the appointment, so far as it is for the child's benefit? To say it is to be supported to that extent, would be to say that the child shall have the full benefit of the fraudulent agreement. . . Either, then, you *must hold [ * 453 ] that a child giving a consideration for an appointment in its favour, is guilty of no fraud on the power, or you must wholly set aside the appointment procured by the fraud. Now, although the father in proposing such a bargain is much more to blame than the child in acceding to it, still it is impossible to say that an ap- pointment obtained by means of such an agreement, is fairly ob- tained. It is a frand upon the other objects of the power, who might not, and in all probability would noi have been excluded but for this agreement. It is more particularly a fraud upon those who are entitled in default of appointment; for non constat that the father would have appointed at all, if the child had not agreed to the proposed terms." See Beddoes v. Pugh, 20 Beav. 407, 412. The distinction taken by Sir W. Grant seems to be sound in principle; and appointments to children, in part fraudulent, have ever since, notwithstanding the dicta attributed to Lord Hardwicke, in Lane v. Page, Amb. 235. been set aside in toto. See Farmer v. Martin. 2 Sim. 502; Arnold v. Hardwicke, 7 Sim. 343- and see Lee v. Fernie, 1 Beav. 483. 507 * 454 ALEYN V. BELCIIIER. The general rule, however, laid down in Daubeny v. Cockburn, (1 Mer. 626), that where an appointment is made for a bad purpose the bad purpose affects the whole appointment, does not, it seems, apply to cases in which the evidence enables the Coart to distin- guish what is attributable to an authorised from what is attribut- able to an unauthorised purpose: Topham v. The Duke of Portland, 1 De G. Jo. &Sm. 517; Carver v. Richards, 1 De G. F. & Jo. 548; Rankin v. Barnes, 12 W. R. (V.-C. K.) 565; and see Sadler y. Pratt, 5 Sim. 632. So, where there is a sum of money to be appointed among chil- dren, although an appointment to one child may be void on account of a corrupt agreement, an appointment to another child, although by a contemporaneous deed, if it can be severed from the previous appointment, so as not to form part of the same transaction will be valid: Rowley v. Rotuley, Kay, 242; and see Harrison v. Randall, 9 Hare, 397. A fraudulent execution of a power will be set aside as against a purchaser for valuable consideration, ivith notice of the fraud (Palmer V. Wheeler, 2 Ball. & B. 18; Hall v. Montague, 8 L. J. Ch. 16/); or even if he had not notice of the fraud, if he has not got the legal estate, for then there are only equities to deal with; and, as ob- served by Sir W. Grant, M. R. "The payment of a money consid- eration cannot make a stranger become the object of a power created in favour of children; he can only claim under a [ * 454 ] valid appointment executed in * favour of some or one of the children : " Daubeny v. Cockburn, 1 Mer. 626, 638. But a purchaser must, it seems, have actual notice of a fraud upon a power, in order to be affected by it; circumstances which may give rise to mere grounds of suspicion or probability of fraud are not sufficient. Thus, in ^PQueen v. Farquliar, 11 Yes. 467, where A. was tenant for life, remainder to bis wife for life, with power to appoint to one or more of his children by her, A. entered into a contract with T. for the sale of the estate to him, and afterwards appointed (subject to the life-interest of himself and his wife) the fee simple of their estate to R., the eldest son, who had attained the age of twenty-one: and then A. and his wife, and R. their son, conveyed the estate to T. in consideration of a sum of money, ex- pressed to be paid to all of them. This appearing upon an ab- stract, an objection was taken to the title, that the appointment by A. in favour of his son R. appeared to have been made under a pre- vious agreement between them; and that if A. derived any benefit from that agreement, which seemed probable, or even made any pre- vious stipulation that his son should join him in a sale, which there appeared the strongest reason to apprehend, it would have been a fraudulent execution of the power. Lord Eldon, however, overruled the objection. "It does not appear," said his Lordship, "that the estate sold for less than its value— that the son got less than the value of his reversionary interest. But the estate becoming his absolutely 508 ALEYN V. llKiAUn-Ai. * 455 by the appointment, ho by an instrument, afTocted by nothing but the contents of it, as the owner of the reversion, accedes to the pur- chase, conveys with his father and mother, in consideration of 8()()<)/., and tlie parties taking the conveyance pay the money to the father, the mother, and the son, to be dealt with according to their respective interests; that is, according to their rights in th(! land; and, though the contract with T. was only to snl^stitute money for the estate, there was nothing to show that the son was not to re- ceive a due proportion of the money, when the contract was after- wards executed by the deed, in which he joins, and, with his father and mother, receives all the money. L'pon the question, therefore, whether those possibilities and ])robabilities are sufficiently evi- denced by anything to show that this is not a good title, my opin- ion is, that it is a gootl title: " see also Cockroft v. Sntcliffc, 2 Jur. N. S. 383, 25 L. J. Ch. 313; Laurie v. Bankes, 4 K & J. 142. And it seems that the Court would bo less disposed to impeach an appointment as fraudulent, after a great lapse of time, and where there have been subsequent dealings with the funds, such, for * instance, as subsequent appointments thereof on [ * 455 ] the marriage of daughters or the establishmeut of sons in the world: Cooper v. CoojJer, 5 L. R. Ch. App. 203, 212, 213; S. C, 8 L. K. Eq. 312. AVhere there is an arrangement for settling the interests of all the branches of a family, in fact a family arrangement, children may contract ivith each other to give a parent, who had a power to distribute property among them, some advantage, which the y)arent, without their conti'act with each other, could not have. Thus, in Davis V. Uphill, 1 Swanst. 130, an estate being limited, under her marriage settlement, to A. for life, with remainder to her chil- dren by her deceased husband, in such manner as she should ap- point, remainder, in default of appointment, to all the children as tenants in common; an agreement by the children, that on her joining in suffering a recovery, the Urstuse to which the recovery should enure, should be to A. for life, icithont impeachmenf of waste, is it seems valid in equity: and the Court, therefore, re- fused to continue an injunction to restrain her from cutting timber. See also i?/p, 12 L. R. Eq. 238. A fortiori will the appointment be good if the father himself can derive no benefit from it, although upon the death of a child the mother takes as his representative to the exclusion of the persons who would have been entitled in default of appointment. Thus in Fearon v. Desbrisay (14 Beav. 641), a father had a power of ap- pointing a fund amongst his children, their shares to vest at such ages as he should appoint, and if he made no appointment, it was to vest in them equally at twenty-one or marriage, and there was a gift over, if there should be no child entitled under the trusts or power: on the birth of a son, the father executed the power by giv- ing the whole to such son, but afterwards upon an expected addi- tion to his family, he, being in a weak state of health, revoked the former appointment and executed the power in favour of all his children, tvho sliould he living at his death, equally. The father then died. It was held by Sir John Romilly, M. R., that the appoint- ment was good, as not being a fraud on the power, and that upon the death of one of the children the mother was entitled to her share as administratrix. Although it would doubtless be a fraud upon the trusts if trustees having power of advancing moneys to an infant under powers of maintenance and advancement, laid out money, for instance, in the purchase of a commission in the army, with the intention that the infant should by sale of the commission obtain the money for other purposes, that will not be the case where the advance has been bona fide made, although the infant is soon afterwards obliged to sell his commission in consequence of his debts, and he or his as- signees for value, if without notice of any impropriety in the sale, will be entitled to the proceeds thereof: Lawrie v. Bankes, 4 K. & J. 142. Where a father has power to appoint and divide at his discretion among his children a fund to which they are entitled in default of appointment, he cannot in making appointments to them enter into a bargain by which he can derive any benefit in the resi- [ * 461 ] due of the trust fund which may * remain unappointed. See Cumngham\. Anstruther, 2 L. R. Sc. & D. 223, better re- ported 2 Paters. App. 2013. 'There, by a marriage settlement there was a power to divide among children of the marriage, funds amounting to 60,000Z., and failing such division the children were to take share and share alike in full satisfaction of legitim. There were three daughters, and upon the marriage of two of them 5000Z. was appointed to each, and subsequently 20,000Z. was appointed to the third unmarried 514 ALEVN i^. Br<:LClIIER. * 462 daughter, and upon each appointtnont bfing made there was a declaratiou by the appointee that the appointment was in full satis- faction of the legitim or all claims that might be open to her under the marriage settlement. The father of the appointees having sur- vived their mother, dealt with the residue of the fund as if he were absolutely entitled to it. It was held by the House of the Lords, reversing the decision of the Court of Session in Scotland, that the father could gain no benefit to himself in the residue of the trust fund by any arrangement with the appointees, that the p(jwer had been rightly exercised so far as regarded the quantity ai)i)ointed to each daughter, and that the residue unappointed was equally divis- ible among the three sisters. It was not held that the appoint- ments were invalid by law, although it might have been suggested that they were partly made in consideration of the releases by the ajipointees, and Lord Westbury said that, "What are called words of release amount to no more than this— that the sum appointed to tlie child shall be taken as part of the settlement provision in which the child under the trust settlement had an interest." An api)ointment will fail entirely if the donee inseparably attach to a gift made thereby a condition not authorised by the power. Thus, in WAbbadic v. Bizoin, 5 Ir. R. Eq. 205, A. having power to appoint certain lands among her children in such shares and pro- portions as she pleased, devised part thereof to a trustee, on trust to sell and lay out the proceeds in the purchase of freehold pro- perty in France, and to convey the property, if purchased, to "the testatrix's second son in fee, provided he should previously decide to reside in France, but if he decided not to reside in Franco, then she decided to leave the ])roperty so purchased to another of her sons.. The Court said that on the face of the will, it was apparent that the devise to the second son was one which resulted from an. intention on the part of the donee of the power to induce her son to reside in France, by giving him property which had belonged to another person, and over which the testatrix had only a ])ower of appointment. The testatrix held out an * induce- [ * 4P)2 ] ment to her son to reside in France: that was an indirect object, not warranted by the power, and so inseparably connected with the devise or appointment that it made a fail entirely. A tenant for life may clearly release a power to appoint amnngst children ( TT>,s^ v. Berney, 1 Russ. & Mv. 484; Horner v. Sirann,T. & R. 480; Smith v. Death, 5 Madd. 371; Bickley v. Guest, 1 Russ. &My. 44G; 1 Bligh. 15; Davies v. Huguenin, 1 H. & M. 730), or may covenant with a mortgagee of his life interest not to exercise a power of charging the estate with portions for younger children (Hurst V. Hurst, 10 Beav. 372, and see Miles v. Knight, 17 L. J. (N. S. ) Ch. 458; 12 Jur. GHG), or with creditors to make a certain appointment by will in favour of a child an object of the ]K)wer: Coflin V. Cooper, 2 Dr. & Sm. 365; Palmer v. Locke. 15 Ch. D. 294, 13 W. R. (V.-C.K.)57L 515 * 463 ALEYN V. BELCHIER. But no effect will be given to a release of a power by a father, so as to vest property in himself, which was intended for his children; or in other words, a power given for a particular purpose will not be allowed by a fraudulent circuity to be exercised for a different pur- pose. Thus, in Cuninghame v. TImrloiv, 1 Euss. & My. 436, where a fund was limited to a father for life, with remainder to his chil- dren, in such shares as he should appoint, and in default of appoint- ment to the -children equally, the father released the power as to a portion of the fund, so as to vest a share of it in himself as execu- tor of a deceased son, who, in default of appointment, took a vested interest. Sir L. Shadwell, V.-C, although he was of opinion that the power was extinguished by the release, nevertheless decided that the Court ought not to give effect to the release, so far as it operated to vest a share of the fund in the father, who was the donee of the power. But where a father obtains no advantage by a release of a power to mortgagees,' full effect will be given to the release. See Smith V. Houblon, 26 Beav. 482, there a father had an exclusive power of appointment in favour of his children over a fund, which in default of appointment was limited to them equally, and as representative ' of a deceased son he was, in default of appointment, beneficially entitled to one-third of the fund. The father released the power to his mortgagees. A bill was filed by the mortgagees, praying, amono-st other things for a declaration that the deceased son's sharefon the release of the power, became vested in the mortga- gees. Counsel for the mortgagees distinguished the case from Cim- ingham v. Thurlow, inasmuch as there the donee of the power, by the deed releasing it, obtained for himself a personal bene- [ *463 ] fit, to which * he would not otherwise have been entitled; whereas in the case under consideration, the release was to the mortgagees, as against whom the mortgagor could not execute the power in derogation of his own grant. It was held by Sir John Romilly,M.. R., that the power had been effectually released, and he declared the rights of the parties consequent thereon. If the consent of another person to the exercise of a power is re- quisite, and that consent is obtained by misrepresentation, the ap- pointment will be set aside. Thus, in Scroggs v. Scroggs, Amb. Blunt's ed. 272, and App. 812 (a case which falls entirely within the principle of Aleyn v. Belchier), a father was tenant for life, with remainder to the use of such of his son and sons as he, with the consent of the trustees, or the survivor of them, should appoint, and, in default of appointment, to his first son in tail male. The father, by misrepresenting his eldest son to the surviving trustee as extrav- agant and undutiful, prevailed upon him to consent to an appoint- ment to a younger son. Upon a bill being filed by the eldest son, it was proved that the son was dutiful and not extravagant, and that the father, from improper motives, had misrepresented him to the trustee. The appointment was set aside by Lord Hardivicke, who 516 ALEYN V. HKLCIllKR. * 4G4 observed, that if the trustee and father had met fairly^ and without imposition, and considered the family circumstances, and had ex- ecuted the power for such reasons as biased tbeir judgment, the Court would not interfere; but that, upon the whole, he was of opinion that it was a power accompanied with a trust, and that it was executed by an imposition on the trustee, who was designed to be a check on the father. It seems that where in a marriage settlement there is a power of revocation and new appointment, with the consent of the trustees, it will be presumed that it was the intention of the parties that such consent was only to be given for the benefit of the objects of the settlement, and that if it be given merely for the purpose of putting money into the hands of the father, the revocation and new appoint- ment will be considered as a fraud upon the power, and consequently void. See Eland v. Baker, 29 Beav. 137, there by a marriage settle- ment, land was settled by the father of the lady upon the wife for life, remainder to the husband for life, remainder to the children of the marriage. And there was a power to the father of the lady and the husband and wife, with the consent of the trustees in writing, by deed absolutely to revoke and make void all or any of the uses or trusts and also by the same or any other deed to limit and declare new uses and trusts in substitution for those *revok- [ * 404 ] ed. The father of the lady, and the husband and wife, with the consent of the trustees, revoked the settlement so far as Avas necessary, and appointed the property to one of the trustees in fee to secure a sum of money advanced to the husband. The estate was afterwards sold under a power contained in the mortgage deed. It was held by Sir John Romilly, M. R., that a good title could not be made under it " How, " said his Honor, " could it be said that this is a fair exercise of the discretion of the trustees in favour of their cestuis que trustent, if they exercise it in such a manner so as totally to defeat the whole beneficial interest of those persons whom, as trustees, they are bound to protect ? "' And after observing in addition to this upon the objection that the mortgage was to one of the trustees who became thereby pro tanto a purchaser of the estate, his Honor said it was impossible to force the title upon a purchaser. Where, a person makes an appointment which is afterwards set aside as being in fraud of a power, the question is undetermined whether in the event of his not having reserved a I'ight of revocation and new appointment he can again exercise his power: The Duke of Portland v. Topham, 11 Ho. Lo. Ca. 32. It has been intimated in a recent case, where a person was donee of a power to be exercised only by will, in favour of children, that a covenant on the marriage of a child to exercise the power by ap- pointing a certain share in favour of such child, may be illegal and void — upon the ground that the power is fiduciary, to be exercised by will only; so that up to the last moment of his life, the donee 517 *465 ALEYN ?;. BELCUIER. was to have the power of dealing with the fund as he should think it his duty to deal with it, having regard to the then wants, position, merits, and necessities of his children: per Sir W. M. James, V.-C, in Thacker v. Key, 8 L. E. Eq. 414, 415; where, however, it was not necessary to decide the point. In the subsequent case of Bulfeel v. Plnmvier, 6 L. R. Ch. App 109, Lord Hatlierley, C, said, that to hold an appointment made pursuant to such a covenant "bad as a device, would be to strain the doctrine as to improper appointments too far." See also, Coffin v. Cooper, 2 Drew. & Sm. 365. Lord Hatherley's dictum has been approved of and followed in Palmer v. Locke, 15 Ch. D. 294, there a father who had a limited power of appointment over a fund by will only, among his children, made a will by which he appointed a sum of 5000?, to his son J. and the remainder among his other sons. A few weeks afterwards he executed a bond binding himself that his son J. should [ *465 ] receive, either out of his * own property or out of the fund subject to the power, the sum of 5000/. at the least. The father died without revoking his will. It was held by the Court of Appeal, affirming the decision of Jessel, M. R., that the appoint- ment was valid. Illusory appointments. — There is another class of cases to be noticed, in which Courts of equity have interposed, upon the same principle, but not with the same beneficial results as in Aleyn v. Belchier; viz. where a person having a non-exclusive power of ap- pointing property amongst a class, although with full discretion as to the amount of their shares, has exercised it by appointing to one or more of the objects a merely nominal share; such an appoint- ment, although valid at law, would, if executed previous to the pass- ing of 1 "Will. 4, c. 46, be set aside as illusory, not being exercised bona fide for the end designed by the donor. [See note number 8.] To illustrate the doctrine of illusory appointments, suppose A. had a power to distribute 100,000Z. amongst a class in such shares and proportions as he should appoint, and he gave one of the class five shillings only, that would be at law a good execution of the power: Morgan v. Surman, 1 Taunt. 289. But such an appointment, or an appointment of ten guineas, or of any sum merely nominal, taking into consideration the amount to be distributed, and the number of persons amongst whom it was distributable, would, if executed previous to the passing of 1 Will. 4, c. 46, be held void in equity as illusory. It would, indeed, be perfectly competent to the donee of a power to make a very unequal distribution of the fund, provided that the inequality was not so great as to lay the appointment open to the objection of its being merely nominal and illusory, and, con- sequently a fraud upon the donor of the power, who, it would be presumed, intended that each of the objects of the power should take a substantial share. Amongst the earlier cases on this subject, see Gibson v. Kinven, 1 Vern. 60; Wall v. Tlmrborne, 1 Vern. 355, 518 ALEYN V. BELCIIIER. * 466 414, and Cragrave v. Perrost there cited; Astry v. Astry, Free. Cb. 250; Maddisoa v. Andrew, 1 Ves. 57; Coleman v. Seymour, 1 Ves. 211; Vanderzee v. Ado, a, 4 Ves. 771; Spencer v. Spencer, 5 Ves. 3G2. The doctrine applied to appointments of real as well as of personal estate: P(>ckHngton v. Bayne, 1 Bro. C. C. 450. Much litigation arose iu consetjueuce of the great difficulty of deciding what was a substantial, and not merely an illusory sharn; and great dissatisfaction with the doctrine was expressed by the most eminent judges, who endeavored, in many cases, to narrow it. See Wilxon v. Piggott, 2 Ves. jun. 351; Butcher \. Butcher, 9 Ves. 882; 1 * V. &. B. 79; Bax v. Whitbread, 10 Ves. [*4G6 J 15; Mocatta v. Lousada, 12 Ves. 123; Duke \. Sylvester, 12 Ves. 120. If a share not illusory came to one of the objects in default of appointment, it would be considered as an appointment, and no question of allusion would arise: Wilson v. Piggott, 2 Ves. jun. 351. An appointment therefore, to some only of the objects of a power which did not authorise an exclusive appointment, might be ren- dered valid, by the partial failure of the appointment in consequence of its being, to the extent to which it failed, a fraud upon the power: Ranking v. Barnes, 33 L. J. Ch. 539; 12 AV. R. (V.-C. K.) 505. So if, under a non-exclusive power to appoint amongst all of a class, a part was well appointed to some, by one instrument, leaving a share not illusory, un appointed, which was afterwards appointed by a separate instrument, so as entirely to exclude others, the last ap])ointment only would be void: Wilson v. Piggott, 2 Ves. jun. 355; Young v. Lord Waterpark, 13 Sim. 199. But if it were set aside a sufficient fund might be set free to go to the other objects, or in default of appointment, and therefore none of them Mould be excluded: lb. "Where, however, under such a power successive appointments were made by the satne instrument, as for instance a will, if they exhausted the whole of the fund, without providing for some of the objects of the power, the whole of the appointments would be in- valid, and not merely the last, even if it were in the shape of a re- siduary gift: Bulteel v. Plummer, 6 L. R. Ch. App. 100, overruling S. a, 8 L. R. Eq. 585. It may be here mentioned that in order to prevent the improper use of the large powers intrusted to a tenant for life under the Settled Land Act, 1882 (45 & 40 Vict. c. 38), it was thereby en- acted that " a tenant for life shall, in exercising any power under this Act, have regard to the interests of all parties entitled under the settlement, and shall, in relation to the exercise thereof by him, be deemed to be in the position and to have the duties and liabili- ties of a trustee for those parties:" sect. 53. Under this section it seems a tenant for life will not be restrained fi-om selling merely 519 *467 ALEVN V. BELCHIER. on speculative" evidence adduced by the remainderman of the pros- pective value of the estate (Thomas v. Williams, 24 Cb. D. 558); but if he attempted to sell the property infinitely below its value he would be restrffined from doing so ( Wheelright v. Walker, 23 Ch. D. 752, 762), or otherwise than by public auction without commu- nicating to the remainderman any offer made: S. C, W. N. ISS'S, p. 154 [ * 467 ] ^Formerly, an illusoiy appointment might be justified, and equity would not give relief against it when misbe- haviour was shown in the child to whom such illusory share was given (Maddison v. Aiidretv, 1 Ves. 57); but this doctrine was overruled in Kemp v. Kemp, 5 Yes. 855; 1 V. & B. 97. Where, however, gross inequality was accounted for by the situa- tion of the children, and was humane and wise and discreet, the Court would not call it illusory: Boyle v. The Bishop of Peterbor- ough, 1 Ves. jun. 310, per Lord Thurloiv. Thus, an appointment of a veiy small share to a son, who was an uncertificated bankrupt, would not be looked Tipon as illusory: Bax v. Whitbread, 16 Ves. 15. So, if a parent had made a provision for a child, an appoint- ment of a very small share to that child would cot beheld illusory: Brisfoive v. W^ard, 2 Ves. jun. 336; Smiths. Lord Cavielford, 2 Ves. jun. 698; Lo7ig v. Long, 5 Ves. 445; Spencer \. Spencer, b Yes. 367. The provision, it seems, must have been made by the donee of the power (Mocatta v. Lousada, 12 Ves. 123); though Lord Alvanley thought that the same result would follow if the provision was made aliunde: Vanderzee v. Aclom, 4 Ves. 785; and see 16 Ves. 25; Lysaght v. Royse, 2 S. & L. 151, and 1 V. & B. 97. It is clear, however, that a provision moving from the donor of the power would not be sufficient: Kemp v. Kemp, 5 Ves. 861. The interference of Courts of equity, in cases of illusory appoint- ments, was so unsatisfactory in its results, that the Legislature at length interfered, and rendered appointments under non exclusive powers valid, provided all the objects of the power took under the exercise thereof, or in default of appointment, a share, however small it might be. See the Illusory Appointments Act (1 Will. 4, c. 46), passed June 16, 1830, by which it was enacted that no ap- pointment, which from and after the passing of the Act should be made, in exercise of any power or authority to appoint any prop- erty, real or personal, amongst several objects, should be invalid, or impeached in equity, on the ground that an unsubstantial, illus- ory, or nominal share only should be thereby appointed to or left unappointed to devolve upon any one or more of the objects of such power; but that every such appointment should be valid and efPec- tual in equity, as well as at law, notwithstanding that any one or more of the objects should not thereunder, or in default of such ap- pointment take more than an unsubstantial, illusory, or nominal share of the property subjected to such power: proz^id^d that noth- ing in the Act contained should prejudice or affect any provision 520 ALEYN V. BELCIIIER. * 469 in any deed, will, or other instrument creating any such power as *arorosai(l, which .should declare the amount of [ *4G8 ] the sbaro or shares from which no object of the jKjwer should be excluded; and proridexl also, that nothinj^ in the Act contained should be construed, deemed t)r taken at law or in equity to give any other validity, force, or effect to any appointment than such appointment would have had if a substantial share of the property affected by the power had been thereby appointed to or left unappointed to devolve upon any object of such power. See In re Clones' Estate, 3 I. R. Eq. G2l, and the very interesting re- marks of Sir Geo. Jessel, M. R., in (Jainsford v. Dunn, 17 L. R. Eq. 405. Lord St. Leonards has observed, with reference to this Act, that, where it is intended that a party shall have power to divide a fund among several objects in substantial proportions, according to his discretion, but shall not be at liberty to give a merely nominal share to any, the smallest sum which the person creating the power should wish each of the objects in any events to have, should be named, aid it should be declared that the donee of the power shall not be at liberty to appoint a less sum to any of the objects: 1 Pow. 545. Where, moreover, there is a gift of fegacies by the donee of a non exclusive power to certain objects of the power, and a gift of the residue of his real and personal property, including that over which he had the power of appointment, to the other objects of the power, the legacies will be chargeable rateably upon the residuary property not included, and that included within the power, and if the legacies thus became entitled even to a merely nominal sum apiece, out of the property included in the power, they would not be able to invalidate the exercise of the power, upon the ground that some of the objects of the power had taken nothing under the appointment. See Gainsford v. Dunn, 17 L. R. Eq. 405, see also Bench v. Biles, 4 Madd. 187; Greville v. BrowJie, 7 Ho. Lo. Ca. 089; Francis v. Clemow, Kay, 485; Gyett v. Williams, 2 J. & H. 429. The statute as to illusory appointments (1 Will. 4, c. 46) has a retrospective operation on any power of appointment in esse at the time of the passing of the Act, but executed afterwards (Beid v. Reid, 25 Beav. 409, 480) : it does not, however, make valid an ap- pointment which previous to the Act would have been invalid, in consequence of the exclusion of certain objects of a power, not au- thorising an exclusive appointment: Minchin v. I\Ii)ichin, 3 Ii\ Ch. Rep. 107. It has been recently held by Sir G. Jessel, M. R., disapproving of a dictum in Mincliin v. Minchin (3 Ir. Ch. Rep. 107), that an ap- pointment since the Illusory Appointments Act, 11 Geo. 4 & *1 Will. 4, c. 46) under a non exclusive power of an [ * 409 ] entire fund unto and amongst the objects "and the siu-- vivors and survivor of them, and if only one should sm-vive, then unto that one" is valid; In re Capron^s Triists, 10 Ch. D. 484. 521 * 470 ALEYN V. BELCHIER, The reason for the remarkable alteration of the law by the Illu- sory Appointments Act insisting upon a share, however small be- incr given to every one of the objects of the power, has been said by one learned judge (Lord Hatherley) to have been that the inten- tion of the donee of the power to all the objects would be assured. See Bulteel v. Plummtr, 6 L. R. Ch. App. 162. The consequence, however, according to another learned judge (Sir G. Jessel, M.R.) has been this, that where the power is non- exclusive, if the appointor forgets to appoint a shilling or even a farthing, to every object of the power, the appointment is bad be- cause some one is left out, and his Lordship suggests that the rea- sonable mode of altering the law would have been to make every power of appointment exclusive, unless the author of the settle- ment had pointed out the minimum share, which every object was to get: Gaiusford v. Dunn, 17 L. R. Eq. 407. This suggestion has been acted upon by the Legislature in a re- cent Statute, 37 & 38 Vict. c. 37 (passed 30th July, 1874), entitled An Act to Alter and Amend the Law as to Appointments under Powers not Exclusive, whereby, after reciting that by deeds, wills, and other instruments, powers are frequently given to appoint real and personal property amongst several objects in such manner that no one of the objects of the power can be excluded, or some one or more of the objects of the power cannot be excluded, by the donee of the poAver from a share of such property, but without requiring a substan- tial share of such property to be given to each object of the power who cannot be excluded; and that instruments intended to operate as ex- ecutions of such powers are frequently invalid in consequence of the donee of the power appointing in favour of some one or more of the objects of the power to the exclusion of the other or others or some other or others of such objects; and that it was expedient to amend the law so as to prevent such intended appointments fail- ing; it is enacted that no appointment, which from and after the passing of the Act should be made in exercise of any power to appoint any property real or personal amongst several objects, should be invalid at law or in equity on the ground that any object of such power had been altogether excluded, but every such appoint- ment should be valid and effectual, notwithstanding that [*470] any one or more of the objects should not * thereby or in default of appointment take a share or shares of the property subject to such power (sect. 1). And there is a proviso that nothing in the Act contained should prejudice or affect any provision in any deed, will, or other instrument creating any power, which should declare the amount or the snare or shares from which no object of the power should be excluded, or some one or more object or objects of the power should not be excluded (sect. 2). [Doctrine of Fraud upon a Potver Restated. — Trustees may have a special power conferred upon them in the shape of a power of ap- 522 ALEYN V. BKLCIIIER. * 470 pointmcnt, that is, a power to bo excrciKed as thoy in their own dis- cretion think best. This power, '"in all cases must be construed ac- cording^ to the intention of the i)arty creating it, if such intention is compatible with the rules of law, and such intention must bo de- termined from the instrument." Perry on Trust, Sec. 478. The donee of the discretionary power must act bonCi fide and if he makes the appointment with a view of obtaining the fund it is a fraud on his power. The fact that the promises to exercise the power in a certain way is not a fraud and does not disqualify him: Williams' Appeal, 23 P. F. Smith, 249; further, the courts will not infer that an appointment is a fraud upon a power unless there are such cogent facts that "it cannot reasonably come to any other con- clusion. If the power is not exercised in good faith and for the purpose for which it was created, its exercise equity will deem to be fraudulent and will set it aside upon bill filed by any party in in- terest. The same rule applies to appointments made through un- due inliuence over the appointee, or with an expectation of the death of the appointee and a succession to his estate; or to any case in which the motive of the appointer is to acquire any direct or indi- rect benefit for himself. The appointment will also be considered as fraudulent if it made for the benefit of a stranger and not for the object of the power. If a discretionary legal power is given to a man and his as- signs, the assigns or any one claiming under them by operation of law may execute the power: Montague v. Davis, 14 Allen, 369; bxit if the power has been confided to the man himself it can- not be claimed by his assigns or anyone else. It is also to be ob- served that whatever powers a trustee may possess, if the trust is before the court, and a decree has been made the powers of the trustees are thenceforth so far changed that they must have the sanction of the court for all their acts (Perry, Sec. 474). The creation of trusts in the form of powers occur where no positive direction is given that the trustee shall hold for the par- ties interested, but he is authorized to give them an interest if he sees fit. J 523 472 COUNTESS OF STRATIIMORE V. BOWES. [-471 ] * COUNTESS OF STRATHMORE v. BOWES. JIarc/i 2nd & Srcl 1789. [reported 1 VES. JUN. 22.] \_S. C. on the first hearing, 2 Bro. C. C. 345 ; 2 Cox 28, affirmed, appeal 6 Bro. P. C. A21, Toml. eel.] Fraud on JVIarital Rights.] — A tcovian, pending a treaty of mar- riage ivith A., settled all her property to her separate use, with his approbation; a few days after, B., by stratagem, induced her to marry him, the day after she first thought of it : B. had no notice of the settlement. The settlement was established, and a deed of revocation obtained by duress set aside. * The burthens, to ichich a husband is liable, are a consideration for his marital rights, upon which, therefore, fraud may be committed. Conveyance by a woman under any circ^imstances, and even the moment before marriage, is good, primd facie: is bad only if fraudulent, as where it is made pending the treaty, without notice to the intended husband. Lady Strathmore being seised and possessed of great property, both real and personal, pending a treaty of marriage with Mr. Grey, conveyed all her real, and assigned all her personal, estate to trustees for her sole and separate use, notwithstanding any future coverture. This settlement was prepared with the approbation of Grey. A few days after the execution, hearing that Mr. Bowes had fought a duel on her account with the editor of a newspaper, who had traduced her character, she determined to marry him, and the marriage took place the next day. Bowes had not notice of the settlement. There were two bills: an original bill by Lady Strathmore, to set aside a deed revoking the settlement, as having been ob- [ *472 ] tained by duress; and a cross bill by Mr. * Bowes, to set aside the settlement, as against the rights of marriage, and a fraud upon him, and to establish the deed of revocation. 524 COl'NTESS OF STRATIIMORK V. BOWES, * 473 An issue was directed, to try whether the deed of revocation had been obtained by duress; and the verdict in the Common Pleas was against the deed. The cause coming on upon the equity reserved, Mr. Justice Buller, sitting for the Lord Chancellor, decreed in fa- vour of Lady Strathmore, and dismissed the cross bill with costs. It came on again, upon the petition of Mr. Bowes, for a rehearing and reversal of that decree so far as it dismissed the cross bill. Mr. Richards, for Mr. Bowes. — The questions is, whether this settlement, made before marriage, is valid or not, as being in dero- gation of the common rights of marriage. A wife, by the mar- riage contract, becomes extinct, from the nature of it, for several civil purposes with regard to which she merges in the husband.* He becomes liable to all her debts, and answerable for all her acts that do not amount to felony; and even for that, if committed in "his presence; because her mind is supposed to be under his coercion. In order to enable him to answer this, he has by the law all her pro- perty. It is absurd to say, the wife shall by her own act deprive the husband of what the law has given him. It was not decided till lately, that a legacy to a wife for her sole and separate use would have been good without the interposition of trustees; and this case is much stronger, because to be construed more strictly than a de- vise; nor can the interposition of trustees make any difference, be- cause it cannot alter the nature of the thing. As to his not having made any settlement on her, many marriages are made without any: and in this case it could not be necessary; for she had 10,000/. or 12,000Z. a year, a great estate for life, and much personal property. There is another principle very material: marriage, by the law of England, gives the husband the whole dominion over the pro- perty, and also over the person of his wife, except as * to murder; for, by the old law, he could not be punished [ * 473 ] for cruelty towards her. The civil existence of the wife merged in that of the husband: he is the head of the family; to make another would be against the policy of the law. If the wife can by her own act, against the consent of the husband, make her- self independent of him, it will destroy that subordination so neces- sary in families, which is analogous to that in the state, and tends to support it; for if Lady Strathmore is right in this, the husband is become a cipher in his own house; for he cannot educate his 525 * 474 COUNTESS OF STRATPiMORE V. BOWES. children, or do any other act, which by law he has a right to do. The deed was executed on the 10th or 11th of January, and the marriage took place upon the 17th. If the deed had been meant fairly in contemplation of marriage, the husband would have been a party to it: there is no instance to the contrary; and it is neces- sary, in order to testify the consent of the husband. In Howard v. Hooker, 2 Ch. Rep. 81, a settlement by the wife, before marriage without notice to the husband, was set aside. In Lance v. Norman, 2 Ch. Rep. 79, a bargain entered into by the wife, before marriage, was set aside, because the husband was not a party; and this case is stronger: because there, the wife was only made poorer; but here she is made quite independent of the husband. In Carleton v. Dorset, 2 Vern. 17, the estate was made over, before marriage, to trustees without privity of the husband; and a conveyance was decjreed to the six-clerk, and the personal property to be paid into Court for the husband, because in derogation of the rights of mar- riage; and in Edmonds v. Dennington, cited in the foregoing case, a deed of settlement made before marriage, without notice to the husband, .was set aside. In Poulson v. Wellington, 2 P. Wms. 535, Lord King said, that if a woman before marriage settled her pro- perty, without giving notice to the intended husband, it would, as to him, be fraudulent and void. In Cotton v. King, 2 P. Wms. 358, 674, Lady Cotton, widow, had ten children by her first husband, and before the second marriage, by indenture settled part of her [ *474] fortune in their favour * (reserving, however, a consider- able portion), without notice to the husband. King filed a bill to have this deed delivered up to him: but as the transaction of making the deed had been pu.blic; as she had so many children by her first husband, for whom it was reasonable to provide before she entered into a second marriage; and as the second husband was a person in mean circumstances, and had received a good fortune with her; and as she had reserved something to herself, King's bill was, for these reasons, dismissed. This decision shows, that if it had not been for the benefit of the children of the first marriage, and on account of these several circumstances, it would not have been good. Upon these cases, and the principle of the thing, this settlement is void, as being in derogation of common right. It is to be observed that in all these cases something was reserved; here there is nothing; for Lady Strathmore has conveyed all her real, and assigned all her personal, property to trustees, for her own use; 526 COUNTESS OF STRATFIMOKE ?.'. BOWES. * 475 and the circumstance -of appointing trustees -will not alter tLe na- ture of the thing, though it drives us into a Coxirt of equity. Mr. Mansfield, Mr. Hurdimje, Mr. Law, and Mr. King, for Lady Strathmore. — ^Lady Strathinore is in possession by a deed to trustees, giving her own property to her use. It was done in contemplation of marriage with another person; therefore not fraudulent as to Mr. Bowes, unless any deed by a feme sole, by which she disposes of her property, shall be construed to be fraudulent, if not communi- cated to any future husband. Want of communication is the only circumstance that can be alleged; but that is very different from concealment, for which there can be no pretence here. It is true, a man by marrying a woman gains a dominion over her property, and in a great degree over her person, though perhaps not to the extent contended; but he had nothing to do with this property, for it was not in her at the time of the marriage, having been previously vested in trustees: and as every man knows that a woman may settle her property so that a future husband shall not be able to * touch it, Mr. Bowes ought to have enquired about it be- [ * 475 ] forehand. There is no preteuce of actual imposition upon him, nor even upon Grey. The deed was prepared by a gentleman of the first credit; she had several children by Lord Strathmore; she was going to marry Mr. Grey, and make this previous settlement for her children; and she acted meritoriously and honourably in so do- ing. The deed was with Grey's knowledge and under his direction; his approbation of it appeared by his having called to know when it would be ready, and to hasten it; and it was prepared, though not executed, a month before the time of the marriage, therefore not fraudulent as to Mr. Grey; and there is no authority for vacating a settlement made by a woman for the protection of her children with- out fraud. Mr. Bowes made no settlement on Lady Strathmore; neither did King upon Lady Cotton, in the case cited (which was one of the grounds of the decision in that case), though Bowes had some fortune by a former wife. He took Lady Strathmore as she then was, with what she then had; therefoi-e there is nothing fi-aud- ulent or that can entitle him to relief in this Court. Knowing that she was a woman subject to sudden and violent impulses of gene- rosity, he made use of a vile artifice to obtain her by means of a sham duel (for it is in every stage of the cause admitted to have been so) with the proprietor of a newspaper, who had traduced her; and the emotion and precipitation which he caused by this artifice, was the 527 *47G COUNTESS OF STRATHMORE V. BOWES. cause wbicli prevented the communication of the actual situation of her fortiine. After this, Mr. Bowes made use of the most reproach- ful means to set aside this deed: and the verdict was, that the revo- cation was obtained by violence. He would not have done this, bad he not thought the deed a.good one. The reason of the case is (nor is there a dictum to the contrary), that where a woman about to marry, represents herself as possessed of a fortune which she had previously disposed of, this Court will not permit the husband to be cheated. Howard v. Hooker, to which all the cases refer, was of that [ * 476] kind, being a specific fraud * upon the husband. The mar- riage had been broken off, and was brought on again by the interposition of friends, upon the idea of the husband that he was to enjoy the wife's fortune, in consideration of which he made a settle- ment on her of 500Z. a year. In Lance v. Norman, the wife before marriage entered into a recognizance, concealed from the intended husband, and the object of it was to enable the creditor, who was her own brother, to distress the husband; and they had made an attempt to defraud him before, by getting him to sign a deed which was in Latin, that he might not understand it, telling him it was only a memorandum. In Carleton v. Dorset, the wife conveyed all her for- tune to trustees for her own use, with permission to herself to ap- point, and in default of appointment, to her own right heirs, and afterwards married: here the case was, that the husband had assur- ance that he was to enjoy the estate of his wife; and the decree was upon the ground that it was a trust for her, with power to appoint; and as she made no appointment, it was resolved to be a trust for her husband. Besides in that case, the fortune was paid into court, and a reasonable allowance was to be made to her. It has been re- marked, that the foundation of the decree in Kiyig v. Cotton was, that it was to provide for children, which has been said to be the only case in which this can be good: but the settlement on children^ or on any one else, will not make any difference; the question is, what right the husband has; if he has any right, notwithstanding any voluntary disposition without notice to him, because he was de- ceived, the manner in which that deceit was practised will make no difference with respect to him; for the ground for relief must be, that he was cheated, because the settlement was not communicated to him. King v. Cotton is for Lady Strathmore; for Lady Cotton had dis- posed of her fortune so as to put it quite out of the power of her hus- band; and yet the settlement was established. As to Edmonds v. 528 COUNTESS OF F/niATHMORH V. BOWKS. •• 4TS Dennington (i), Mr. Justice BaW-.r suspected that it was misreported ia Veraon, where it is ouly a loose note cited at the bar; and, on inspecting the * register, the decree turns out to bo [ * 477 J quite different from that report; for the deed was estab- lished upon the ground of distinct notice to the husband; and, in that case, as in this, the settlement was all her property. Thes^e cases, therefore, ouly go on the ground of fraud of the husband, of which there is no suggestion here. But this is not a question upon a deed executed by a future wife pending a treaty of marriage with a future husband; nor upon a deed made in prejudice generally of marital rights; nor of a settlement by a husband, by which he pays for his future power over the fortune of his wife. Suppose a hus- band to say he is indifferent as to the fortune of his wife, in order to appear disinterested ; suppose, having a fortune, he makes no set- tlement; and suppose the marriage instantaneous, no time beintr given for communication or concealment, is it enough for the hus- band to say, his secret hope was disappointed? The only pretence here is, that he expected her fortune would have been greater than it proved, which expectation he did not disclose. To make this deed valid, is only to put a safe-guard in her hands against the conse- quences of an improvident marriage; and she had a right, while sui juris, to baffle, for so much, what would otherwise have been the marital power of her husband. It is enough for us to say, Mr. Bowes was not cheated. Lord Chancellor Thuelow. — The mere question seems to be, what is the true foundation for setting aside an instrument prima facie good? Can less be imputed to it than fraud? Or can it be void upon the notion of general policy, as has been urged by Mr. Bowes? If not, must not fraud bo imputed? and, if so, will the circumstances of its being made in contemplation of marriage affect it with fraud? Suppose a relation had given 10,000/. for her solo and separate use; if she had represented it as her own absolutelv, 80 that, upon a marriage, it would have gone to her husband, this Court would have compelled the trustees to give it to the husband, but not otherwise [k) ; nor is there any difference between a * fortune so circumstanced by an act of her own, or of [ * 478 ] the donor. Consider what will be the effect of this void (i) And see 1 My. & K. 621. yk) See Ashton v. M'Dougall, o Beav. 66. 34 WHITK ox EQUITY. 529 * 479 COUNTESS OF STRATHMORE V. BOWES. c"eed of revocation ? If he had joined with her to revoke that settle- ment and appoint new uses, he could not have rescinded that after- wards; because he had af&rmed the deed by actinor upon it. If he had acted honestly upon it, as in the case I have put, he could not have set that aside; his counsel are to show that he may, because he has acted dishonestly upon it, which at present I think rather a vain attempt. Mr. Partridge was to have argued for Mr. Bowes, by way of re- ply, at his own request, but could not attend. Lord Chancellor Thurlow.— I never had a doubt about this case. If it is to be considered upon the ground of its being against a rule of judicial policy, the arguments of Mr. Bowes would have had gi'eat weight. The law conveys the marital rights to the hus- band, because it charges him with all the burthens, which are the consideration he pays for them; therefore, it is a right upon which fraud may be comitted. Out of this right arises a rule of law that the husband shall not bo cheated on account of his consideration. A case of this kind came before me a few days ago (Z). A woman adult, about to marry an infant, made a settlement, in contempla- tion of that marriage, in which he joined, though an infant, for the purpose of expressing his consent. As it was upon fair considera- tion, and no fraud to draw him in as an infant, I thought the cir- cumstance of its being fair would bind him, though as an infant, not capable of consenting; according to* which I held the settlement good, as she was capable of conveying; and as it was a public and open transaction, with the consent of the family, and consequently no fraud, though his being privy to it would not have concluded him from any rights as being an infant. A conveyance by a tcife, ivhatsoever inay be the circumstances, and eveyi the moment before the marriage, is primd [ * 479 ] * facie good, and becomes bad only upon the imputation of fraud. If a icoman, during the course of a treaty of mar- riage with her, makes, ivithotit notice to the intended husband, a conveyance of any part of her property, I should set it aside, though good primd facie, because affected ivith that fraud. As to the morality of the transaction, I shall say nothing to that. They seem to have been pretty well matched. Marriage in general seems to have been Lady Strathmore's object: she was disposed to \ (0 Slocombe v. Glubb, 2 Bro. C. C.~545! 530 COUNTESS OF STKATIIMORE V. BOWES. * 480 man-y anybody, bat not to part with her fortune. This settlement is to be considered as the effect of a lucid interval, and, if there can be reason in madness, by doing this she discovered a spark of un- derstanding. . The question which arises upon all the cases is, whether the evi- dence is sufficient to raise fraud. Even if there had been a fraud upon Grey, I would not have permitted Bowes to come hero to com- plain of it. But there was no fraud, even upon Grey, for it was with his consent; and so I cannot distinguish it from a good limita- tion to her separate use. Being about to mairy Grey, she made this settlement with his knowledge; and the imputation of fraud is, that having suddenly changed her mind and married Mr. Bowes, in the hurry of that improvident transaction she did not communicate it to him; but there was no time, and could be no fraud, which consists of a number of circumstances. It is impossible for a man marry- ing in the manner Bowes did, to come into equity and talk of fraud. Therefore the decree must be affirmed, with costs; but let him have all just allowances as to what ho paid when in receipt of the pro- fits, and as to the annuities, which are declared not to be disturbed by the decree. In the well-known case of Sfrathmore v. Bowes, the rule upon which Courts of equity act in setting aside a settlement made by a woman of her own property previous to marriage, in violation or fraud of the marital rights of her intended husband, is well laid down by Lord Thurlow. " A conveyance by a wife," observes his * Lordship, "whatsoever may be the circumstances, [ * 480 ] and even the moment before the marriage, is prima facie good, and becomes bad only upon the imputation of fraud. If a woman, during the course of a treaty of marriage with her, makes, without notice to the. intended husband, a conveyance of any part of her property, I should set it aside, though good prima facie, be- cause 'effected with that fraud." [See Freeman r. Hartman, 45 111. 57; Wilson v. Daniels, 13 B. Mon. 351; Cheshire r. Pavne, 16 B.Mon. 618; Robinson r.Buck, 21 P. F. Smith, 3'J2; Duncan's Ap- peal, 7 Wright (Fa.), 67.] The decision, however, in Strathmore v. Boices, does not come within the principle of those cases in which, according to the rule as laid down by Lord Thiirlou; a Court of equity would set aside a settlement of a woman's property, made by her previous to marriage; for it will be observed, that the settlement was made by Lady Strathmore with the consent of Grey, her then intended husband, and not during the course of a treaty of marriage with Bowes, 531 * J-Sl COUNTESS OF STRATIIMORE V. BOWES. -0-hom sbe afterwards married, and it was, thorefore, not a fraud upon hira. The settlement, to use Lord Thurloid's words was prima facie good, and there was no imputation of fraud to render it bad. [If a man or woman who is on the point of marriage, privately con- veys away his or her property for the purpose of depriving the in- tended husband or wife of the legal rights and benefits arising frorfi such marriage, equity will avoid such a conveyance, or compel the person taking it to hold the property in trust or subject to the rights of the defrauded husband or wife: Perry on Trust, sec. 213; Smith V. Smith, 2 Halst. Ch. 515; Waller v. Armstead, 2 Leigh. 11; Tucker v. Andrews, 13 Me. 124; Logan v. Simmons, 3 Kich Eq. 404; Duncan's Appeal, 43 Pa. St. 67; Linker v. Smith, 4 Wash, 224.] "■ Strathmore v. Bowes" observes Lord Loughborough, "went upon this, that the deed was honest and proper, being made in contem- plation of a marriage with another person, and with the consent of that person:" Ball v. Montgomery, 2 Ves. jun. 194; see, also, McDonnell v. Hesilridge, 16 Beav. 346. It is necessary, therefore, for a person impeaching a settlement, to prove that, at the time of its execution, he was the then intended husband, otherwise it will not be set aside; England v. Downs, 2 Beav. 522. It is clearly settled, that if a woman, during a treaty for marriage, holds herself'out to her intended husband as entitled to property, which will become his upon the marriage, and then makes a settle- ment of it without his knowledge or concurrence, actual fraud will be imputed to her, and the settlement will be set aside in a Court of equity: England v. Doivns, 2 Beav. 528; see also Hoivard v. Hooker, 2 Ch. Eep. 81 ; Carleion v. The Earl of Dorset, 2 Vern. 17; S. a, 2 Cox, 33. . [Kline v. Kline, 7 P. F. Smith, 120; Logan v. Simmons, 3 Ired. Eq. 487.] It was observed by Mr. Justice Buller, when Strathmore v. Bowes, was before him, that " Fraud consists in falsely holding out that a woman has an estate unfettered and that the husband will be of course entitled to it. No case has yet established, that all convey- ances by a wife before marriage are void, merely because not com- municated to the husband:" 2 Bro. C. C. 350; 2 Cox, 29. And again, he says, " It is necessary to show other facts, and that the husband is actually deceived and misled; and that the bare con- cealment is not sufficient:" 2 Cox, 30. These dicta, how- [ * 481 ] ever, * of Mr. Justice Buller can scarcely be supported, al- though there have been some cases in which, under pecu- liar circumstances, it has been held that a bare concealment by a woman from her intended husband, of a gift or a settlement of part of her property made during the treaty for a marriage, was not sufficient evidence of fraud, so as to render the settlement void as against the husband. Thus, in Thomas v. TVilliams, Mos. Ill, a woman, during a treaty of marriage, released a legacy to which she was entitled, without the knowledge of her husband. Lord King, however, refused to set aside the release, because it did not appear 532 COUNTESS or STRATIIMOUi: /•. DOWES. * 4S2 that ho over inquired after the h'l^acy. So also in De Mandevillfi v. Cr(>ni])f()n, 1 Y. & B. 354, a dauirhter, after instructions ^vere {^iven for her marriage settk'mont, by which she assigned all monies, debts, bills, bonds, notes, and other securities for money, and chat- tels real, and other chattels, and personal estate, to trustees, upon trusts under which her intended husband took only a partial and contingent interest, without his knowledge cancelled a promissory note for 20(X)Z., which had been given to her, without consideration, about seventeen years before, by her mother, then a widow, as a provision in case she should marry again; Lord Eldon held, that the husband was entitled to no relief with regard to the note. '"My opinion," observed his Lordship, "is that the marriage was not upon any representation as to the amount of the property, that it should bo in no way diminished, or that this note should make part of the settlement; and I should go beyond any precedent by holding that here Avas a misrepresentation leading to marriage, which was either fraudulently or substantually defeated by Avhat took place afterwards with reference to this note." However, in Goddard v. Snow, 1 Russ. 485, a woman, ten months before marriage, but after the commencement of that intimate ac- quaintance with her future husband which ended in marriage, made a settlement of a sum of money which he did not know her to bo possessed of. The marriage took place, she concealing from him both her right to the money and the existence of the settlement. Ten years afterwards she died, and after her death the husband filed a bill to have the money paid to him. It was argued, on behalf of the defendants, that, as the husband did not know of the existence of the sum of money, and was, therefore, not induced to contract the marriage on the notion that it would be subject to his marital rights, no fraud, such as the authorities held to bo necessary, had been committed ; that there was, at the utmost, only concealment, and that concealment alone was not sufficient to avoid a settlement * confessedly valid at law. Lord Gifford, M. R., [ * 482 ] however, held that the settlement was void against the hus- band, as a fraud upon his marital rights; and his Lordship said, that the opinion of Lord Thurlotc, in Strathmore v. Boices, was, that if a woman, contemplating marriage Avith an individual, made a settle- ment of her pro[)erty on herself, reserving to herself the dominion over it, and concealed that settlement from her husband, the settlement was a fraud on his marital rights, wliicli he was entitled to avoid. See St. George v. Wake, 1 ]\Iy. & K. 022, where Lord Brougliai)i says, that the principle was carried further in Goddard v. S)iou' than in any other case. See also Downes v. Jennings. 32 Beav. 2U0 ; Prideaux v. Lonsdale, 4 Giff. 159; 1 De G. Jo. & Sm. 433; Chambers V. Crabbe, 34 Beav. 457. [And such a settlement will be set aside by a chancellor on the application of the husband: William r. Carle, 2' Stock. Ch. 543 ; Ferry v. Hopkins, 1 Hill. Ch. 1 ; Tucker v. Andrews, 13 Me. 124.] 533 * 483 COUNTESS OF STRATIIMOEE V. BOWES. It has been supposed that a settlement by a widow upon her childi-en by a former marriage, even if made during the treaty for a second marriage, without the knowledge of her intended husband, is valid, because the object of the settlement, it has been said, is meritorious. Hun*- v. Matfheivs, 1 Vern. 408, and King v. Cotton, 2 P. Wms. 674, Mos. 259, have been cited as supporting the proposi- tion; it appears, however, by an extract from the decree in Mr. Raithby's edition of Vernon, that the husband, in Hunt v. Mhtthews, conf^ented to the settlement being made by his intended wife upon her children by a former marriage; and in King v. Cotton, the settle- ment was made by Lady Cotton upon the children of a former mar- riage, previous to her entering upon a treaty for a second viarriage. These cases, therefore, only decide that a settlement is valid if made by a woman upon her children by her former marriage, either with the consent of the intended husband, or without his consent or knowledge, if mnde previous to the treaty for marriage; but it is conceived that a provision for children would not render a settle- ment valid which without it would be fraudulent; for although in the execution of a settlement, so far as it makes provision for her children, a woman may perform a moral duty towards her children, she has no right to act fraudulently towards her husband; and she can, in such circumstances, only reconcile all her moral duties by making a proper settlement on herself and her children, with the knowledge of her intended husband. See England v. Doivn, 2 Beav. 528, 529; in which case, however, the settlement made by a Avidow upon herself and the children of a former marriage was held not to be fraudulent, because it was not proved that the person she after- wards married was at the time of the execution of the settlement, "/ler then intended husband.'''' [ * 483 J The mere fact that the intended * husband was ignorant that his wife had any property, or that she has practised no actual deception upon him, will not, it seems, be sufficient to prevent the Court from setting aside a settlement made in fraud of the marital right. See Taylor v. Pugh, 1 Hare, 608, in which case, however. Sir James Wigram, V.-C, decided against the husband upon other grounds. But a gift or settlement, by a woman, of her property, during the treaty for marriage, will not be set aside, if the husband knew of the gift or settlement before the marriage : St. George v. TFaA-e,! My. & K. 610; Ashtonv. M'Dougall, 5 Beav. 56; Griggs \. Staplee, 2 DeG. & Sm. 472; Wrigley v. Sivainson, 3 De G. & Sm. 458. See 1 My. & K. 619. [The rule under consideration will not apply to property of the wife to which the marital rights would not have attached, as where the woman has a life estate to her separate use to the exclu- sion of any future husband, with an absolute poAver of appoint- ment by deed or will, and she exercises the power before marriage by the execution of a settlement on herself: Bispham's Eq. sec. 254; Cole v. O'Neill, 3 Md. Ch. 174.] 534 COUNTi;SS OF STRATHMORE V. BOWES. * 484 The seduction by a man of his intended wife may be a reason why a Court of Equity should not set aside a setth>ment made by her before marriage. Thus, in Taylor v. Pugh, 1 Hare, COS, where a man had induced his intended wife to cohabit with him previously to marriage, Sir J. Wiyram, V.-C, refused to set aside a settlement of her property, although executed without his knowledge, during the treaty for the marriage, because her husband, before the mar- riage, had put it out of the power of the wife effectually to make any stipulation for the settlement of her property, by his conduct towai'dsher. "Ketirement," said his Honor, "from the marriage on her part was impossible. She must have submitted to a marri- age with her seducer, even although he should have insisted on re- ceiving and spending the whole of her fortune." But see Doivnes V. Jennings, 32 Beav. 290. The concurrence of the husband in making a settlement will pre- clude him from taking any objections to it; but not, it seems, if he be a minor." See Kuigsinan v. Kingsman, G Q. B. D. 122; Nelson v. Stocker, 4 De G. & Jo. 458. The case of Slocombe'w Glubb, re- ported in 2 Bro. C. C. 545, and referred to by Lord Thurlou; in the principal case, was, according to Lord *S'eZ6orn6, decided against the husband, who had concurred in the settlement while a minor upon the ground "that as he had taken a benefit under the settle- ment, he could not reject it in part and accept it in part :" Kingsman V. Kingsman, 6 Q. E. D. 125. As to settlements made under The Infants Settlements Act (18 & 19 Vict. c. 43), see note to Eyre v. Countess of SJiaffsbury, Yol. II. post. In a recent case, however, a settlement made by a woman of her personal property' after, her engagement to be married, was set aside at the suit of the husband, although he was told before the marriage that she had executed a settlement affecting her prop- erty, it appearing that neither she nor her husband was accurately * informed of the nature and effect of the [ * 484 ] trusts of the settlement: Prideaux v. Lonsdale, 4 Giff. 159, 1 De G. Jo. & Sm. 433. If a hv\sband acquiesces in, or confirms, a settlement, he will not afterwards bo allowed to dispute it: Maber v. Hobbs, 2 Y. & C. Exch. Ca. 317; England v. Downs, 2 Beav. 535; Ashtonv. M'Dou- gall, 5 Beav. 56; Grazebrook v. Percical, 14 Jur. 1103; Loader \. Clarke, 2 Mac. & G. 382. But in Downes v. Jennings, 32 Beav. 290, 523, it was held that delay in instituting a suit for two and a half years after the discovery by the husband of the settlement did rot operate as a bar to the relief sought. [A settlement will not be set aside if the intended husband has notice of it at any time, no matter how short the interval may be, before the marriage: Cheshire v. Payne, 16 B. Mon. 618; Ferry v. Hopkins, 1 Hill, Ch. 1.] It seems, however, that the representatives of a husband after 535 * 485 COUJSITESS OF STRATHMORE V. BOWES. his death have no equity against the wife, if he dies without hav- ing discovered the fraud on his marital rights: Grnzebrookv. Per- cival, 14 Jur. 1103. If a woman gives a security to a volunteer, prior to marriage, without the consent of the intended husband, it may be set aside by him. Thus, in Lance v. Norman, 2 Ch. Eep. 79, the wife of Lance, the plaintiff, the day before her marriage, was persuaded to enter into a recognizance of 2000/. without defeazance, to her brother, the defendant, without the privity or consent of the plain- tiff. The Court, being assisted by the judges, held, that the recog- nizance was entered into whereby to defraud the plaintiff; and de- creed it to be sel aside and vacated on the record thereof, and granted a perpetual injunction against it. But where a woman, about to marry, gave a bond for valuable consideration, although without her intended husband's knowledge, it was held by Lord Hardioicke, that the husband could not be relieved against it. "If," observed his Lordship, "a woman about to marry parts with part of her property, or gives a security or assigument, they are relievable against in this court; but where a debt is con- tracted for valuable consideration, though concealed from the hus- band, it is no fraud on the marriage. But concealment of such securities, or debts is not to be encouraged;" Blanchett v. Foster, 2 Ves, 264; see also Lleivellin v. Cobbold, 1 Sm. & Giff. 376. A secret settlement made by a woman whilst under a treaty for mar- riage, though liable to be set aside in equity, was held, previous to the Judicature Acts, not to be necessarily void in a court of law: Doe d. Richards v. Letvis, 11 C. B. 1035. It seems to be doubtful how far Courts of equity will interfere in favour of women, against secret acts of the husband immediately before marriage to deprive them of their right to dower. It is, how- ever, said by Lord C. B. Gilbert, that a conveyance in trust privately made by the husband on the eve of marriage, for the purpose of barring dower, would be decreed fraudulent, as being de- [ * 485 ] signed to dejOTve *the wife of the provision given her by the Common law: Lex Prset. 267; 1 Bright, H. & W. 356; and see Drury v. Drurij, Wilmot's Opinions, 177; 4 Bro. C. C. 506, n. Lord Harchcicke, however, treats it as clear, "that if a man, be- fore marriage, conveys his estate privately, without the knowledge of his wife, to trustees, in trust for himself aod his heirs in fee, that will prevent dower:" Stvannock v. Lyford, Co. Litt. 108, n. 1; and see Banks v. Sutton, 2 P. Wms. 700. [The rule which forbids the disposition of property by a woman, in contemplation of marriage to the injury of the right of her intended husband, has also been ap- plied to the case of a man conveying his property away in fraud of an intended wife: Baird v. Stearne, 15 Phila. 339; Cambell's Appeal, 30 P. F. Smith, 309; Petty v. Petty, 4 B. Mon. 215; Smith V. Smith, 2 Halst. Ch. 515.] It has also been observed that the reasons for which it has been 530 COUNTESS OF STRATIIMOIIE V. BOWES. * 485 held that a conveyance privately made by a woman dnriritr a treaty of marriage ispr///((?/aci« fraudulent and void, do not ai)[)ly ^vith e(pial force to a conveyance made under similar circumHtances by the intended husband; because estates are now most commonly conveyed or settled so as to prevent dower from attaching, it is not necessarily to be presumed that the marriage was contracted by the woman in the expectation of becoming entitled to that provision, unless it appears that representations to that effect were made to her (1 Bright, H. & AV. 357); and perhaps these reasons would ap- ply more forcibly in the case of women married since the Dower Act (3 & 4 Will. 4, c. 105) (which puts dower entirely in tlie power of the husband) came into operation. See also M'Keogh v. AVKeogh, 4 I. Eq. 338. For a decree on setting aside a settlement as a fraud on marital rights, and trusts of a new settlement declared, see Seton on De- crees, 1368, 4th ed. It is presumed that a woman about to be married, who had availed herself of the powers conferred upon her by the Married Women's Property Act, 1870 (33 & 34 Vict. c. 03), ss. 3, 4, 5, to in- vest in the funds, joint stock or other companies, or in societies duly registered, certified or enrolled, would have come within the rule laid down in Straihmore v. Bowes, if she had not obtained the concurrence of her intended husband. [If the disposition of the property has been made for a valuable consideration, it will be sus- tained. The true rule appears to be, that the consideration must bo valuable and that a settlement made upon a meritorious considera- tion will not be good as against the husband, even if made for the benefit of children by a former marriage.] But the Married Women's Property Act, 1870 (33 & 34 Yict. c. 93), and The Married Women's Property Amendment Act, 1874, ' have been repealed, except as to acts done or rights acquired there- under, by the Married Women's Property Act, 1882 (45 & 40 Yict. c. 75), 8. 22. It seems that as a woman married on or after the 1st of Jan. 1883, will, under the Married Women's Property Act, 1882 (45 & 40 Yict. c. 75), be entitled to her property at and after her marriage to her separate use, the right of the husband to set aside a settlement made by the wife under the rule laid down in Sfratlnnore v. Boms, can no longer be enforced, since the marital right of the husband to protect Avhich the rule was enforced, has by the last-mentioned Act been almost in effect abolished. See note to Hubue y. Tenant, post. \_Doct)'ine of Fraud on Marital Rights Restated. — If a woman who is entitled to property enters into a promise for marriage and during the arrangement represents to her intended husband that she is so entitled, and that upon their marriage he will become en- titled Jure mariti, and if during the treaty she conveys away the 537 * 486 LADY ELIBANK V. MONTOLIEU. property, either for the benefit of a third person, or to secure it for her separate use, it is plain that an actual fraud has been practised on the husband. " It is true that the non-acquisition of the property is no disap- pointment, but his legal right is defeated: " Adams on Equity, Sec. 181. It is for the court to determine in each individual case, having reo-ard to the condition of the parties, and the other attendant cir- cumstances, whether a transaction complained of should be treated as fraudulent. If an intended husband has no knowledge of the particular property conveyed, and the negotiations for the marriage have no reference to that particular property, its conveyance is not fraudulent unless it was actually intended as a fraud upon him. In all antenuptial contracts there must be the utmost good faith be- tween the parties, and a grossly disproportionate settlement may be evidence of a fraudulent concealment ] [*486] *LADY ELIBANK v. MONTOLIEU. ■ April IGtJi, 19th, 1799. Feb. 19t7i, 1801. [reported 5 vEs. 737. j Wife's Equity to a Settlement.] — Upon the bill of a married woman, entitled to a share of the personal estate as one of the next of kin of the intestate, against her husband and the ad- ministrator, the latter claiming to retain toivards satisfaction of a debt by bond from the plaintiff'' s husband to him, it icas declared he teas not entitled to retain : but that the plaintiff's share was subject to a further provision in favour of her and her children, the settlement on her marriage being inadequate to the fortune she then possessed; and it ivas referred to the Master to see a proper settlement made on her and her children, regard being had to the extent of her fortune and the settlement already made upon her. In 1795, Lady Cranstown died intestate, possessed of large personal property, leaving two brothers and two sisters her next of kin. 538 LADY ELIBANK V. MONTOLIEU. * 487 Lewis Montoliou, one of her brothers, took out letters of adminis- tratiou to her. The bill was filed by Lady Elibank, one of the sisters, against her husband Lord Elibank and against MontoYien, jjraying an account of the plaintiff^s share, and that it may be settled on her and her family. The defendant Montolieu, by his answer, claimed to retain Lady Elibank's share, towards satisfaction of the debt duo to him from Lord Elibank by two bonds — one dated the Slst of May, 1783, for 12,217/. 9.S. 9d.: the other, dated the 14th November, 1794, for lOOOZ. — upon * the ground of the provision made for [ * 487 j the plaintiff by the settlement previous to her marriage with the defendant Lord Elibank, in 1770. By that settlement, the sums of 12,000/. and 5000/. New South Sea Annuities wia-e settled in trust for Lord Elibank for life; and after his decease, for Lady Elibank for life, as a jointure, and in lieu of dower or thirds; and after the decease of both, in trust for the children. The sura of 4000/. New South Sea Annuities was settled in trust for her sepa- rate use for life; and after her death, for her children: and 2000/. 5/. per cent. Bank Annuities for her separate use for life; and after her death, for her children, as she should by will appoint. All these sums were her property before marriage. The settlement also gave her some contingent interests. In the entail of Lord Elibank's estate, a power was reserved to charge 200/. a year jointure, and 50/. a year to each of his younger children, not exceeding in the whole 200/. a year, under a condition, that the estate should be chargeable with only one jointure at a time; and that, if the power of charging for children had been exercised by a preceding heir in tail, the heir in possession should not charge for his younger children. The defendant Lord Elibank, by his an- swer, stated that a former Lord Elibank did charge to the full ex- tent of that power. The Solicitor -General, Mr. Grant, and Mr. Alexander, for the plaintiff. — The plaintiff desires an account of the personal estate of Lady Cranston, and that a provision may be made for her. The defendant Montolieu insists that is not to be done, because he is a creditor of her husband; contending that this case is out of the usual rule upon which the Court acts for a wife; and that there is no nec- essity to come to this Court, the fortune not being in Court nor 539 * 488 LADY ELIBANK V. MONTOLIEU. under the control of the Court. In Jewson v. Moulson (ni), Lord Hardwicke held, that is not a necessary ingredient to enable the Court to act upontheproperty ; and that this Court would interfere to prevent the husband from obtaining it through a Court of concur- rent jurisdiction, as the Ecclesiastical Court; because that [ * 488 J * Court cannot give the wife a remedy; though he doubted where it could be got at without the aid of this Court, of a court of concurrent jurisdiction; and he states that the rule is as old as the time of King Charles I., and cites a case from Tothill (n). There have been many instances of an injunction to restrain the hus- band from proceeding in the Ecclesiastical Court, refusing to make any provision for his wife; and that Court having no power to compel him. The cases upon this subject are collected in Mr. Cox's note to Bosvilv. Brander (o); and the result is, that, where the property is a subject of equitable cognizance, it is not material v;hether the wife, or the husband, or his representatives or general assignees, come for the aid of the Court. A wife in the situation of this plaintiff, therefore may come to this Court for the purpose of having that to which she is entitled secured to her and her family, and part settled to her sepa- rate use. She is entitled to the same reference as was directed in Worrall v. Marlar, and Bushman v. Pell (p), for the purpose of re- ceiving a proposal for the settlement. In Wright v. Rutfer (q), the Master of the Eolls observes, that it is now determined, that an ac- tion will not lie against the executor for property bequeathed to a married woman; and one of the reasons is, that the husband would get it free from the condition a Court of equity imposes. It is not necessary, therefore, that the property should be in this Court, or in the hands of trustees; for, if it was in the Ecclesiastical Court, or in the hands of an executor or an administrator, the interest of the wife is protected. That case related to a residue of personal estate in the hands of an administrator, for which it was not necessary to come here; but that was held not to make any difference. But, suppose the husband could sue at law, this defendant could not make this defence, that he will not pay, but will keep this fund in satisfaction of the husband's debt to him; for it is clear, at law, a creditor of the (m) 2 Atk. 417. (n) Tanfield v. Davenport, Tothill, 179; Mealis v. Mealis, Hil. 1764; 5 Ves. 517, note to Blount v. Bestland. (o) 1 P. Wms. 458. (p) 1 Cox. l."53; ] P. Wms. 459, Mr. Cox's note. Iq) 2 Ves. jun. 076. 540 LADY ELIBANK V. MONTOLIEU. * i'.)0 husband cannot set off tho husband's debt against the demand of the husband and wife, and being entitled in her right he must sue with her. Still less should he be permitted to retain in equity * upon that ground; for, where he is permitted to [ * 4S'.* J avail himself of the legal right, the right must be clear. There have been several other cases, in which the court has acted upon a residue, just as if the property was in the hands of trustees. The accident, that Montolieu is the administrator, cannot alter the right of the wife. In Afherton v. Knoivell, a husband, entitled in right of his wife to an income, being unable to maintain her, the Court referred it to the Master to see what it would be proper to al- low her out of that fund; Sleechv. Thorington (r); Watkijnsv. Wat- fcyus there cited (s) ; Milner y. Colmer (t); Oglander \. Baston (u). The only ground that can he taken against this bill is, that Lord Elibank became the purchaser of what might in the future accrue to Lady Elibank; but there is no stipulation of that sort in tho settlement, nor any indication of that intention. Oa the contrary, all the funds settled are her own, and a very scanty provision is made for her out of his estate. In Burdon v. Blaster, in 1775, the husband having become a bankrupt, the question arose between the assignees and the wife. Tho bill was filed by the assignees ; and, though an objection was raised on account of the settlement, the wife obtained her equity. In Pawlet v. Delavel {v) it is laid down that though the Court will make a decree, where the husband and wife are parties, where the wife has a proper settlement, to pay to the husband and wife, where the wife has not had a sufficient settlement the Court will not. As to the form of this suit, the wife sues alone, it is true, not with her husband ; but that was the case in Worrall v. Marlar; if she has the equity against her husband, she must be entitled to sue. The Attorney -General, Mr. Mansfield, and Mr. W. Agar, for the defendant Montolieu. — The objection to the form of the suit would merely occasion delay; and a bill would be filed in their joint names. Thfere is no case in which the Court has decreed against a trustee who had paid the kusband without suit that the wife had an equity to charge the trustee. The husband * suing in [ * 490 ] the Ecclesiastical Court, is suing persons unwilling to pay him; and the trustee or executor, so sued, has come into this Court to (r) 2 Ves. 560. (s) 2 Atk. 96. (<) 2 P. Wuis. 639. (m) 1 Vern. 396. (v) 2 Ves. 663. 541 ■V^ 4:131 LADY ELIBANK V. MONTOLIEU. restrain him. That is quite a different case. Suppose the husband institutes a suit in the Ecclesiastical Court, and the trustee submits to pay, could the wife come here and say, it was in fraud of her Equity? Lord Hardwicke, in Jeiuson v. Moulson, supposes a case, where the husband can come at the property without the aid of the Court. All the instances are, where the person has refused to pay, unless compelled by a Court of equity. That gives the jurisdiction; and none can be produced, where the executor has been prevented from paying to the husband, if he chose to do so; or where, having paid to the husband, he has been charged as upon a breach of duty by reason of that payment, and made to refund. The case of Worrall v. Marlar is a singular one, and was influenced by the in- solvency of the husband; but this plaintiff has a competent provision. This case is certainly new, in the circumstances that the husband is debtor to the other defendant; but if he could have paid the hus- band, and the Court would not have made him refund, there can be no difference from his retaining against the husband. Suppose Lord Elibank had sued, and the equity of the wife, having a very large provision, was out of the question, this Court' would never compel the administrator to pay that share to his debtor, unless the latter would allow the debt. This Court goes infinitely beyond Courts of law, as to set off. It would be strange to permit the wife to intervene against the administrator retaining, where she could not intervene to prevent his paying her husband, and the husband paying his debt out of that. Burdon v. Blaster, Jeivson v. Moulson, and all the other cases, go upon the same ground ; that the pro- perty was in the Court, and the husband, or his assignees, could not have it without the assistance of the Court. In this case the plaintiff comes to get it from the administrator, contrary to the plainest equity between him and her husband. There is no in- stance of a bill, by the wife against her husband, to have [ * 491 ] * the property settled to her separate use ; which is the object of this bill. This property, though subject to the equity of the wife, is the property of the husband : Packer v. Wyndham (iv). The Solicitor General, in reply. —Pacfcer v. Wyndhamhas noth- ing to do with this case. The wife being dead, and without issue, the question arose between the assignees of Mr. Packer, and the next of kin of Mrs. Packer; and it was i nsisted that, if the agreement (w) Prec. Ch. 412. 542 LADY ELILJANK V. MONTOLIEU, * 492 had been carried into execution, Mr, Packer would liave been enti- tled to the money: and sbe Laving been provided for during her life, and being dead, and not having left any children, the purpose for which the Court laid its hand upon the property, to secure a settlement, was at an end. The rule is clearly laid down in March V. Head (x), and it is now a settled rule, that if a husband, in right of his wife, becomes entitled to any sum exceeding 200/., this Court will not permit him to have it without a reference to the Master, for the purpose of a settlement, unless the wife consents that it shall be paid to her husband. The rule is clear, that, wherever the husband becomes entitled to sue in right of his wife, she must consent that he shall have it, or he is under the necessity of making a settlement, unless the master is of opinion that the settlement already made by the husband is such as to answer all the purposes , of the wife. Packer v. Wyndham is mentioned by Lord Hardicicke in Bates v. Dandy (y), as consisting of many particular circum- stances. Worrall v. Martor has determined, that the wife may file the bill by her next friend; and there can be no doubt, that this plaintiff has an interest that will enable her to file such a bill for the purpose of having her property ascertained. Lord Elibauk is passive. It is true, if he had assigned this to Montolieu, that might have bound the plaintiff; but he has not done so. This ad- ministrator stands in the character of trustee, and has no right to object, merely for his own advantage. If this bill should be dis- missed the defendant would not he discharged, but on the death of Lord Elibank the right would survive, and she might file *a new bill. It is not like a release. If a proper settle- [ * 492 ] ment has not been made, there must be a proposal laid before the Court, as in Worrall v. Marlar. That must be made by the husband, not by Montolieu, who has no more right than any other creditor. Lord Chancellor Loughborough (s). — I wish to consider this case. Lord Chancellor Loughborough. — The only difficulty I had in this cause was upon the form of the suit: whether a married wo- man, by her next friend, could be the plaintiff in this Court. With respect to the point made by the answer of Montolieu, that ~ (.r) 3 Atk. 720. ~^ [ij) 2 \tk. 2(37. See statpinent of Bates ?•. Dandy, from Keg. Lib. 1 Kuss. 33, n., and a note of Lord Hardwicke's judgmeut, 3 Russ. 72, n. (z) Aftei\vard.s Earl of Rossi vn. 543 * 493 LADY ELIBANK V. MONTOLIEIJ. - he had a right to retain against the debt of the hnsband, being pos- sessed of the fund as administrator, and the wife being one of the next of kin, I am very clearly of opinion the defendant had no right to retain (a). The administrator is trustee for the next of kin: the plaintiff being one of them, if she has any equity against her husband with regard to this money, that equity will clearly bar any rifht of retainer he can set up to the property, of which he became administrator. With respect to the only difficulty I had upon the point of form, if she is entitled, and there is no way of asserting her right against her husband, except by a bill, that objection, I think, does not weigh much. If the defendant Montolieu had done what would have been the natural thing and the right thing, and what he certainly would have done but for his own interest, he would have been the plain- tiff, desiring the Court to dispose of the fund, and for her benefit, to protect her interest in it. Then, upon all the circumstances, it is very clear, if it had come before the Court, it would have been mat- ter of course to have pronounced upon her equity upon the bill of the administrator, praying that the money in his hands might be properly disposed of: and I would not have suffered this money to be paid to Lord Elibank, without making a provision for [ * 493 ] her, for the provision upon her marriage *was clearly not adequate to her fortune; audit is clear that provision was made upon the expectation, that, by circumstances to occur in his family there would be an opportunity to do better for her at a fu- ture period. The difficulty was, that it was very unusual in point of form — the bill coming on the part of the wife, instead of the husband. Declare, that the defendant Montolieu is not entitled to retain, in satisfaction of the debt due from the defendant Lord Elibank to him, but that the distributive share of Lady Cranstown's fortune, accruing to the plaintiff, as one of her next of kin, is subject to a farther provision in favour of the plaintiff and her children, the settlement made upon her marriage being inadequate to the fortune she then possessed. Refer it to the Master to take the accounts, and to see a proper settlement made upon the plaintiff and her children, regard being had to the extent of her fortune and the set- tlement already made upon her. (a) See also Carr v. Taylor, 10 Ves. 574; Ex parte Blagden, 2 Rose, 294; Ex parte O'Ferrall, 1 G. & J. 347. 544 MURRAY V. LORD liLlBANK. * 494 MURRAY V. LORD ELIBANK. June Qth. July 8(Wi, 31.s-^, 1804. [reported 10 vEs. 84.] Right of children to a provision out of the property of their mother, under a decree directing a settlement by the husband on her and her children, notirifhstanding her death before the rejoort. Demurrer to the bill of the children ^vas overruled. The bill was filed by the infant children of Lord Elibank, stating the proceedings in the cause Lady Elibank v. Montolieu, and the decree, directing the Master to approve a proper settlement to be made by the defendant Lord Elibank on the plaintiff, Lady Eli- bank his wife, and her children by him, regard being had to the extent * of her fortune and the settlement already [ * 494 ] made upon her by Lord Elibank. The bill further stated, that before any report Lady Elibank died intestate; and prayed that it may be declared, that the plaintiffs and the defendant Alexander Murray, another child of Lord and Lady Elibank, have, under the decree of the 19th February, 1801, a right to have a provision made for them out of the said one- fourth of the personal estate of Lady Cranstown: and that it may be refen-ed to the Master to approve of a proper settlement to be made by the defendant Lord Elibank upon the plaintiffs and the defendant Alexander Murray, being all the children; regard being had to the extent of the fortune of Lady Elibank, and the settle- ment already made by Lord Elibank. To this bill the defendant Montolieu put in a demurrer. Mr. Alea-ander and Mr. Cooke, in support of the bill. — The question is, whether the children are entitled to sustain a supplemental suit, so as to have the benefit of the decree. This right is purely a creature of the Courts of equity of this country. Upon principle, why should the interest, given by the decree to 35 WHITE ON EQUITY. 545 - 405 MURRAY V. LORD ELIBANK. i>articular persons, beyond the interest of the parent, depend upon the accident of death ? But the interest of the children rests most safely on the uniform practice. In Roive v. Jackson (b), it was said by IVIr. Madocks, and assented to by the Court, that, where a husband sues for his wife's fortune, and is decreed to make a pro- posal for a settlement, and the wife dies, the husband shall be com- pelled to carry it into execution for the children; and he cited a manuscript case for that, and observed, that the same thing was said by Lord Thtirlotc, in 1779, upon a motion by Mr. Mansfield^ but it is otherwise if the wife dies before the decree. It is now de- cided, that the creditors of the husband are exactly in the same situation. An order was made by Lord Alvanley, enforcing the equity for the children, after the death of the wife, even against the assignment of the husband. It does not appear whether [ *495 ] the husband had * carried in a proposal before the death of the wife, or before the assignment; but that cannot make a difference, as the mere proposal could not bind more than the decree, in obedience to which it is made. The rule is now clearly settled, that the children have, through their mother, an in- terest in her fortune. The uniform language of the Court is, that the husband shall go before the Master, and lay proposals for a set- tlement upon the wife and children. It appears, from Hearle v, Greenbank (c), that Lord Hardivicke so considers it, and seems to think that a decree might be made after the death of the wife, the children, even after her death, having a right against the father for a provision. But here is a decree, establishing this right of the children in the life of the wife, and the settlement is to be consid- ered as made at the date of the decree, and in the nature of an agreement sanctioned by the Court, giving the husband the for- tune upon terms. In Martin v. Mitchell, the case before Lord Thur- low in 1779, the Court, after the death of the wife before a settle- ment, carried the proposal into execution against an assignment to a creditor. Mr. Richards and Mr. W. Agar, in support of the demurrer. — In the case, either a sum of money, the property of a married woman, which belongs to her husband in her right, or a bond or note, a chose in action, or what Lord Alvanley called a chose in equity, which the husband may recover, but, if he does not, will survive, the {b) 2 Dick. 004, stated also from a manuscript note of Mr. Eomitly. (c) 3 Atk. 69.5. See lb. p. 717. 546 MURRAY V. LORD KLIIJANK. * 49G debtor may pay the husband who may release him. It is his prop- erty subject to the contingency of survivorshii). A Courtof ec^uity will not assist him, unless he will make a settlement; but, if the wife does not desire a settlement, the Court will not make one for her; and it has been held, that the Court cannot refuse to the wife the power of giving the property to her husband. It is the prop- erty of the husband, to be extended to the wife and children, if she thiaks fit; but the Court would not, upon her de.sire in court, per- mit her to give it to any one else, as she might, if it was hers, in- dependent of the equity the Court attaches upon it. Having not the property, but an * equity only, she has no [ * 490 ] interest to give up. There is no analogy, therefore, to the case of a fine, in which an interest do,e8 pass. The trustee is justi- fied in paying the husband; but, if the wife had an interest in it, he would be answerable for that to her. But, supposing the wife to have some interest, can the children have any? If she is dead they cannot come here for a settlement: Scriven v. Tapley (d). It is said, the Court has, by the decree, given them an interest. They were not parties before the Court at the time that decree was made. They have no more interest in the propertj^ than a stranger; but are considered by the Court in a man- ner comprehended in the mother, while she exists, who is therefore allowed to extend her plan of provision to them, but not as distinct and separate objects, having an interest independent of her. Sup- pose Lady Elibank had waived the order for a settlement, and de- sired the money to be paid to her husband, the Court, considering the equity hers, would have held, that she might disappoint her children. The proposal, not completed and carried into execution by the Court, is oily an offer; and, if the wife dies before it is car- ried into execution, the husband is remitted to his legal right. In all these cases everything is given with reference to the wife — noth- ing independent of her. Only two authorities are produced for making any order for the benefit of the issue of the marriage after the death of the wife; the one, Roive v. Jackson, a very short note; the other, an order, made by Lord Alvanley, upon petition, by some slip in the absence of the assignees, who were not parties, and with- out even inquiring whether they had any objection to it. The property was very small, which perhaps might have had some in- fluence. The Court cannot say what proportion the wife would Oi) Amb. 509. 2 Eden, :537. 547 * 497 MURRAY V. LORD ELIBANK. have settled upon herself and what upon her children. In Macau- lay V. Philips (e), it was held, that the decree gave no interest to the husband, but it survived to the wife; and Lord Alanley says, if she died, notwithstanding his proposal, he would have been [ * 497 ] entitled. That opinion was given by Lord Alvanley * with great deliberation, and takes the distinction between a settlement approved by the Court and a mere proposal. Lord Chancellor Eldon. — There are two points upon this demur- rer; one of form, the other upon the merits (/). If the wife has this equity, for a provision for herself and her children up to the moment of the completion, it is competent to her to give it to her husband. A great variety of proceedings have occurred, in which the Master has stated, that, with reference to the point of settlement, the party had waived it; and I apprehend, it will be found that she may, between the period of the order and her death, waive the bene- fit of that order (g). The question then is, if between the date of the order and her death, she does not, by some authoritative proceed- ing, express an alteration of her mind, whether that order is to stand for the benefit of the children. The two decisions that have been mentioned are strong authorities for that. Let an enquiry be made into the circumstances of those cases; and, as to the latter, whether the assignees of the husband were heard or not. (h) Mr. Alexander, for the plaintiffs, stated the case of Martin v. Mitchell, from the Register's book, in which the motion before Lord Thurlow, in 1779, was made. In 1777, a decree was made for an ac- count, and that what should be found due to Hannah Fearns should be paid into Court, to her separate account, with the usual direction for a settlement. The sum of 3000Z. was, by the report, stated to be due, and was carried over. After her death, in 1779, the motion, referred to in Roive v. Jackson, to pay that sum to the husband, was made, and refused; and an order was made, directing the husband to go before the Master, and execute the order for a proposal. That proposal was carried into effect, by petition, at the Rolls; and, under (e) 4 Ves. 15. (/) Feme covert may waive her equity for a settlement out of her own prop- erty, even after the order, at any time before its completion. (g) See Lloyd v. Williams, 1 Madd. 466. (h) July 30tli, 1H04. 548 MURRAY V. LORD EUBANK. * 499 another order, in 1803, statiag all the proceedings, the children were paid. It appears from these cases, that the equity of the wife • * does survive to the children ; and their only mode of avail- [ * 498 ] ing themselves of this interest is by supplemental bill. The case of Macaulay v. Pldlips is not applicable. The dictum of Lord Alvauley would have been inaccurate, if there had been any chil- dren; but there were no children. It amounts to no more than that the proposal did not sever the joint-tenancy between the husband and wife. If, as your Lordship has observed, the wife can waive her right under the order for the benefit of her children and her- self, that cannot affect a case where she has not waived, and is dead- Lord Chancellor Eldon. — The question is, what is the effect of such an order, as constituting' a right in the issue to a provision, if the wife dies without any act done after the date of that order. If this case had been antecedent to the period when the manuscript case to which Mr. Madocks alluded was decided, it would have been very difficult, consistently with what the Court does with the wife's property, to say there was such a right as is now asserted, upon a proceeding that went no farther than an order to lay a proposal before the Master {i). The husband where he can, is entitled to lay hold of his wife's property, and this Court will not interfere. Previously to a bill, a trustee, who has the wife's property, real or personal, may pay the rents and profits, and may hand over the personal estate to the husband {j). Lord Alranleij, in Macaulay v. Philips, has laid down, that, after a bill filed, the trustee cannot exercise his discre- tion upon that; that the bill makes the Court the trustee, and takes away his right of dealing with the property, as he had it previously. I have heard that otherwise stated in this Court, at the bar, at least. But that case is the last; and I think contains very wholesome doc- trine upon that point. I should iiave supposed, a decree made in the cause proceeded upon the right or equity in the wife at the til- ing of the bill; for decrees are only declarations of the Court upon the rights of the parties when they begin to sue. The wife is entitled to call for a declaration, that she - then had a [ *499 ] (/) Husband, -where he can, may lay hold of wife's property; and this Court will not interfere. (.;') Previously to a bill, a trustee for a feme covert may pay her personal property, or the rents and profits of her real estate, to her husband: not after a bill tiled. 549 ^' ^00 MURRAY V. LORD ELIBANK. right to a provision for herself and her children; and yet it is clear, after such a bill filed, she might come into Court and consent to her husband's having the fund entirely under his dominion. If she does not, the Court, by the decree, orders a proposal to be made for a settlement upon the wife and issue. It has been truly observed, that this doctrine is a mere (a) creat- ure of the Court, founded altogether in its practice. The case of Macaiiley v. Philips, proves, what I should have had no doubt upon, that notwithstanding that order for a proposal, if either party died while it rested merely in proposal, that would not affect the right by survivorship as between the husband and wife. There were no children in that case, certainly. It is not unfrequent, where the Master makes his report after a decree, for him to state, that the parties had declined to lay a proposal for a settlement before hirof. That has occurred since I have sat here; but, when at the bar, I was frequently concerned in this final arrangement, that, notwith- standing such order by the original decree, upon further directions the wife came, consenting that the fund should be taken out of Court, and was permitted to do so. If, therefore, the issue have a right against the father, it is dependent altogether upon the will of the mother. There is, perhaps, some difficulty in making all the principles of the Court, upon this subject consistent with the notion of such right in the children; but -it is not for me to reconcile all these principles, if there is practice sufficient to establish a given course as to that. In Roui v. Jackson (and I can, from my own memory, confirm both accounts of that case), upon an application, where it was necessary to consider whether, the wife never having expressed any change of opinion between the period of the order for a proposal and her death, that order gave the children any right, Mr. Madocks stated, that it was not according to the practice, after that order, to permit the husband to avail himself of the death of the wife to take the fund, leaving the children unprovided. His authority, always considerable, is in that instance peculi- [ * 500] arly to be regarded, * as he referred to another case, in which Lord ThuHoiv, was satisfied that such was the rule, and acted upon it. . But it does not rest there; for in a subsequent case it is clear from the Register's books that Mr. Mansfield, after (a) Notwithstanding an order for a proposal for a settlement, under the equity of a married woman, by the death of either, while resting in proposal, the right by survivorship,. as between the husband and wife, is not affected. 550 MURRAY V. LOUD ELIDANK. * 500 the death of the wife, moved that a sum of money shouhl Ije paid to the huaband; and Lord Thurlow refused that application, upon the ground that the order for a proposal on behalf of the children was an obstacle. That was followed by what Lord Alcanleij did upon a petition; whether regularly or not will not shake the doc- trine, considering what had been done before. In that instance, Lord Alvanleij would not deliver out that small sum, little more than 300/., until satisfied that there was some provision for the children. Taking all this together, however numerous the difficulties upon it, it is too much for me to say, upon the argument of a demurrer, all that has been done in the cases referred to is to go for nothing, because it is difficult to say, ab ante, it should be done, and that I am to set up a different course of practice. I agree also with Mr. Alexander as to the dictum of Lord Alvanley in Macaulay v. Philips, which construction is necessary to make him consistent; and attention being given to the circiimstance that there were no chil- dren, there is no inconsistency in that case. The principle must be, that the wife obtained a judgment for the children, liable to be waived, if she thought proper; otherwise, to be left standing for their benefit at her death. Next, as the form: if the children have acquired a right by the' judgment in the former suit, it is subsequent to the institution of the proceeding in that suit; and unless they can apply by petition, under the liberty to apply, I do not see how they can, except by supplemental bill. The demurrer, therefore ought to be overruled. If, upon the hearing of the cause, this should turn out to be wrong, it is in- finitely better that it should go to the House of Lords upon a full hearing. Demurrer overruled. 551 502 MURRAY V. LORD ELIBANK. [ f 601 ] * MURRAY v. LORD ELIBANK. May 21st, 22nd. July 2Ut, 1806. [eEPOKTED 13 VES. l.J Right of children to a provision out of the property of their mother, under a decree directing a settlement on her and her children : notivithstanding her death before the report, no act being done by her to waive the equity. In this cause, the demurrer of the defendant Montolieu having been overruled, answers were put in, and the cause came on to be heard. Mr. Alexander and Mr. Cooke, for the plaintifts, relied upon the opinion expressed by the Lord Chancellor upon the demurrer. Mr. Richards, and Mr. W. Agar, for the defendant Montolieu. — This is a very important and new question, which the Lord Chan- cellor did not profess to decide upon the demurrer. The opinions that have been expressed shew the notion that has prevailed as to the practice, but there is no decision upon it. The order by Lord Alvanley would not have been made if the Court had been aware that the creditors were not parties, the husband and wife having assigned the fund, to secure a debt; and it was delivered out of Court upon the statement that it was very small, the creditors not being parties, and no contest. The cases of Martin v. Mitchell, and Roiue V. Jackson, were also upon petition, and no contest. It is true, this equity is the creature of this Court; it has been held, both here and by Tuord Eldon, that it has no analogy to a fine, and it does not arise if the husband gets the property, if it is [ * 502 ] * not intercepted in the way; but if the order of the Court is necessary, either upon the bill of the wife, which must now be admitted, or of the husband, the Court will make him do what is just; otherwise, their is no jurisdiction against him, and he cannot be held guilty of a contempt. He may run his life against 552 MURRAY V. LORD ELIBANK. * 503 hers. The Court f^oen uo further than refusing to assist him, un- less he will make a provision. The Court does not act upon the in- terest of the wife; for if so, they would give it to her. The Court has no dominion n[Hm the subject, but exercises a sort of arbitrary authority, there being no interest in her in point of law. The Court cannot compel him to give her an interest, but merely re- fuses to interfere in his favour, except upon certain terms. There is no doubt that, after a reference directed, as to a provision for the wife and children, she may come the next day, and, by her own act of consent, defeat that provision for her children, though without her consent the Court would not give the fund to her husband; but there is no jurisdiction to prevent her giving it to him. Mr. Jus- tice Bitller attempted it, and refused to take the consent; but Lord Thurloiv held, that he could not refuse it, and, with great reluctance gave the money to the husband. The power which the wife has in that way to defeat the reference in favour of the children, shows clearly that the reference is directed upon her account, not theirs. In the case of Alexander v. M^Culloch (I), it was never thought possible to give the property to the wife; but each came, from time to time, to get a little; and Lord Thurloiv fed the husband occa- sionally, in order to induce him to make a proposal. But she might have come to give it away to him; and, in fact, they did at last agree, as they did also in Macaulay v. Philips (ui). The protection sub- sists only as long as the wife chooses. AVhen she is gone, the equity which is attached to her, and to her only, must be gone also. What interest can the children have against their father? Are they purchasers as against him ? He is a purchaser of his wife's choses in action by the act of marriage, completed by the administration. * AVhat right have the children, as against [ * 503 ] their father, to insist upon a part of the fortune ? In Scriven v. Tapley (n), the Lord Chancellor held this equity personal to the wife, reversing a decree at the Rolls in favour of the children. Bond v. Simmons (o), also, is an authority that the wife surviving is entitled to the whole ; and the consequence is, that by her death the equity is gone, and the children cannot file a bill to bring the money into court. These authorities outweigh the loose (I) TaVs. Jun. 192;'citetL ~~~ (m) 4 Yos. 15. (n) Ami). 509; S. C, 2 Edeu, 337. (o) 3 Atk. 20. 553 * 504 MURRAY V. LORD ELIBANK. dicta upon the petition, and without contest, in favour of this bill; and it stands upon no foundation of principle. Mr. Alexander in reply. — The opinion of Lord Eldon is express- ed in favour of this bill. It is supposed that the plaintiffs must contend, that this equity would bind the wife herself, if she chose to relinquish it. But, admitting that, notwithstanding an order for a settlement, if the husband dies, the wife surviving is not bound to make a settlement, can it be said, therefore, the husband is not bound? There is no doubt, the equity is that of the wife; and she may, in any stage, come into court, and relinquish the equity both for herself and her children. [Master of the Rolls (Sir W. Grant).— Down to what time?]. To the time at which the settlement is actually made. It is an equity, in opposition to the husband's legal right, upon which it is imposed as a burthen in favour of herself, and those in whose favour she may think fit to apply; and which she may at any period abandon. There is nothing inconsistent in her right to relinquish that claim, which she has on behalf of herself and her children. But after her death the Court will suppose she died with the inten- tion to insist upon it for her children; in whose behalf it shall subsist after her death, unless expressly waived during her life. After the order made upon her application, and not waived, which by the event of her death is now become impossible, the right of the chil- dren is vested; the effect of the order being a specific lien upon the particular fund, in respect of which the husband makes [ * 504 ] the * application, notwithstanding the general terms of the order. The Master of the Rolls (Sir W. Grant). — This case arises out of the case of Lady Elibank v. MoiitoUeu; by the result of which the right of Lady Elibank to maintain a suit for a settlement against her husband and the administrator was established ; and it was determined, that the claim which the administrator had, as a cred- itor of her husband, did not stand in the way of her right. The question now, (Lady Elibank having died before anything was done under the decree, by which the Master was directed to approve a settlement upon her and the children,) is, whether the children have a right to the benefit of that decree? It is contended, on the part of the defendant Montolieu, that the right to demand a settlement is a personal equity, attaching to a 554 MURRAY V. LORD KLIDANK. * 505 married woman, and in no sonse the right of the ehildrpn; for, if it were, the mother could not reliru[uiHh it, as it is admitted she may; that, though the children may derive a consequential benefit from having the settlement made upon the mother extended to them, yet when her right is out of the question, as it is in this instance by her death, there must likewise be an end of theirs. Upon the other side it was contended, that, when a settlement was, by the decree, directed to be made upon the mother and the children, the right of the children is so far fixed, that the Court will recognise and carry it into effect, notwithstanding her death, provided no act was done by her to waive the benefit of it. It seems to be assumed in the argument, both here and before Lord Eldon, that it was competent to the mother to waive the settlement at any time before it was actually completed; that is, even after a proposal given in by the hus- band. Lord Hardwicke, however, determined the contrary ( 7? ) ; stating, that though the wife might give up her interest in themoney, if she pleased, yet nobody could consent for the children, which may be. That does not directly apply * to this [ * 505 ] case; as, I believe, no proposal was laid before the Master in this case (q). With regard to this equitable right which a married woman has in this Court to a provision out of her own fortune, before her hus- band reduces it into possession, it stands upon the peculiar doctrine of this Court. It is vain to attempt, by general reasoning, to as- certain the extent of that doctrine. We must look to the practice of the Court itself. It is sufficient to say, the habit of the Court has always been of itself, and without any application previously made by the married woman, to direct an inquiry, when money has been carried over to her account, whether any settlement has been made; for the money is carried over subject to that inquiry, and the constant habit has been to direct a settlement not upon the wife only, but upon the children also. I am not aware that she has in any case been permitted to say she claims a settlement for herself, {p) Anon., 2 Ves. 671. See, however, Lloyd r. "Williams. 1 Madd. 466, in which tlie opinion of Lord Ehlon is rocofjcniscd and approve of. (7) T1k> equitable rijilit of a married woman stands ujion tlio peculiar doc- trine of the Court. AVlicn money is carried over to lu'r account, the liabit of tlic Court is, without any, ])rc\ ions a])plicati(m l)y lier, to dir(Mt an iii(|iiiry, whetluM' any settlement lias h(>cn made: and tlie constant habit lias l)ecn to di- rect a settlement, not upon her only, but upon the children also: her option to waive a settlement not euubliug her to have it conlined to herself, excluding her children. 555 * 506 MURRAY V. LORD ELIBANK. but not for her children. She has the option not to have any set- tlement made; but if a settlement is to be made, it is always directed for the benefit of the wife and the children. When she comes to give up her right to her husband, she is examined whether she wishes for any settlement. If she does not desire any settlement, then the money is paid to her husband. If she desires a settlement, the settlement is upon her and the children. The question has been made, whether the children have any sub- stantive and independent right to claim a settlement after the death of their mother, if a settlement was not directed during her life? In the case of Hearle v. Greenbank (r). Lord Hardicicke appears to state that as a doubtful point; and that he conceived there was no case determining that the children have such right. His Lordship seems not to have recollected the case that was before him, Grosve- nor V. Lane (s), in which he took notice of such a decree, though the question before him was not upon the point. That was the case of the second husband, endeavouring to reduce his wife's fortune into possession; and the Court directed a settlement upon the [ * 500 ] child, the immediate point in the cause before Lord ^Hard- tvicke turning upon the right of the child absolutely to the whole legacy, in consequence of an appropriation of it by the second husband. In a subsequent case, Scriven v. Tapley (t), Sir Thomas Clarke, as a matter of course, taking it as the ordinary equity, directed a proposal by the representative for a settlement upon the child, the wife being dead. That part of the decree, it is trae, was reversed by Lord Norihington : but the opinion, that children have that equity in their own right, and independent of any claim through the mother, prevailed so much, that, notwithstanding that reversal, in a year and a half afterwards. Sir Thomas Sewell, in Cockel v. Phips (u), made precisely the same decree. Everyone knows how intimately Sir Thomas Sewell was acquainted with the practice of the Court. There is, therefore, a great deal of authority in opposition to that decision by Lord Norihington, in Scriven v. Tapley, all weighing (r) 3 Atk. 695. See lb. page 717. (.9) 2 Atk. 180. (/) Amb. 509; 2 Eden, 3.37. (u) 1 Dick. .391. See. however, Lloyd v. Williams, 1 Madd. 464, where it appears that the point said to have been decided by Lord Northington, in Scriven v. Tapley, did not arise. 556 . MURRAY ■«. LOUD ELIBANK. * 507 strongly in favour of the right of tho children claiming under a decree in favour of their mother; fur, if their right to come with an original demand for a settlement upon them, their mother hav- ing died without demanding any settlement, is established, h forti- ori, if she has claimed, and the Court has directed a settlement, the children must be entitled. As to that there are very few cases, but all are one way. The doctrine, as far as there is any memorial of it, is uniform; and it is upon the uniform habitual doctrine of the Court that you are least likely to find cases; and in the cases that have occurred, the Court has interposed, not upon any controversy between tho parties, but upon its own doctrine. In Martin v. Mitchell, the husband claimed the fund, and the Court would not permit him to take it, but directed the former order, for a settle- ment upon the wife, to be prosecuted. In Roire v. Jackson a simi- lar application appears to have produced a similar refusal; and both these cases were before Lord Thurloiv. No ground is laid upon which I should be induced to depart from the established doctrine. We can look nowhere but to the practice of the Court for the extent of that doctrine. Here we find it. * There is [ * 507 ] no instance in which the husband has succeeded in get- ting money out of coiirt without making a provision for the chil- dren. These plaintiffs, therefore, are clearly entitled upon their supple- mental bill. It is not necessary to determine, whether they could have got at it by any other mode. By common law, (unafFected by recent legislation,) on marriage, the husband became entitled to receive the rents of the wife's real estates during their joint lives, and he became absolutely entitled to all her chattels personal in possession and to her choses in ac- tion, as debts by obligation, contract, or otherwise, if he reduced them into j)ossession\ or if he did not, as administrator of his wife, if he survived her; and he became also entitled to her chattels, real, with full power to alien them, though if he died before his wife, xvithoid having reduced into possession her dioses in action, or vith- out hai-^ing aliened her chattels, real, thov would survive to the wife. See Gilb. Ten. 108; Co. Litt. 67 a., 300 a., 351 b., 351; 1 Eoll. Ab. 342, pi. 1; Co. Litt. ISoh.; Fleet v. Perrins, 3 L. R. Q. B. 53B, 4 L. R. Q. B. 500. [See Hill on Trustees, 407; Perry on Trusts, Sec. 626.] The husband acquired this interest in the property of his wife in consideration of the obligation which, upon marriage, he contracted, 557 * 508 MURRAY V. LORD ELIBANK. of maintaining her and his children by her; but the common law was defective, inasmuch as it possessed no means of ensuring the performance of the duty imposed upon the husband, since in many cases he might have it in his power to reduce into possession all her choses in action, and to alien all the property to which he was entitled yu?'e mariti, or upon his becoming bankrupt or insolvent it would vest in his assignees for the benefit of his creditors, and thus his wife, however great may have been her fortune, might, with her children, be left utterly destitute. Courts of equity have, from a very early period, endeavored to remedy this defi- ciency in the common law, by giving to the wife, in certain cases, a right to a provision out of her own property; this right is called her equity to a settlement. See the observations of Lord Hardicicke in Jeii'son v. Moulson, 2 Atk. 417; and of Lord Cottenham in Stur- gis V. Champneys, 5 My. & Cr. 101, 105. As to the assignment of the choses in action of a married woman, and as to what amounts to the reduction of them into possession by her husband, see note to Hornshy v. Lee, vol. 2, post. [ * 508 ] The jurisdiction to compel the ^husband, or those claim- ing under him, to make a settlement upon the wife, was first assumed in cases where it was necessary for them to apply to the Court for assistance in order to obtain possession of the prop- erty of the wife; which assistance the Court, acting upon the maxim, that he who seeks equity must do equity, withheld until an adequate settlement was made upon the wife. Bosvil v. Brander, 1 P. Wms. 459. [This equity is enforceable against the husband and all per- sons claiming under him, whether they are assignees for value or voluntary assignees in bankruptcy. It is also paramount to the right of set-off which an executor or administrator from whom a legacy or distributive share was due to the wife, has by reason of any indebtedness of the husband to the estate. If the interest out of which the settlement is sought is a life estate, it cannot be enforced against the husband if he supports the wife, or against his assignee for value. The reason of this exception is that the assignment of the life estate will be good only during the coverature: Bispham's Eq. Sec. 113.] In consequence of this origin of the jurisdiction, it was thought, that the equity of a wife to a settlement was confined to those cases in which the husband, or those claiming under him, were plaintiffs. See Bosvil v. Brander, 1 P. Wms. 460. [As to the parties against whom the wife's equity to a settlement will be enforced, see Paige V. Esks, 19 Pick. 269; Coppedge v. Threadgill, 3 Sneed, 577; Moore v. Moore, 14 B. Mon. 259: Bennet v. Dillingham, 2 Dana, 436; Udall v. Kenney, 5 Johns. Ch. 464; Phillips v. Hassell, 10 Humph. 197; Hanland v. Myers, 6 Johns. Ch. 25; Durr v. Bow- yer, 2 McCord, Ch. 368.] However, since the decision of Lady Elibank v. Monlolieu, the wife has been permitted actively to assert 558 MURRAY V. LORD ELIBANIv. * 509 her equity as a plaintiff in a suit; (Sturgis v. Champneys, 5 My. & Cr. 105; Eedes v. Eedf^, 11 Sim. 500; Hanson v. Keating. 4 Hare, 0; Oshoni V. Morgan. Hare, 431; Dnncombe v. (Jreoiacrc, 2S Beav. 472; 2 De G. i'\ & J. 500;) or if there bo already an ex- isting Buit, by petition therein (Greedy v. Lavender, \'-\ Beav. 02; Scott V. Spashett, H ]Mac. & G. 590) at any time before the hus- band has actually reduced his wife's equitable property into pos- session. And see Neivenham v. Peniberton, 1 De G. & Sm. 044, and the remarks thereon in In re Potter, 7 L. R. Eq. 487. A trustee is always justified in refusing to pay over, even at her request, the wife's fund to the husband, and thereby enabling him to reduce it into possession, and in thus insisting on affording her an opportunity of asserting her equity to a settlemeut; Re Swan, 2 H. & i\I. 34. [A trustee may pay over a wife's equitable property to the husband if he pleases, and such payment will discharge the responsibility of the trustee. But if the trustee refuses to deliver the possession to the hiisband, and the husband, in order to reach the funds in his hands, com- mences proceedings in equity, the court, on the maxim "that he who seeks equity must do equity," may order a proper settlement to be made upon the wife out of her equitable property in the hands of the trustee: Perry on Trusts, Sec. 027; Abernethy v. Aber- nethy, 8 Fla. 243; Andrews v. Jones, 10 Ala. 401; Barron r. Barron, 24 Vt. 375; Gassett v. Grout, 4 Met. 4SG; Tucker v. Andrews, 13 Me. 124; Crook v. Turpin, 10 B. Mon. 243; Napier v. Howard, 3 Kelley, 193; Glen v. Fisher, 6 Johns. Ch. 33; Wiles v. AViles, 3 Md. 1; Chase v. Palmer, 25 Me. 342; Stevenson v- Brown, 3 Green, Ch. 503; Van Duzer v. Van Duzer, 6 Paige, 368.] Where a trustee has reason to believe that the husband and wife have agreed to settle a sum of money in his hands, and especially if the wife does not distinctly express a wish that payment is to be made to her husband, he would be justified in paying the money into Court: In re Bendyshe, 3 Jur. N. S. 727. Where, moreover, a trustee has paid into Court a fund to which a married woman is absolutely entitled, he is entitled as of course to his costs between solicitor and client, unless his conduct has been simply capricious or vexatious. Re Sican, 2 H. & M. 31; sed vide contra, Penfold v. Bouch, 4 Hare, 271; in that case, however, when the demand was made upon the trustee, there had been already, what the Court considered a sufficient settlement made by the husband on the wife, so that her equity to a settlement was clearlv exhausted: 2 H. & M. 38. And see In re Roberrs Trust, W. N. 1869, p. 88. The trustee, moreover, may join in a settlement of the wife's funds, and for that purpose with the consent of the hus- band, he may *tran8fer them to the trustees of an exist- [ * 509 ] ing settlement, to be held upon the trust thereof, and such a settlement will be as valid as if directed to be made by the Court: Montejiore v. Behrens, 1 L. R. Eq. 171. 559 * 510 MURRAY V. LORD I-LIBANK. Tbe Court of Bankruptcy has it seems, jurisdiction to order a settlemeut to be made upon the wife of a bankrupt, insisting upon her equity to a settlement: Ex parte Thompson, 1 Deac. 90; Ex parte Norton, 8 De G. Mac. & G. 258; Ex p>arte Coysegame, 1 Atk. 192. Inasmuch as a married woman did not need the protection of the Court in the case of property to which she was entitled to her separate use, the Court never considered that she had any equity to a settlement out of such property. This being so, the necessity for a married woman to assert her equity to a settlement was much diminished by the Married AVomeu's Property Act, 1870, 33 & 34 Vict. c. 93 (more fully treated of in the next note), according to which the earnings of a married woman, after the passing of the Act (sect. 1), personal property coming to her iinder an intestacy, or any sum of money not exceeding 200/. under a deed or will (sub- ject to the trusts of any settlement afPecting the same) (sect. 7), and the rents and profits of freehold, copyhold, or customaryhold prop- erty descending upon any woman married after the passing of the Act (sect. 8), would belong to her to her separate use. This Act was afterwards amended by " An Act to amend the Married Women's Property Act, 1870" (37 & 38 Vict. c. 50), and both Acts have been consolidated, amended and repealed by the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), under which in effect, where a woman is married on or after the 1st Jan- uary, 1883, or where the title of property accrues to her after that date though married before she is entitled to it as her separate property as if she were a feme sole. (Sects. 1, 2, 5.) No property, therefore, of a woman affected by this Act, as it is her separate property, can give rise to a question of her equity to a settlement. Since, however, cases may arise not coming within these Acts, it is still necessary to examine the subject of a wife's equity to a set- tlement, and in doing so it is purposed to consider: — 1. Out of what property unaffected by the Married Women's Property ^cts she can claim it. 2. Rights of her children to an interest under the settlement. 3. As to the amount of the wife's property to be settled. 4. As to the mode of settlement. 5. Waiver of settlement by the wife. 6. What will defeat or bar the wife's equity to a settlement. 7. Wife when allowed mainte- [ * 510 ] Dance by Court out of her equitable property on * refusal of her husband to make a settlement. 8. As against whom the equity to a settlement is binding. 1. Out of what property unaffected by the Married Woyneii's Property Acts, the wife can claim her equity to a settlement.] — Where the property of the wife is equitable, and consequently not recoverable at law, it is clear that the husband or his assignees, will only obtain it upon the terms of making a settlement upon the wife 560 MURRAY V. LORD EUBANK. * 511 nnd hoY cLlldren, if slio require oi^o to bo mado: (Milner v. Colmer 2 P. WiDs. 0:^0); [The steps must bo taken for a Bottleruent before the liusbaxul has obtained tbo actual possession of the fund, because tho courts will not compel a husband who has obtained i)ossession to refund tlio property, in order that a Bettlement may be made: Pool V. Morris, 29 Ga. 374; Rees v. Waters, Watts, 90; Mitchell V. Sevier, 9 Humph. 14G; Carleton v. Bank, 7 Ala. 34; Wiekes v. Clarke, 8 Paige, 161.] and a legacy is not deprived of its equitable character by being charged on land, with power of entry and re- ceipt of tho rents and profits: Dnncnmbe v. Grecnacre, 28 Beav. 472, 2 Do G. F. & Jo. 509, overruling Cooke v. Williams, 11 W. K (V.-C. S.), 504. And where an equitable estate in fee descended on a married woman, tho Court, by virtue of her equity to a settlement, has set- tled the estate on her during her life, but has refused to interfere with the possible estate bv curtesy of the husband: Smith v. Mat- theics, 3 De G. F. & Jo. 139. And even where tho property though in its nature legal, becomes from collateral circumstances, the subject of a suit in equity, it ap- pears that the wife's equity to a settlement \^ill attach! This is clearly laid down in the important case of Sturgis v. Champneys, 5 My. & Cr. 97. There the provisional assignee of Sir Thomas Champneys, an insolvent debtor, whose wife, Lady Champneys, was entitled /or /icr ///e to rea/^w'ope?-/?/ of which the legal estate was outstanding in mortgagees, teas obliged to file a bill to make his title (subject to the incumbrances) effectual. Upon Lady Champneys claiming her equity to a settlement, it was contended that her life- interest in the estates could not be considered as an equitable inter- est merely on the ground that tho legal estate was outstanding, and that the Court had never made a provision for a wife out of such an interest as the husband in that case had, and that it was not es- tablished that the wife's equity extended to the rents of real estate. Lord Cottcnham, however, after an elaborate examination of the authorities, reversed the decision of Sir L. Shadwell, V. C. (4 Sim. 82), and held the wife entitled to a settlement out of the rents of her life-estate. See Bonfield v. Hassel, 32 Beav. 217; Barnes v. Robinson, 11 W. R. (V.-C. S.) 276; Fowke v. Draycott, 29 Ch. D. 996. It seems, however, that if in Sturgis v. Champneys, tho wife had been plaintiff and not the provisional assignee, she would not have been able to assert any right to a settlement. See Gleaves v. Paine, 1 De G. Jo. & Sm. 87, where Lord Wcstbury, C, said that, although the decision of * Sturgisy. Champneys (5 My. & [ * 511 ] Cr. 97), being a decision of the Lord Chancellor, must be followed, yet he was not disposed to extend it any further than the actual decision went, and that, as in that case the assignee was plaintiff, it would extend tho rule very much to recognise the doc- trine that a tvife miglit eome here CLsking a settlement of real estate 36 W^HITE ON EQUITY. 561 * 512 MURRAY V. LORD ELIBANK. belonging to the husband against the husband's assignee, which the assignee could render available without resorting to the Court of Chancery. Whether a wife may not be entitled in some cases to an equity of settlement out of a legal chose of action, as for instance a debt, as against the legal right of her husband, is perhaps doubtful. But see Ruffles v. Alston, lO L. R. Eq. 539, 544, 546. Moreover, whatever may be the right of a married woman to have a provision made for her out of the income of an estate of which she is equitable tenant in tail, it is not according to the course of the Court, or indeed in its power, to order a settlement to be made of the estafeov land to be purchased ivith money of tvhich the married woman is equitable tena^it in tail. For it is clear that the equity to a settlement attaches upon what the husband takes in right of the wife, and not upon what the wife takes in her own right, and the estate tail being in the wife, the Court has no power to order a set- tlement of it to be made, or to render such a settlement, if made, binding and effectual against the wife: Life Association of Scotland V. Siddal, 3 De G. F. &^Jo. 271, 276. Where copyhold property descended in fee upon a married woman, subject to a covenant entered into by a former owner upon his mar- riage to surrender it to certain uses, under which, had the surrender been made, the married woman would have been legal tenant in tail, it was held by the Lords Justices that she had no equity to a settle- ment out of property so circumstanced: Re Gumming, 2 De G. F. & Jo. 376. And it is clear that she has no equity to a settlement as against the assignees for value of her husband's interest in land of which she is seised for an estate of inheritance in fee. Durham\. Crackles, 8 Jur. N. S. 1174; Life Association of Scotland v. Siddal, 3 De G. F. & Jo. 271; Neivenham Y. Pemberton, 17 L. J. Ch. 991. Where, however, a sum of money, being rent of real estate (not, as it seems, equitable) to which a husband was entitled jure mariti, was paid into Court by an agent. Sir L. Shadwell, V.-C, upon the authority of Sturgisw. Champneys (d My. & Cr. 97), held that the assignee of the husband (who was insolvent) was not entitled to it, without a settlement upon the wife: Freeman v. Fairlie, 11 [ * 512] Jur. 447, and see Life * Association of Scotland v. Siddal, 3DeG. F. & Jo. 271. . A wife will also be entitled to a settlement out of her trust term in land, not only as against her husband, but also against his as- signee for valuable consideration. Thus, in Hanson v. Keating, 4 Hare, 1, where a husband and wife assigned, by way of mortgage, the equitable interest of the husband in right of his wife in a term of years, the mortgagee filed his bill against the husband and wife, and the trustee of the legal estate, for a foreclosure and assignment of the term; it was held by Sir J. Wigram, V.-C, upon the author- ity of Sturgis v. Champneys (5 My. & C. 97), although contrary ta 562 MURRAY V. LORD ELIBANK. * 513 his own opinion independent of that case, that the wife was entitled to a provision for her life, by way of settlement, out of the mort- gaffed premises. " I am clear," observed his Honor, " that I am not bound in this case, to impose upon the plaintiff the terms required by the defendant, only because he is plaintiff (for that was the argu- ment at the bar). The question is, what are the equitable rights of the parties, independently of their relative positions on the record? Sir Edward Turner^s Case, 1 Vern. 7, if it be law, answers this ques- tion. Now it is true, that some judges have thought tLo resolutions in that case questionable, but it is equally true, that they have con- sidered it as binding upon all courts until the House of Lords should alter its own resolutions: Pitt v. Hunt, 1 Vern. 18; Jeivsonx. Moiil- ^on, 2 Atk. 417; and unless I am altogether under a mistake. Sir Edward Turner^s Case, has always been, and is at this day, considered law by conveyancers, and is acted upon accordingly. And the more strong has been the dissent from the resolutions in that case, the more do the judges who express that dissent affirm the authority of the case by following it. I believe the understanding of the profes- sion, prior to the decision of Sturgis v. Champneys, to have been that Sir Edward Turnei'^s Case, was in accordance with the principles of the Court and I advert to that understanding the more, not only be- cause the Vice- Chancellor of England concurs in it, but because I know the learned editor of Mr. Roper's book on the law of Husband and Wife always lamented the decision in Sturgis v. Champneys, as having, in his opinion, unsettled the law. In some cases of mere personalty there is no doubt of the wife's equity, but, prior to Stur- gis v. Champneys, the opinion of the profession had, I believe, be- come settled, that estates in land were not subject to the same equity, upon the broad and important principle of preserving a strict anal- ogy between legal and equitable estates in land. In the case of Burdon v. Dean, 2 Ves. jun. 607, the order was made by consent; * and Lord Cottenhani notices that circumstance [ *513] in Sturgis v. Chainj^neijs. I shall not, however, decide this case without attentively reading Stui'gis v. Champneys in private." On a subsequent day, his Honor, deciding in favour of the wife, observed that he did so in deference to the judgment in Sturgis v. Champneys, he should follow it, although, if that case were out of the way, he should probably have decided otherwise. The estate of a feme covert tenant in tail in possession, subject to a term to secure a jointure, has been held to be equitable during the continuance of the term, for the purpose of entitling her to a set- tlement on a bill filed by her. See Woiiham v. Pemberton, 1 De a & Sm. 644. Although the Court might allow the wife the income of her pro- perty, it by no means follows, when the property out of which she claims a settlement is in the hands of a mortgagee, that he will be allowed by the Coiirt, as against the assignees of the husband, what he may have paid to the wife, out of the income of the property. 563 *514 MURRAY V. LOKT) ELITUNK. Thus, in Clarke v. Cook (3 De G. & Sm. 333), a husband and wife, by deed acknowledged, demised freeholds of the wife to a mortga- gee by way of trust, the trusts being to apply the rents and profits in payment of certain premiums of insurance, and of the interest on the mortgage debt, and then in reduction of the principal, until it should bo paid off. The husband took the benefit of the Insol- vent Debtors' Act. It was held by Sir J. L. Knight Bruce, Y.-C, in a suit for redemption, instituted by the assignee of the husband against the mortgagee, that the latter was chargeable with the sur- plus rents which he allowed to the insolvent's wife for her main- tenance. " I cannot help suspecting," said his Honor, "that the wife might have had all that has been paid to her if a proper ap- plication had been njade to the Court. It is a hard and peculiar case, and there must be no costs on either side." "Where, however, a person entitled, jure mariti, to tho legal inter- est in leaseholds, mortgages them, tho wife has no equity to a set- tlement thereout, as against tho mortgagee seeking foreclosure or sale {Hatcltell v. Eggleso, 1 Ir. Cb. Rep. 215), but if the proviso for redemption in such a case is on the repayment by the husband (who has become insolvent), and his wife, of the sum advanced, the power to redeem must be given to her as well as the insolvent's assignee: Hill v. Edmonds, 5 De G. & Sm. 003. Although it was once doubtful, it seems to be now fully estab- lished, that a wife is entitled to a settlement out of a life interest in equitable projoerty to which her husband is entitled in her right, as against his assignees, iipon his becoming bankrupt or insol- [ * 51 4] vent. Thus, in * Lumb v. Milnes, 5 Ves. 517, a wife hav- ing a life interest in the dividends of fund, was held en- titled to a settlement as against the assignees of her husband, who was a banla-upt. The same was held also, in Broivn v. Clark, 3 Ves. 166; Jacobs v. Amyatt, 1 Madd. 376, n. ; and Squires v. Ash- ford, 23 Beav. 132; and in Sturgis v. Champneys, 5 My. & Cr. 97, which has been already noticed. Lord Cottenham held, that the wife was entitled to a settlement out of the rents of lands devised to her for life; spe also Vaughan v. Buck, 1 Sim. N. S. 284; Koeber v. Sturgis, 22 Beav. 588. The wife is also entitled to a settlement or maintenance out of her equitable life interest when she is deserted by her husband. See Gilchrist v. Cator, 1 De Gex & Sm. 188, p. 150, and cases rAted post, p. 532. It has, however, been held that the wife is not entitled to a set- tlement out of a life interest ivhen she is living xvith and is main- tained by her husband, who is neither bankrupt nor insolvent: Vaughan v. Buck, 13 Sim. 404, sed vide Wilkinson v. Charlesivorth, Marsack v. Lyster, 10 Beav. 324. [Udall v. Kenney, 3 Cowan, 591; Phillips V. Hassell, 10 Humph. 197.] Nor is the wife, it seems, entitled to a settlement out of property in which she has an equitable life interest, as against a person to 564 MURRAY •«. LORD KLIHANK. * 515 whom hor husband has assigned it for value previous to his insol- vency or bis desertion of hor: Elliott v. Cordell, 5 Madd. 149; Stan- ton V. Hall, 2 Russ. & My. 175. So also in Tidd v. Lister, 10 Hare, 140, it was held by Sir George Turner, V.-C, after a very careful examination of the authorities, that a married woman whoso husband did not maintain her, was not entitled, as against a particular assignee of the husband, to a settlement, or maintenance out of the income of the real and per- sonal estate to which she was entitled inequity for her life, and his decision was on appeal affirmpd by Lord Cranicortli, C, who, with reference to the distinction in principle, supposed to rest between the mode of dealing with the purchaser of a wife's life interest, and the purchaser of her absolute interest, said, "that they are altogether satisfactory to my mind, I am not prepared to say; at the same time they are certainly not without weight, and considering the authorities are all ono way, I think it would be very inexpe- dient now to attempt to disturb them." See 3 Do G. Mac. & G. b57, 870; see aho Durham v. Crackles, 11 W. R. (V.-C. W.), 138; Re Duffy's Trust, 28 Beav. 386. With regard to Elliott v. Cordell, 5 Madd. 149, it is clear, siuce the decision of Stiffe v. Everett, 1 My. & Cr. 37, that the assign- ment of a life interest of a married woman in a fund not settled to her separate^use, could not, unless it came within the pro- visions of - Malins' Act (20 & 21 Vict. c. 57), in any [*515] event, bo supported beyond the period of the joint lives of the husband and wife. Harley v. Harleij, 10 Hare, 'i^2h; Stanton v. Hall (2 Russ. & My. 175), differed from Elliott v. Cordell, inas- much as in those cases the interest of the wife was determinable upon the death of her husband. In re Godfreifs Trusts, 1 I. R. Eq. 531. Even in the case of the wife's estate of inheritance, the husband's assignment by way of mortgage, has prevailed to the ex- tent of his life interest: Durham v. Crackles, Jl AY. R. (V.-C. W.) 138. And the husband's assignment for value, when maintaining his wife, of income to which ho becomes entitled in her right, will bo effectual to deprive her of her equity to a settlement as against the assignee for value, though the interest of the wife at the time of the assignment was reversionary: Life Association of Scotland v. Siddal. 3 Do G. F. & Jo. 271, 276, 277; In re Carr's Trusts, 12 L. R. Eq. 01)9. A wife is entitled to a settlement out of property to which she be- colnes entitled before, as well as out of what she becomes entitled to after marriage: Barroic v. Barrow, 18 Beav. 529. The Court, however, cannot order a settlement to be made of the reversionary jiersonal property of a married woman. ' The reason of this is, that the right to the settlement, is an obligation which the Court fastens, not upon the property, but upon the right to receive it, and if the right attaches at all, it must attach with all its inci- 505 * 516 MURRAY V. LORD ELIBANK. dents, one of which is, that the wife waiving it, must waive it by her consent in Court, which she cannot do in the case of reversionary personal property: Osborn v. Morgan, 9 Hare, 432, 434; the ques- tion, as to whether a wife is entitled to a settlement can only be de- cided when the reversionary property falls into possession: lb., and see Taylor v. Austen, 1 Drew. 459, 464; but see now Malins' Act (20 & 21 Vict. c. 57), and the Married "Women's Property Act, 1882, s. 5. Upon the same principle where the husband of a legatee as exe- cutor, is indebted as a defaulter, to the testator's estate, and has no right to receive any part of the assets, in right of his wife, his wife can claim no equity to a settlement in respect thereof. See Knight v. Knight, 18 L. R. Eq. 487; in which case Hall, V.-C, observes, " Where a testator gives a share in his property to a married woman and appoints her husband executor, the husband becomes primarily responsible for the whole estate, and the distribution of the assets must proceed on that footing. The defendant, so long as he is in- debted to the estate, can have no right to receive in right of his wife any part of the assets, and consequently no equity to a [*516] * settlement of any part of the assets can arise to the wife." Where, however, there is a fund in Court, to a share of which a married woman is entitled, in actual possession, the Court in an action by her may make a decree or declaration for a settlement in favour of her or her children, although the fund be not distributable until further consideration {In re Robinson's Settled Estate, 12 Ch. D. 188), and although her share has not been ascertained. lb. 2. Rights of her children to an interest under the settlement] — Whenever a woman insists upon her equity to a settlement, out of property to which she is absolutely entitled, and not out of a mere life interest, it will always be extended to her children, although she has no children at the time, and a reference will, as in Lady Elibank v. Montolieu, be directed to ascertain what is a proper set- tlement to be made upon her and her children: (Johnson v. Johnson, 1 J. & W. 472; Re Grant, 14 W. R. (V.-C. S.), 191): and in Con- ington v. Gillat, W. N. Dec. 2, 1876, p. 275, the children of a former marriage were provided for. [A wife cannot ask for a settlement for herself alone without including her children: Napier u Howard, 8 Kelley, 193; Andrews v. Jones, 10 Ala. 401; Howard v. MofPatt, 2 Johns. Ch. 206; but as it is a personal right of the wife, the chil- dren cannot ask for a settlement after her death: Perry on Trusts, Sec. 645; Martin v. Sherman, 2 Sand. Ch. 341; Bell v. Bell, 1 Kelley, 637.] The equity to a settlement, however, is strictly personal to the wife. If, therefore, she dies before asserting her right, her chil- dren cannot insist upon a settlement. Thus, in Scriven v. Tapley, 2 Eden, 337, where a man after the death of his wife, leaving a 566 MURRAY V. LORD ELIBANK * 517 daughter, filed a bill to obtain the payment of 300^., to which his wife was entitled, Lord Nortlmujtori, reversing the decision of Sir Thomas Clarke, M. K., held that the daughter had no equity to a settlement out of it. " The equity of compelling settlements," ob- served his Lordship, "first arose u[Kjn the husband's coming to this court for assistance. It is personal to the ivife, and, if carried fur- ther, would be attended with ill consequences to creditors. There is no case where the Court has refused assistance to the hus- band, after the death of the wife, upon the terms of his making a provision for the children." Sir William Grant, it will bo observed, when Miin-ay v. Lord Elibank came before him, cited the decision of Sir Thomas SeiveU, M. R., in Cockclw Phipps, 1 Dick. 391, in sup- port of the decision of Sir Thomas Clarke, which he seems to have preferred to that of Lord Northington; however. Sir Thomas Flamer, M. K, in his elaborate judgment in Lloyd v. Williams, 1 Madd. 404, said that, on consulting the Registrar's Book, he found the point never arose in Cockel v. P/i/pps, and that no case had touched upon the decision of Lord Northington in Scriven v. Tap- iey, and that from that time the decisions had been uniformly ac- cording to that case, and that it would indeed have been surprising, if so correct a judge as Sir Thomas Sewell should, so soon * after the decision in Scriven v. Tapley, have acted in [ * 517 J direct contradiction to it. The wife, therefore, may, at any time before the settlement is actually completed, icaive her right to it, and thus defeat the inter- ests of her children: Hodgcns v. Hodgens, 11 Bligh, N. S., 104. fThe waiver by the wife takes place on a separate examination of the wife, by which it is ascertained that her consent is given of her own free will, and is not obtained from her by fraud or force. Examinations of a like character are prescribed by statute in some States where a conveyance of the real estate of a feme covert is made.] All the cases concur in showing that children have no right to a settlement "independent of contract or decree'^: per Sir Thomas Plumer, V.-C, in Lloyd v. Willia7ns, 1 Madd. 467. "When the wife has entered into a contract, or has obtained a de- cree for a settlement, the interests of the children will not be de- feated if she die, without waiving it. Thus in Lloyd v. Williams, 1 Madd. 450, the wife of a bankrupt being entitled to a legacy, she claimed her right to a settlement out of it, and an agreement was thereupon entered into between the assignees and the executor, whereby, in consideration of a sum to be paid to the assignees, a settlement was to bo made upon the wife and her children. The bankrupt obtained his certificate in the lifetime of his wife, who died before any settlement was made in pursuance of the agreement, leaving an only daughter. Sir Thomas Plumer, V.-C, held, that the death of the mother did not disappoint the claim of the child. 567 * 518 MUr.RAY V. LORD ELIBANK. So in Lady Elihank v. Montolieu, and MurraT/ v. Lord Elihanky where by a decree a reference was made to approve of a proper set- tlement, and tbo wife died without waiving it (which, as before ob- served, she might have done), her children, by supplemental bill, successfully claimed the benefit of the decree, although no proposals for a settlement had been made, and although they had not been mentioned in the decree. See Rowe v. Jackson, Dick. G04; Groves V. Pcrkyns, 6 Sim. 584; S. C, Groves v. Clark, 1 Kee. 132. [In some cases it has been held that the equity of the children attached upon the filing of the bill or petition of the wife; and that if she died before further proceedings, the children might still be protected: Helms V. FranciscuB, 2 Bland, f.81; Hill v. Hill, 3 Strob. Eq. 94; Mumford v. Murray, 1 Paige, 621.] But if no mention is made of the children of the marriage, the omission, if it has been long acquiesced in, will not be supplied. Thus in Johnson v. Johnson, 1 J. & W. 479, where the interest of a fund in court was directed to bo paid to the separate use of a mar- ried woman for life, with liberty for those entitled on her death ta apply, Sir Thomas Plumer, M. K., said, that the Court ought to have referred it to the Master to approve of a proper settlement, instead of making that order; but that, as it was made thirty-four years ago, it could not then be altered. And where the steps taken in a suit are such as to bind the hus- band, to allow a settlement, the children after the death of the mother may insist upon one, although she may not have been bound like her husband. See Lloyd v. Mason, 5 Hare, 149, there a married woman entitled to a legacy appeared by her counsel at [ ^^^518] the * hearing of the cause,' and claimed her equity to a settlement out of the fund. The legacy was directed to be carried to the separate account of the husband and wife. The hus- band was a bankrupt, and his assignee sold his interest in the legacy. The solicitors for tho purchaser, and for the wife, agreed to refer the claim of the wife to their counsel; and the counsel determined that she was entitled to a settlement of a moiety, subject to tho costs. Before any further steps were taken, the wife died, leaving children. It was held, by Sir James Wigram, V.-C, that tho hus- band, and those claiming under liim, were, by the steps which had been taken, bound to allow a settlement of part of tho fund upon the wife and children; and that, upon the death of the wife, the children were entitled to the portion which would have been settled. But it has been decided that if a married woman dies without having obtained a decree for a settlement, her children, even al- though she may have filed her bill claiming a settlement, will have no rFght to file a supplemental bill to enforce one: Wallace v. Auldjo, 2 Drew. & Sm. 216; 1 De G. Jo. & Sm. 643. And see De la Garde v. Lempriere, 6 Beav. 344; Baker v. Bayldon, 8 Hare, 210, overruling Steinmetz v. Halthin, 1 G. & J. 64. [See note number 9. In after cases it has however been held that the rights 568 MURRAY V. LOUD ELIBANK. * 510 of Iho children to havo tbo sottlomont, attach only after decree: Perry on Trusts, Sec. 045.] Moreover, although tho husband, in the event of his ^vife'8 death, is bound by a contract or decree for a settlement, yet the wife can, at any time before it is actually made, tcaive her equity to a settle- ment: Fenner v. Taylor, 2 liuss. & My. 190, where Lord Broug- ham, C. reversed tho decision of Sir Jokn Leach, V.-C, reported 1 Sim. ]C9. See also i'"e?mer v. Taylor, 2 Rush. & My. 195; Bald- ivinx. Baldivin, 5 Do G. & Sm. ^]19; Loveit v. Lorelt, Johns. 118. But if tho wife, upon tho bankruptcy of her husband, established her equity to a settlement, as against tho assignees, she will not be allowed afterwards to waive it in favour of her husband, so as to defeat the rights of her children, though she might do bo in favour of the assignees: Barker v. Lea, G Madd. 380; Whittem v. Saxvyer, 1 Beav. 593. The right of tho children has, moreover, been defeated by the divorce of the mother after she had been declared on petition enti- tled to a settlement out of her fund in Court to the separate ac- count of herself and her husband, and she was held to bo entitled to payment of the fund as a feme sole: Heath v. Lewis, 13 W. R. 129, 4 Giff. G65. 3. As to the amount of the wife's property to he settled.'] — When the husband is solvent, the amount to be settled upon the wife and children depends generally upon * arrange- [ * 519 J ments entered into between the husband and wife. And as we shall hereafter state more fully, if when solvent he declines to agree to a settlement, the Court will, in general, provided that he has been guilty of no misconduct, allow him to receive the in- come of her property (post, p. 530). The amount however of tho wife's property which is to be settled, is most frequently discussed in Court when the husband has become either bankrupt or insolvent In such cases the old rule in general was, that, in the absence of special circumstances, one half of the wife's property should be settled upon her and her children, and the other lialf goto the husband or his assignees: Jeicson v. Moulson, 2 Atk. 4 23; Worrall v. Marlar, 1 Cox, 153; 2 Dick. 047; Brown y. Clark, 3 Ves. i GO ; Bagshaw v. Winte7\ 5 Do G. & Sm. 400 ; and see Dankley v. Duukley, 2 Do G. Mac. 6c G. 390; Re Groves' Tnist, 3 Giff. 5/5; Lea v. Church, 3 W. R. 603; Spirett v. Willows, 1 L. R. Ch. App. 520. In modern times that rule has been considerably relaxed, the di- vision of tho fund being left more in the discretion of the Court, which, taking into consideration the amount of the wife's fortune already received by tho husband, or any previous settlement vvhich may have been made, the husband's ill-conduct or insolvency, may settle a large proportion of the fund. See Green v. Otfe, 1 S. & S, 250; Na})ier v. Napier, 1 D. & W. 407; Aubrey v. Brown, 4 W. R. 569 * 520 MURRAY V. LORD ELIBANK. 425; [Perry on Trusts, Sec. 636. If there has been misconduct on the part of the husband, the whole fund has in some cases been settled on the wife, and the court is especially inclined to order this where the husband has expended a large part of his wife's fortune and the remaining sum is barely sufficient to support the wife and children, or if the husband has married a ward of the court without permission : Browning v. Headly, 2 Rob. (Va.) 340 ; Bowling u Winslow, 5 B. Mon. 31 ; Barron v. Barron, 24 Vt. 375.] and in Coster V. Coster, 9 Sim. 597, where, a husband having, without sufficient cause, separated from his wife, leaving her unprovided for, three-fourths of a fund in Court, arising from property bequeathed to the wife, was ordered by Sir L. Shadivell, V.-C, to be settled on her and her issue generally and the remaining fourth to be paid to the husband. See also Napier v. Napier, 1 D. & W. 407; Ex parte Pugh, 1 Drew. 202; Vauglian v. Biick, 1 Sim. N. S. 284; Spirett T. Willows, 1 L. R. Ch. App. 520; and see In re SuggitVs Trusts, 3 Xi. R. Ch. App. 215, where two-thirds were settled. It was at one time laid down by a very careful judge that the €ourt would never settle the whole of the property upon the wife, even where the husband was bankrupt (Beresford v. Hobson, 1 Madd. 362). That seems, however, to have been done, perhaps by con- sent, in the previous case of Jacobs v. Amyatt, 1 Madd. 370 n. ; also in the subsequent case of Brett v. Greenwell, 3 Y. & C, Ex. Ca. 230, where the husband had taken the benefit of the Insolvent Debtors' Act, Alderson, B., held the wife and her children entitled to the whole of the fund, laying weight upon the distinction that formerly existed between bankruptcy and insolvency, a distinction [*520] deemed ill founded by Sugden, * L. C, in Napier v. Napier, 1 D. & W. 407. Subsequent decisions have made it clear that under special cir- cumstances the Court will, in its discretion, settle the whole of the funds, belonging to the wife upon her, as for instance when the husband has become bankrupt, and has already received a co^nsider- able fortune from his wife (Gardner v. Marshall, 14 Sim. 575 ; Re Merryman's Trust, 10 W. R. (V.-C. K), 334; Smith v. Smith, 3 e G. Mac. & G. 328, 345. The proof of the law in foreign states in such cases being one of fact, it will not be decided by authority, but by the evidence in each case: M'Cormick v. Garnet, 5 De G. Mac. & G. 278. Where it was sought to have funds belonging to a [ * 527 ] domiciled ^Scotch feme covert paid out of Court, and a Scotch settlement was in existence, the Court required the testimony of a Scotch advocate, to show that it did not affect the fund, not being satisfied with the affidavit of a gentleman describing himself as a "solicitor practising in the Supreme Courts of Scotland, Edinburgh :" In re Todd, 19 Beav. 582. 576 MURRAY y. LORD ELIBAXK. * 528 Where the fund is under 200Z. or lOZ. a year, or is likely io 1m< reduced below that sum by costs, it may Ijb ordinarily paid to the husband without the consent of the wife being taken l)y examina- tion, but under special circumstances, as for instance, where she married the day after she came of age, the Court insisted upon her separate examination: White v. Herrick,A L. R. Ch. App. 345. But before payment it must be shown that it is not in settlement: Elworthij V. Wickstead, 1 J. & "\V. Oij; Hedges v. Clarke, 1 De Gex & S. 854-, Iloberts v. Collett, 1 Sm. & G. 188. An affidavit, how- ever, as to there being no settlement, has been dispensed with where the fund to which the married woman was entitled was very small. See Veal v. Veal, 4 L. 11. Eq. 115, where it was only ten pounds. It seems now to be the usual practice, where the husband con- sents to payment to his wife on her own separate receipt, to dis- pense with her separate examination where the sum does not ex- ceed 500/.: Re Morton's Estate,\\. R. 1874, 181. In Ireland, it seems money in Court belonging to the wife, not exceeding 100/., may be paid to her husband without her consent: In re Surridge's Trust.Sturgis v. Champneys, 5 My. & Cr. 97. [Perry on Trusts, Sec. 032; Gassett v. Grout, 4 Met. 480; Havi- land V. Mvers, Johns. Ch. 25; Crook v. Turpin, 10 B. Mon. 244; Perrycleai- v. Jacobs, 2 Hill's Ch. 504; Page v. Estes, 19 Pick. 209.] It is also binding upon the assignee of the husband for valuable consideration: Macaulay v. Philips, -iYes. 19; see also Scott \. Spa- shatt, 3 Mac. & G. 599; Marshall v. Gibbons, 4 Ir. Ch. Rep. 270, sub- ject to the somewhat anomalous exception in the case of an equitable life interest of the wife which has been already noticed, pp. 514, 532, ante. The wife's equity to a settlement is moreover paramount to the right which an executor or administrator has to set ofl'a debt due to the estate from a husband, against any legacy under the will or j-hare under the intestacy to which his wife is entitled. See HaUv. Hill, 1 Dru. & War. 109. If, for instance, the wife is entitled to have the whole fund settled upon her, then the right to set off or retainer will be completely barred; if she has only a right to have part of the fund settled, the right of retainer or sot off will be to that extent barred. See Carrx. Taylor, 10 Yes. 574; E.v parte Blagden, 2 Rose, 294; E.r parte O'Ferrall, 1 G. & J. 347; M'Mahon v. Bnrchell, 3 Hare, 97,5 Hare, 325; Reeve w Rocher, 1 De G. & Sm. 020; Lee v. Egre- niont, oDeG. & Sm. 348; M^Cormick v. Garnett, 2 Sm. ct Giff. 37: In re Cordweirs Estate, 20 L. E. Eq. 044. It is presumed that Lord Loughborough, when he ob.served in the principal case (p. 492, ante), "That if the plaintiff had any equity against her husband with re- gard to the money, that equity would clearly bar any right of re- 583 * 535 MURRAY V. LORD ELIBANK. tainer that the administrator could set up," merely meant, that the bar to the right of retainer was co-extensive with the wife's equity. It is clear that where the Court directs a settlement to be made upon the wife, " the Court will support it as a good settle- [ * 535 ] ment, for valuable consideration." See * Wheeler v. Caryl, Amb. 121; Simson v. Jones, 2 Russ & My. 365. The Court, moreover, has gone further; if after marriage, the wife being entitled to such a portion which the husband cannot touch without the aid of the Court, and the trustees will not pay it without the husband making a settlement; if the husband does ao-ree to it, and do that which the Court would decree, it is a good settlement as against his creditors. Per Lord Hardwicke, C, in Wheeler v. Caryl, Amb. 191, 122; Moor v. Rycault, Prec. Ch. 22. So a legacy due to a married woman may, with the consent of her husband, be paid to the trustees of a settlement already in exist- ence, upon trusts under which the life interest of the husband is determinable on alienation or incumbrance thereof. See Montefiore V. Behrens, 1 L. R. Eq. 171. See also Middleconie v. Marloiv, 2 Atk. 519; In re Wray's Trusts, 16 Jur. 1126. Even if trustees in possession of the property of a married woman should, on the mere request of her husband, transfer it to new trus- tees upon trust for her separate use, such trust will be good as against his creditors: Ryland v. Smith, 1 My. & Cr. 53. But if the husband has once reduced into possession the equit- able choses in action of his wife, any subsequent settlement of them would not be valid as against his creditors. See Ryland v. Smith, 1 My. & Cr. 53; see also Wall v. Tomlinson, 16 Ves. 413, and Glaister v. Hewer, 8 Ves. 207. {^Doctrine of Wife's Equity to a Settlement Restated.— The wife's equity to a settlement is believed to exist in all of the United States with the exception of North Carolina and New Hampshire, and it has also been recognized in the Federal courts: Gould v. Gould, 16 Ala. 132; Gardner v. Hooper, 3 Gray, 398; Wiles v. Wiles, 3 Md. 1; Chase v. Palmer, 25 Me. 342; Coppedge v. Threadgill, 3 Sne^d, 577; Lay v. Brown, 13 B. Mon. 295; Barron v. Barron, 24 Vt. 375; Durr V. Bowyer, 2 McCord's Ch. 368; Wilks v. Fitzpatrick, 1 Humph. 54. In North Carolina see Lassiteru Dawson, 2 Dev. Eq. 383. In New Hampshire, Parsons v. Parsons, 9 N. H. 309. In Pennsylvania it is enforced by preventing a recovery in a legal action, unless upon the terms of making a suitable provision for the wife: Rees v. Waters, 9 Watts, 94; Perry on Trusts, Sec. 627, defines a wife's equity to a settlement to be an equitable right which a married woman has to a provision out of her own fortune, before her husband reduces it to possession. The wife in order to procure a settlement must take steps to obtain it before the husband has obtained the actual possession, because the courts will not compel the husband Avho has possession of the 584 MURRAY V. LORD KLlIiANK. * 535 property, to refund it, in order that Bcttlement raay ho made, unless he should have obtained the posHession (jf the property l)y fraud. The wife's equity is paramount to all rii^hts of setoff against thi' husband, even if he makes an assignment fur a valuable considera- tion, the wife's equity will ])revail over it. It will be enforced not only against the husband, but all persons claiming under or through him, and her right extends to all her property, whether legal or equitable, and to all her interest, whether in fee or for life, or to a trust for a term, or to her interest as a mortgage, or an equity of redemption, and to all her interests in chattels real or to her*contingent interest. She is also entitled .to a settlement in estates that come to her after maniage as well as before. The equity, while called that of the wife, is effectuated by a set- tlement on her children also, and she cannot separate her interest from theirs or claim a settlement on herself to their exclusion. The right of the children is merely incidental to hers and does not con- stitute an independent equity, and if she dies without having a de- cree of settlement, the husband will receive the property and the children will have no equity to enforce a settlement. The amount that will be settled upon the wife is subject to the sound discretion of the court, which acts upon all the circumstances. It is also a well settled doctrine that equity will lay its hands on the property of the wife, which is within its power, for the pur- pose of providing a maintenance for her when she is abandoned by her husband, or prevented from living with him by his ill-treatment. In some cases in the United States, maintenance in the nature of alimony has been decreed by courts of equity. In the future there will perhaps be little occasion to consider set- tlement in the United States, since the statutes settle nearly all a married woman's property upon herself, without the intervention of a trustee. It may happen that questions may arise in relation to marriages previous to the passage of the acts in the several states; or the property may come to the wife in some manner not embraced in the statutes, so that the husband's common-law rights may still extend to it: Richen v. White, 43 Barb. 02; Foster v. Penn. Ins. Co., 34 Pa. St. 134. End of Vol. I., Paet Fiest. 5S5 Phila. : Blackstone Pub. Co. (586) I LAW LIBRARY jUNIVERSITY OF CALIFORNU LOS ANGELES UC soiJTHCOf.pcr AA 000 818 680