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V.C. S.]

BOLDING V. LANE.

[V.C. S.

tator also appointed the said Thomas Lane and | to the said Thomas Lane and Sydney Alleyne, they, the the deft. Farindon Lane, his executors. Valter Sprott died on the 3rd May 1844.

son,

By an indenture dated the 23rd Feb. 1846, Sydney eyne was appointed a trustee in the place of Walter ott, and the mortgage-debt and securities comprised he indenture were assigned by Thomas Lane to a stee upon trust forthwith to assign the same to the Thomas Lane and Sydney Alleyne, their executors, inistrators and assigns; and by another indenture ven date indorsed on the above, the said mortgaget, and also the residue of the said term of 1000 rs, were assigned accordingly, and became vested in said Thomas Lane and Sydney Alleyne, their cutors, administrators and assigns (subject as to latter to the equity of redemption) upon certain

sts.

By an indenture dated the 29th Sept. 1847 part of the
editaments comprised in the indenture of mortgage
re sold and conveyed to one John Jones in fee for
= sum of 250l., freed and discharged from all clains
respect of the debt of 12817. 12s. 3d. and interest.
By an indenture dated the 1st May 1848, and made
ween the said Thomas Lane of the first part, the
ft. Maria Lane of the second part, the defts. John
worthy Cutcliffe and Elizabeth his wife of the third
rt, the Rev. Anthony Boulton and Harriet his
fe of the fourth part, and the said John Elworthy
utclife of the fifth part, and which recited the deed
mortgage and the deed of Sept. 1847, Thomes Lane
anted and released to Anthony Boulton and the deft.
ohn Elworthy Cutcliffe, their heirs and assigns, all
e premises comprised in the indenture of mortgage
May 1831 (and not comprised in the indenture of
he 29th Sept. 1847) upon trust to let the same as
hey should think fit, and subject thereto to sell the
aid hereditaments and stand possessed of the proceeds
pon trust to pay interest at 5 per cent. on a sum of
27. 88. 11d., due to the deft. Maria Lane, and on
he sum of 7187. 7s. 9d., due to the trustees of the
ettlement, dated the 4th Sept. 1811, of the deft. Eli
abeth Cutcliffe, on her first marriage with William
Dick deceased; and, after payment of such interest,
o pay the capital so respectively due to the said parties
intil the whole should be fully paid in proportion to
heir respective debts; and upon further trust to pay
the said Anthony Boulton the sum of 4617. (being a
certain sum of 3001. and interest therein mentioned,
and interest), and to pay out of the surplus (if any) to
the defts. Maria Lane and Anthony Boulton and their
respective assigns, the sums of 22007, and 15007. ad-
vanced by them to the said Thomas Lane for the pur-
poses of the estate of the said Joseph Lane. The in-
enture also contained a release to the said Thomas
Lane, his executors and administrators, in respect of

the said five sums and interest.

said Thomas Lane and Sydney Alleyne, thereby assigned and transferred to the said J. P. Bolding, li ́s executors, administrators and assigns, "all that principal sum of 4047. 7s. secured by the said indenture of the 9th May 1851, and all interest then due or to become due thereon, and the full benefit of the said recited securities and bond, and of all other securities for the same moneys, and every part thereof," with power to sue in their names, &c. By the same deed, the hereditaments contained in the said indenture of mortgage (except such as had been sold) were assigned to the said J. P. Bolding, his executors, administrators and assigns, for the residue of the terin of 1000 years, subject to the equity of redemption subsisting therein.

Thomas Lane died on the 26th Dec. 1859, leaving the deft. Farindon Lane his heir-at-law. There was no personal representative. The charges on the mortgage property under the deed of the 1st May 1848 greatly exceeded, it was alleged, the value of the hereditaments.

Anthony Boulton died in May 1854, having by will appointed executors, of whom the deft. Samuel John Maclurean alone proved the will.

The bill was filed on the 24th July 1861 by John Parker Bolding against Farindon Lane, the heir of the devisee and also the executor of the mortgagor, Jelm Elworthy Cutcliffe and Elizabeth his wife, the former a trustee, and both of them beneficiaries under the deed of the 1st May 1848, Maria Lane, another of the said beneficiaries, Samuel John Maclurcan, the representative of the other trustee, and also a beneficiary under the deed, and by amendment against Auna Dick and James Edward Jackson Riccard, persons claiming to be interested under the marriage-settlement of Elizabeth Cutcliffe with her first husband, praying for an account, and "that the defts. or some or one them " might pay to the plt. the principal and interest due to him, and in default for foreclosure.

The defts. John Elworthy Cutcliffe and Elizabeth his wife, by their answer, submitted that no more than six years' arrears of interest could be recovered by the plt. against the estate.

The defts. also submitted that, under certain circumstances (consisting mainly of a correspondence, which was set out in the pleadings), a sale of the property instead of a foreclosure ought to be directed.

The only question now to be decided was, whether the plt. was entitled to the whole amount or only to six years' arrears of interest.

The following are the sections relating to the question:-3 & 4 Will. 4, c 27, s. 40: "No action, suit, or other preceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any By an indenture dated the 8th Sept. 1852, in con- land or rent, at law or in equity, or any legacy, but sideration of the sum of 6271. 5. 3d. paid to the said within twenty years next after a present right to reThomas Lane by the Oxford, Worcester and Wolver-ceive the same shall have accrued to some person hampton Railway Company in part satisfaction of the mortgage-debt, another part of the hereditaments comprised in the deed of mortgage were sold and conveyed to the railway company, released and discharged of the said mortgage-debt of 10317. 12s. 3d., and all

interest due thereon.

capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent; and in such case no such action, or suit, or proceeding shall be brought but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given."

By an indenture dated the 11th Nov. 1856, and made between the said Thomas Lane of the first part, the said Thomas Lane and Sydney Alleyne of the second part, and the plt. John Parker Bolding of the third part, after reciting the deed of mortgage, and that the principal of the said mortgage-debt had Ib. sect. 42: "No arrears of rent, or of interest in been reduced to 4077. 78.," and that there was also respect of any sum of money charged upon or payable due on such security the sum of 3021. 15s. 10d. for out of any land or rent, or in respect of any legacy, or arrears of interest, as the said Thomas Lane did any damages in respect of such arrears of rent or thereby admit," in consideration of the sum of interest, shall be recovered by any distress, action, or 5551. 148. 11d. paid by the said J. P. Bolding suit but within six years next after the same re

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spectively shall have become due, or next after an acknowledginent of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent. Provided, nevertheless, that where any prior mortgagee or other incumbrancer shall have been in possession of any land, or in the receipt of the profits thereof within one year next before an action or suit shall be brought by any person entitled to a subsequent mortgage or other incumbrance on the same land, the person entitled to such subsequent mortgage or incumbrance may recover, in such action or suit, the arrears of interest which shall have become due during the whole time that such prior mortgagee or incumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years."

[V.C. &

W. W. Karslake, in reply, argued that the case not taken out of the statute, but was expressly will the 42nd section, because there had been no ack ledgment by the second mortgagee. By the form oft decree the second mortgagee is the person by what debt and interest are primarily payable. He ferred to Hopkinson v. Rolt, and the record was duced in court, but was found not to assist the de cussion.

The VICE-CHANCELLOR observed that the doubt was as to the meaning of the word "parate " and referred to Greenfell v. Girdlestone, 2 Y. & C. C. C. 662.

Judgment was reserved.

April 30.-The VICE-CHANCELLOR.—The quat in this case is, whether the plt. is entitled t account of interest upon his mortgage money for than six years prior to the filing of his bill. It argued for the defts. that by the mere force of th

on the New Statu

Bacon, Q.C. and W. W. Karslake, for the defts. J. S. Cutcliffe and Elizabeth his wife, contended that not more than six years' arrears were recoverable. A fore-word "charge" in the 42nd section of the state closure suit is a suit to recover money within the meaning of the former part of the 42nd section (Dearman v. Wyche, 9 Sim. 570); and a mortgage is a charge within the meaning of the same clause: (Du Vigier v. Lee, Hare, 326.) A mortgagee cannot recover more than six years' arrears against the mortgagor (Eley v. Norwood, 5 De G. & Sm. 240); even when there is a covenant to pay, provided that no trust for payment has been created: (Shaw v. Johnson, 1 Drew. & Sm. 412.) Land charged with an annuity is liable for six years' arrears only, under the 42nd section, even although the grantor may be liable on covenant for twenty years' arrears, under sects. 3 and 5 of 3 & 4 Will. 4, c. 42: (Hunter v. Nockolds, Hall & Tw. 644; s.c. 1 Mac. & G. 640.) The following cases, also, were cited:-Hodges v. The Croydon Canal Company, 8 Beav. 86; Henry v. Smith, 2 Dr. & W. 390; Lewis v. Duncombe, 29 Beav. 175; Round v. Bell, 31 L. J. 127, Ch.; Harrison v. Duignan, 2 Dr. & W. 295; Hughes v. Kelly, 3 Dr. & W. 482.

It is therefore

3 & 4 Will. 4, c. 27, mortgages are included 2 support of this view, the cases of Dearman v. W and Du Vigier v. Lee, were quoted. During is argument I endeavoured to point out the fallacy of notion that a charge properly so called and a mortg are synonymous. In Lord St. Leonards' most rece work ("Practical Treatise relating to Property," 2nd edit. 1862), that gr lawyer has discussed these two cases, and has much shaken their authority. But he has also by elaborate examination of the statute, made it very (p. 139, sect. 51) that although the word "cha does not by its own force include mortgages (85%) argued in this case), yet that, as the 40th da expressly mentions mortgages, they must be inca in the 42ud, from the necessity of constr the two clauses by reference to each other, as interpreting each other. It was well obser by Mr. Langworthy during the argument th express mention of mortgages in the prese the latter portion of the 42nd clause Langworthy, for the defts. Maria Lane, S. J. Mac-it necessary to construe the whole clause so lurcan, and Anna Dick, supported the same contention. include them in the former part. He agreed that generally a charge could not be held the peremptory language of the Act of Parliamen necessarily to include a mortgage; and, but for the ascertained upon a critical examination of its clas proviso in sect. 42, it might be argued that mort- so as to produce a harmonious construction, and gages were not within the section. In order, how-treating the word "charge" as necessarily inca ever, to give sense to the proviso, it must be taken mortgages, nor on the discredited authority of the that the previous part of the clause includes mortgages. cases referred to, that it is necessary to hold that He referred to Hodges v. The Croydon Canal Company, gages are included in the first part of the 42nd clause Dearman v. Wyche, Elvy v. Norwood, ubi supra; and of the Act. to Sinclair v. Jackson, 17 Beav. 405. He further con- deed of the 11th Nov. 1856, there is an acknowleg It was contended for the plt. that by s tended that the mortgagee, having parted with his ment of the arrears due at that time, which e whole interest in the land (except a bare equity of re-him to an account of the whole arrears from the da demption) to the defts, could not, by his acknowledg- of his mortgage. This seems to be sufficiently est ment, renew the debt against the land, which was no blished. longer his; although he might re-establish the liability not a sufficient acknowledgment by the person by w An attempt was made to show that there against himself personally. The words, "by whom the interest was payable. This argument was gro the same shall be payable," must be construed with on the proposition that the second mortgagee, an reference to the ownership of the land. On this point the mortgagor, was the person by whom the interes Hopkinson v. Rolt, 5 L. T. Rep. N. S. 90; 7 Jur. N. S. was payable under the usual form of the decree, ss t decree would direct payment by the second mortgag to the first. It is hardly necessary to say that thees no solid ground for such an argument. The ter the contract, and not the decree, are what must the construction of the Act; and by the contract mortgagor is the person by whom the interst is p marily payable, and by law compellable to par There is, therefore, a sufficient acknowledgment entitle the plt. to an account of the whole arrears interest.

1209, was referred to.

Jackson appeared for another deft. Malins, Q.C. and Robinson for the plt.-They did not dispute that a mortgage was a charge on land within the meaning of the 42nd section, but relied upon the acknowledgment of arrears made in 1850. The only question was, whether the acknowledgment was sufficient to take the case out of the statute, having been made by the mortgagor, and not by the second mortgagee, the person by whom the debt and interest were payable in the first instance, according to the form of the decree. They contended that, upon the true construction of the statute, the mortgagor was the person by whom the debt and interest was "payable."

Solicitors for the plt., B. W. Simpson; for the des
Mr. and Mrs. Cutcliffe, Whitakers and Woolbert,
for Riccard and Son, South Molton; for the de
Maria Lane, Maclurean, and Anna Dick, Wan

Moon.

V.C. W.]

JERDEIN v. BRIGHT-GYETT e. WILLIAMS.

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This was a motion to take a bill off the file of the ourt, on the ground that the plt. had not authorised e solicitor to file it.

The facts of the case are reported in 4 L. T. Rep. . S. 12, where demurrers to the bill were allowed, for ant of a proper deduction of title on the face of the Ell, and for multifariousness.

Hetherington, in support of the motion, read the It's affidavit, which stated (inter alia) that the first timation he had of the suit was the reading of a eport of the case in the newspapers, after the alowance of the demurrers. He cided Wade v. Stanley, J. & W. 674; Fergus Navigation and Embankent Company v. Kingdon, 4 L. T. Rep. N. S. 262. Welford, contra, read evidence to show that the lt. was fully aware of the fact of the commencement of the suit and of its progress.

Amphlett, Q.C., Southgate, G. Lake Russell and Pemberton for the several defts.

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[V.C. W.

of my estate and effects, whatever and wheresoever, and whether in possession, reversion, remainder, or expectancy, I give and bequeath, &c.," to certain persons in moieties:

Held, that the testator's real estate passed by the residuary clause.

The testator also gave legacies to certain persons, having previously bequeathed his whole personal estate to the trustees upon trust (inter alia) to convert, &c., and pay the legacies:

Held, that the legacies were charged on the real estate of the testator, with certain priorities.

This cause caine on for further consideration on the chief clerk's certificate. Three questions arose upon the construction of the will of the testator in the pleadings mentioned. At the date and execution of his will the testator possessed very large personal estate only. But after the date of his will he had purchased several freehold properties of considerable value, and the principal question was whether, as it was contended, the phraseology of the will could only apply to personal estate, the after-acquired real estate passed by the will.

Hugh Morgan Price duly made and executed his last will and testament in writing bearing date the 5th Oct. 1853, and thereby directed that all his just debts and funeral and testamentary expenses should be fully paid and satisfied by his executors thereinafter named out of his personal estate as soon as conveniently might be after his decease, and he gave and bequeathed unto the defts. Thomas Morgan Williams (therein called Thomas Williams), Dantsey Sheen, and Elizabeth The VICE-CHANCELLOR said that, if this were Gyett, and the above-named Matilda Bedward, their the ordinary case of a bill filed without authority, he executors, administrators and assigns, all his moneys, should follow the course taken in Wade v. Stanley, securities for money, debts, and other personal estate where Lord Eldon, in answer to the deft.'s claim to and effects whatsoever and wheresoever, upon trust have his costs paid by the plt., said, "I am afraid you that they should (after satisfying his debts and funeral must have them." The peculiar circumstance of this expenses as afore aid) lay out and invest with all concase did not affect this right of the defts. They must venient speed the sum of 2000l., part of his said have their costs of the suit as against the plt., and the estate, in the purchase of some eligible freehold estate plt. would have these costs over against the solicitor.in England or Wales, at their, his, or her discretion, and But, as in the case already cited Lord Eldon doubted whether to make the solicitor pay the costs of bringing the deft. before the court upon the motion, so here the plt. ought not to have brought the defts. before the court, and therefore the costs of their appearance would not be thrown upon the solicitor. The plt. must pay these costs, and he could not be allowed to have them He should order the bill to be taken off the file, and the plt. must pay the defts.' costs of the demurrers, and of the suit generally, and he would have these costs over against the solicitor. The plt.'s costs of the present motion would not be thrown on the olicitor, because of the unsatisfactory character of the p.'s affidavit. The conclusion of the court upon the evidence was that authority to file the bill had been obtained from the plt., but had been obtained improperly. It was an improper and indecent act of the solicitor to persuade the plt. to take an assignment of a doubtful debt, for the purpose of suing in respect of it, the plt. having been insolvent, and only entering into the matter on the inducement of the solicitor. Upon this ground of the improper way in which the authority had been obtained, the bill would be taken off the file.

over.

Solicitors, Hawkes, and J. R. Barrett.

April 26 and 30.
GYETT V. WILLIAMS.

Will-Construction-Residuary clause passing real

should pay and apply the rents and profits of such estate to his the said testator's brother, John Price (hereinafter called John Price the elder), for and during the term of his natural life, and from and after his decease he gave and devised the said estate to John Price (the eldest son of the said John Price the elder, and hereinafter called John Price the younger), his heirs and assigns; but in case the said John Price the younger should depart this life before his said father, or die before attaining the age of twenty-one years, then the said testator gavo and devised the said estate unto and equally between his the said John Price the younger's brothers, the deft. William Price and Hugh Price, their respective heirs and assigns, as tenants in common; and upon trust that his, the said testator's, said trustees or trustee should, with all convenient speed, lay out and invest the residue of the said moneys, securities for money, debts and other personal estate in their, his, or her names or name, in the Parliamentary stocks or public funds of Great Britain, or at interest on freehold or leasehold securities in England or Wales, and should from time to time alter, vary and transpose the said trust-moneys so to be laid out and invested as aforesaid, for or into other stocks, funds and securities of the like nature, at their, his, or her discretion; and he thereby declared that the said trustees or trustee for the time being should stand and be possessed of and interested in the said trust-moneys, and the stocks,

funds and securities in which the same should be in

estate-Charge-Priorities. A testator at the time of the date of his will pos- vested, and the interest, dividends and annual produce sessed only personal estate, but before his death had thereof, upon and for the trusts, intents and purposes acquired considerable real estate. thereinafter expressed and declared of and concerning The will contained a residuary clause as follows: "And the same, that is to say, upon trust as to and conas to and concerning all the residue and remainder | cerning the sum of 15004, part of his said estate, to

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pay the dividends, interest, or annual produce of the
same, to his (the said testator's) father John Price
(hereinafter called John Price the father), for and
during his natural life; and after his decease leaving
his then wife Elizabeth him surviving, then, as to
500%, part thereof, to pay the dividends, interest, or
annual produce of the same, to the said Elizabeth
Price, for and during the term of her natural life;
and as to 1000l. residue thereof, to pay and divide
the same in equal proportions between all the children
of the said John Price, the father, and Elizabeth Price;
and if only one child, then the whole to such only child.
But in case the said John Price, the father, should
survive the said Elizabeth Price, he directed and
declared that at the death of the said John Price, the
father, the whole sum of 1500l. should be divided in
equal proportions between the last-named children, or,
if one child only, should go and belong to suck only
child. And as to and concerning the sum of 1000l,
other part of his said estate, upon trust to pay and
apply the dividends, interest, or annual produce of the
same to or for the benefit of the deft. William Price,
for and during the term of his natural life; and from
and after his decease to pay and transfer the said sum
to such person or persons, and in such proportions as
the deft. William Price might by his last will and
testament, or by deed duly executed, direct or appoint
to receive the same. But if the deft. William Price
should depart this life without making any appoint-
ment or disposition thereof, then upon trust to pay
and divide the same sum in equal proportions between
all the children of the deft. Williain Price, or if only
one child, then the whole to such only child. And if
there should be no child of the deft. William Price,
then upon trust to pay and divide the said sum in equal
proportions between all the brothers of the deft.
William Price who should survive him, or if
only one brother should survive him, then the
whole to such only brother And as
to and
concerning the sum of 3000l., further part of his said
estate, upon trust to pay and apply the dividends,
interest, or annual produce of the same to and for the
education and bringing up of the children of the said
John Price the elder, except his said sons John Price
the younger, and the deft. William Price, whom he had
thereinbefore provided for. And when and so soon as
the said children should have attained their respective
ages of twenty-one years he gave and bequeathed the
said principal sum of 3000l. to be divided between them
in equal proportions, the same to be a vested interest
in each child on his or her respectively attaining the
said age of twenty-one years. And as to and concern-
ing the sum of 3000l. further part of his estate,
upon trust to pay the dividends, interest, or annual
produce of the same to the deft. Elizabeth Gyett for
her sole and separate use during her natural life, to be
free from control, debts, or engagements of her then or
any future husband, and her receipt to be a sufficient
discharge to his executors for the same. And from and
after her decease upon trust to pay and divide the said
sum in equal proportions between her two daughters
Elizabeth Gyett and the plt. Annie Gyett, but if only
one of such daughters should survive his said sister,
then the whole of the said sum to such survivor. And
if neither of the said daughters should survive his said
sister, then upon trust to pay and transfer the said
sum to the plt. William Gyett, son of his said sister.
And as to and concerning the sum of 4000l., further
part of his said estate, upon trust to pay and apply the
dividends, interest, or annual produce of the same
at the sole discretion of the plt. Elizabeth Gyett
to and for the maintenance, education, clothing and
bringing up of her son, the plt. William Gyett; and
on the plt. William Gyett attaining his full age of
twenty-one years, he gave and bequeathed the sum of
4000l. to him absolut ly. But should the said William

[V.C. W.

depart this life before attaining the age of twentyyears, he directed and declared that the dividends, iterest, and annual produce of the said principal on should belong and be paid to the deft. Elizabeth G for and during the term of her natural life, for her sla and separate use, free from the debts, control, or gagements of any husband, and her receipt alone tas a sufficient discharge for the same. And from after her decease he gave and bequeathed one moiety equal half part of the said principal sum unto equally between all the children of the deft. Elizb Gyett, to be and become vested interests on each ch attaining his or her age of twenty-one years. Antr gave and bequeathed the remaining moiety or equ half part of the said principal sum unto and equ between all the children of the said John Price the elder, to be a vested interest on each child attaining t or her age of twenty-one years. He directed and decid that a sufficient sum, further part of his said estat should be invested by his said trustees to prod clear annuity of 121. sterling, which they should pr to his aunt, Mrs. Eleanor Phillips, by equal quarter? payments, for and during the term of her natura to be for her sole and separate use, independent of t debts, control, or engagements of any husband, her receipt alone to be a sufficient discharge to his executors for the same. And from and after the deceased the said Eleanor Phillips he gave and bequeathed thes annuity of 12. sterling to her husband, Edd Phillips, for and during the term of his natural 24 And from and after his decease he gave and bequeathe one-third portion of the said principal sum unte d equally between all the children of the said Elean Phillips who should be living at the time of her cease. And the remaining two-thirds of the sal principal sum he gave and bequeathed unto and equ between all his brothers of the half-blood (be children of his said father's second marriage) wit should be living at the time of the decease of the sad Eleanor Phillips. And the testator gave and queathed unto his cousin Elizabeth, the wife of Jan Price of, the sum of 100. And he nominated and appointed the defts. Thomas Morgan Wills Dantsey Sheen, and Elizabeth Gyett, and the sall Matilda Bedward, executors of his said will, and gave and bequeathed unto each of them the sun 150l. as an acknowledgment of the trouble they m have in the execution of the trusts of his said And he directed the same should be paid to them withstanding they might decline to prove his said or to act in the execution of the trusts thereof. An as to and concerning all the residue and remainder of his estate and effects whatsoever and wheresoever, aud whether in possession, reversion, remainder, or expect ancy, he gave and bequeathed one moiety or equal hi part thereof unto and equally between all the childr of John Price the elder, to be a vested interest on ex child's attaining the age of twenty-one years. An gave and bequeathed the remaining moiety, or equal part thereof, unto and equally between all the child of the deft. Elizabeth Gyett to be a vested interest each of such children attaining the age of twentyyears.

The testator died on the 20th Sept. 1859. The questions arising upon the will are succisely stated in the V. C.'s judgment.

Rolt, Q. C. and L. Field for the plts. the trustees of the will.

W. M. James, Q.C. and Rendall for the heirlaw.

Willcock, Q.C. and Whateley, Jessell and Donet Giffard, Q. C. and Blackmore, for legatees and part taking interests under the will.

The principal cases cited were: Tyler v. Ty 2 Atk. 76; Woollam v. Kenworthy, 9 Ves, 18 Foxall v. Thomas, 6 Bing. N. C. 171; Marti

V.C. W.]

PATTEN v. REID.

Short Minute of Order :-Declare real estate passed by residuary gift; that real estate is charged with the three legacies of 150l. and the one of 100%; that the 2000l. directed to be laid out by executors in purchase of land, for benefit of persons namned in will, is to be invested in priority to the other sums given out of the personal estate. Refer to chief clerk to apportion the other sums payable out of the personal estate, except the sums of 100l. and the three of 150l. each; which by marshalling are to be thrown on real estate. Costs to be apportioned between real and personal estate. Sale or mortgage for the small legacies (1007. and three of 150%. each) and for the portion that real estate is to bear of costs. All parties who would have been necessary parties under the old practice to have their costs; executors to have only one set of costs; the severing executor, Mr. Sheen, not being allowed his since the time of severance. Continue receiver. Liberty to apply. Solicitors, Westall, Meredith and Lucas.

Common Law Courts.

Reported by JOHN THOMPSON, T. W. SAUNDERS, and C. J. B.
COURT OF QUEEN'S BENCH.

HERTSLET, E:qrs., Barristers-at-Law.

[Q. B. Iolderness, 20 Beav. 147; Greville v. Brown, 7 H. | enumeration in order of time only, it being not posf L. Cas. 677; Thwaites v. Forman, 1 Coll. 209;sible to give all the legacies at the same moment, but ones v. Austin, 19 Beav. 591-3; Haynes v. Haynes, here the words indicate the order of payment. The De G. M. & G. 590; Dormer v. Warren, 2 Ves. authorities are conclusive in favour of priority in such en. 17; Wheeler v. Howell, 3 Kay & J. 198. a case as this, and even without authority the words April 30.-The VICE-CHANCELLOR now said :— used could lead to other conclusion. No doubt it lies n this question of construction and effect of the will on a legatee claiming priority to prove his claim, and the testator three questions were raised and argued: he (the V. C.) thought that he had done so in the -1. Whether the real estate of the testator passed present case. nder the residuary gift. 2. If so, whether the real state was charged with the several sums given upon e trusts mentioned in the will. 3. If it was not so arged, whether there is any priority as to the 2000l. irected to be laid out in the purchase of land. s to the first point he (the V.C.) was somewhat rprised there could be any reasonable doubt. It the largest possible gift the testator could have ade. The cases cited on this point are divisible into vo classes-first, where the testator bequeaths "all is furniture, plate," &c., enumerating certain kinds of ersonal estate and other estate, the maxim noscitur socis applies, and the word "estate" is restrained personal estate; secondly, where the testator gives his estate" to persons, their executors and administraors, and uses, in reference to the gift, words only pplicable to personal estate. Neither of these classes pplies to the present case, which is a simple gift of be residue of the testator's estate, and is a much tronger case than Doe v. Langland, 14 East, 370, where the words were 66 property, goods and chattels," nd there real estate was held to pass. The second uestion is, are all the legacies charged according to he principle of Greville v. Brown (ubi supra). If it were not for the small legacies at the end of the will here could scarcely be a doubt on this point. Throwing hem out of consideration for the moment, the testator gives his whole personal estate to his trustees upon certain special and definite trusts; as to 1000l., part of his said estate, upon certain trusts; as to 3000, urther part of his said estate, upon certain other rusts, and so on throughout until the gift of 100%. to Elizabeth Price, which is not expressed in the same way. The prior moneys are therefore clearly to be paid out of the personal estate provided for the purpose. Then comes the gift of the 100l. to E. Price and 150%. to each of the executors, then the receipt clause (not set out in the bill), and then the gift of the residue. Greville v. Brown, and the class of cases which that follows and confirms, does not apply where the testator gives personal estate upon certain special trusts. The cases referred to by Mr. Jessell are more applicable where a sum is given out of the proceeds of the sale of land; and then, if the land is sold in the testator's lifetime, or otherwise the proceeds are insufficient to pay the sum, no one for a moment supposes that there is any claim to have the sum made up from any other fund. A difficulty arises as to the smaller legacies, which are given in general terms, and not specifically out of the personal estate as the others are; these small legacies have naturally no priority CROMPTON, J.-In this case, which was moved over the others, and the whole scheme of the will ren- yesterday, we wished to look into the authorities which ders it probable that they were intended to come out of are collected together, and which are to be found in the personal estate like the others, but they are not the case of the Dean and Chapter of Bristol v. expressly given in the same way, and the form of the Guyse, 1 Wms. Saund. 103 d, upon the question will precludes them being treated even as general as to the liability of an executor sued in his legacies, and they must therefore be held to be charges own right, and all of which are very ably colon the real estate according to Greville v. Brown. In lected in a note to that case in the first edition of Muir v. Scott, 3 Bro. C. C. 326, which was referred Saunders by Serjt. Williams, and there the principle of to by Mr. Whateley to prove that if the small legacies the law is distinctly stated, and the different cases are charged on the land, the others must be also, the where a party is sued in his own right, and how far he charge was express, so that when examined into the is liable to be sued as an executor, are distinctly laid case is not applicable. The third question of priority down, and the result given in this note. Now I will is without any difficulty. The distinction between read the first part, though it is not strictly applicable this case and the one in Collier (Thwaites v. Foreman) to the case, to show the ground of the rule of law as to is, that in that one the testator used words equivalent an executor, whichever way he is sued, having a to "imprimis," "in the first place," &c., words of defence under certain circumstances, the value of the

Use and

April 24 and 25.

PATTEN v. REID.

occupation against an executor-Suing executor in his own right.

When an executor is sued for use and occupation in his own right, he must, in his defence, show that his occupation is as executor, and that he entered in that character; that he has no assets, and that the value of the land is not equal to the rent. Where the land yields some profit, but less than the rent, he may tender the amount of profit and plead tender, or he may pay it into court.

This was an action against an executor for use and occupation, not in his capacity as executor, but in his own right. At the trial before Mellor, J., a verdict was returned for the plt.

Patchett now moved to set aside that verdict, and to enter a nonsuit on the ground that there was no evidence to support the verdict for the plt.: (Nation v. Tozer, 1 C. M. & R. 174; Remnant v. Bremridge, 8 Taunt. 191; Hornidge v. Wilson, 11 A. & E. 645; 1 Wms. Saunders.

Cur, adv. vult.

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