.K] LORD LOVAT v. THE DUCHESS DOWAGER OF LEEDS. [V.C. K. March 11, 12, and 17. LEEDS. existence of such funds, it does not apbut the question is, whether the notice to LORD LOVAT V. THE DUCHESS DOWAGER OF is was a good and sufficient notice to prevent re of Charles Robert Thompson remaining still Will-Construction-Accumulation for payment of order and disposition of the bankrupt. There oubt that if a person purchases from a residuary entitled to a share of a testator's estate, or mortgage of it, it is sufficient if he gives notice executors or executor, and he will prevail over ubsequent incumbrancer, whatever notice such ient incumbrancer might give. Put the simple a person taking a charge upon the share of A., uary legatee in a suit, giving notice to the sole or, and at the same time some property to which tator was entitled, but forming no part of the to a share of which A. was entitled, was being stered in another suit,-to administer the estate ch such property formed a part, different funds be in court in the different suits, and it was sible to contend that mere notice to the executor, it a stop-order, was not good as to all the funds, supposing the property was paid in under the e Relief Act. If it were to be held not good, decision would put an end to any safe dealing such a share, and would be very detrimental. ule in Loveridge v. Cooper, and that class of was laid down to prevent an assignor obtaining se credit to deceive and delude, and doing all I could reasonably be required to prevent such a Suppose a second assignee, knowing nothing first, neglected to go to the executor, it was his fault, and notice having been given by the first gagee prevented the protection which such notice i have afforded to any reasonable man, and fore notice to the executor satisfied the exigency e rule requiring that something should be done to ent the fund being under the control of the nor, and notice to the executor was good for every on of the assets, whether in his hands or not; and act of property afterwards coming in did not affect alidity of the notice, even supposing the assignee ot get a stop-order. Such assignee probably knew ing of the suit or payment into court, and suppose a equent assignee had such knowledge, and got a stopr, that could not prevail against the first. The e, therefore, was good and effective, both as to Is in court and outstanding, although of course, if ncumbrancer before notice be given to the executor any one gets a stop-order, that will prevail. In tthews v. Gall the identical question arose, and the ce was held good. Day v. Day tends to support view, and even in the present case, if a right to perty accrues in the testator's lifetime the notice is d, and it would be contrary to the decisions to hold erwise. With regard to the question as to the effect paying money into court under the Trustee Relief , in the case of Warburton v. Hill, Wood, V. C. erred to the enormous inconvenience which must ue if the Accountant-General were held to be a trustee the ordinary sense. Indeed it was obviously absurd, if so the court or Accountant-General and the person ing the money in would be co-trustees. In Wil ms's Settlement the trustees disagreed and one paid efund into court, and that was no decision that he s deprived of the character of trustee, for it could not got at without him, and that proved that he was trustee. The Act when looked at has no such ect. Thorndike v. Hunt does not affect that view, therefore, notwithstanding the fund was paid in der the Trustee Relief Act, notice to the executors evails against the right of the assignees under the octrine of order and disposition. mortgage-debts-Payment of taxes-Income-tax-Right to cut timber. The Duke of L. devised his real and personal estate to trustees, upon trust as to his mansionhouse, &c., for his wife for her life, with a direction that the trustees should defray all taxes, parliamentary, parochial and otherwise, affecting the same. He then directed the trustees to pay an annuity, out of the rents of his estates in the North Riding of Yorkshire, of 6000l. to his wife for her life, and subject thereto to stand possessed of all his real estate in trust for his sons in tail male; and on failure of such issue, which event happened, upon trust to pay the rents and profits thereof for the discharge of the mortgage-debts on his estates, and subject thereto in trust for the present duke and his assigns for life, without impeachment of waste, with remainder to his first and other sons in tail male. The testator afterwards made a codicil to his will, whereby he directed his trustees, after the death of his wife, out of the rents and profits of his estates in the North Riding of Yorkshire, to set apart the sum of 5000l. yearly, for twenty-one years, to accumulate and be applied for the discharge of the mortgage-debts on his estates: Held, that the income-tax payable on the mansionhouse, &c., occupied by the testator's wife, ought to be defrayed by the trustees: Solicitors for the plt., Messrs. Clayton and Son, ancaster-place. Solicitor for the deft., Mr. O. Webb, Bedford w. Held, also, that the codicil directing the accumulation The questions in this suit arose upon the construction of the will of the late Duke of Leeds, who, after appointing the plts. the trustees and executors of his will, directed that all his just debts (except moneys owing and secured upon or by virtue of any mortgage, charge, or incumbrance affecting his freehold, copyhold and leasehold hereditaments and tenements thereinafter devised and bequeathed, or any of them, or any part or parts thereof respectively), funeral expenses, &c., should be paid out of his general residuary personal estate, and in case it should be insufficient for that purpose, the deficiency was to be raised out of the freehold, copyhold and leasehold hereditaments and tenements thereinafter devised and bequeathed. Then he gave certain legacies, which are not material to the present questions, and proceeded thus: "I give and devise all my freehold and copyhold manors, messuages, farms, lands, tenements, advowsons and hereditaments whatsoever and wheresover (except estates vested in me as mortgagee or trustee), which, as owner of or in execution of any power or otherwise, I am competent to dispose of for an estate of inheritance, together with the rights, members and appurtenants thereunto belonging, subject and charged as aforesaid, unto and to the use of the said Thomas Alexander Frazer, Lord Lovat, Lord John Scott, Mark Milbank and George Townshend Hudson, their heirs and assigns for ever, upon the trusts following (that is to say): as to my capital messuage or mansion-house, called Hornby Castle, situate in the North Riding of the county of York, with the V.C. K. LORD LOVAT & THE DUCHESS DOWAGER OF LEEDS. [VCL The testator, after making other limitation, giving certain particular bequests and directions it is not necessary to state here, gave all the m of his personal estate to his wife. The testator made several codicils to his vi one bearing reference to the matter in conten being as follows: "This is a codicil to the last will and testamor! ^. the Most Noble Francis Godolphin D'Arcy, De Leeds, which will bears date the 3rd day of Ang in I hereby wholly revoke the codicil to my su » bearing date the 4th day of August 1851. It ratify and confirm all the bequests and trusts c in my said will to or for the benefit of my wi Duchess of Leeds. I direct that from and immed after the death of my said wife the trustees of the for the time being of my will shall, out of the 1o and profits of the freehold, copyhold, or les manors, messuages, farms, lands, tenements and ditaments in the north riding of the county of li devised by my said will, set apart the net s 5000l. yearly and every year for the term of tra one years from the time of the death of my wife, or for such other term as shall suffice fr! objects and purposes hereinafter expressed of mi be consistent with the rules of law; and I de that the trustees or trustee for the time beig my said will shall, from time to time, lay out mi vest the said yearly sum of 5000%. in their a in the parliamentary or public stocks or funds of United Kingdom, or upou Government secure upon mortgage of freehold or copyhold esta England or Wales, but not in Ireland, with p park, gardens, pleasure-grounds, stables, buildings and I appurtenances thereto belonging or appertaining, and also the several pieces or parcels of land attached to, or occupied and used with the said castle; and also the right to the game on the estates or manors appertaining to the said castle, upon trust for my said wife, the Duchess of Leeds, and her assigns, for her life." And after a direction that a part of the castle should be applied for the accommodation of his mother, who predeceased him, the testator continued thus: "And I further direct my said trustees, out of the rents and profits of all such of my said freehold and copyhold hereditaments and tenements as are situate in the North Riding aforesaid, to insure and keep insured to the full value against destruction by fire, and also to repair and keep in repair all the messuages, buildings and erections in or upon the hereditaments so limited to or in trust for my said wife and mother respectively as aforesaid, during the continuance of their respective interests therein, under the same trusts, and also during the same period to pay and defray all taxes, parliamentary, parochial, or otherwise, affecting the same hereditaments, or any of them, and the salary or wages of all bailiffs, stewards, gamekeepers, gardeners, and other persons employed by my said trustees or trustee; and as to all my said freehold and copy-cerning the said yearly sum of 5000%, and as hold hereditaments and tenements situate in the North Riding aforesaid, subject as aforesaid, upon trust to pay thereout to my said wife or her assigns, during her life, one annuity or clear yearly sum of 60007. by equal half-yearly payments, clear of all deductions, the first of such half-yearly payments to be made at the end of six calendar months next after my decease. And I do hereby declare that my said wife, or her assigns, shall be entitled to call upon my trus-vary and transpose such investments from t tees for the time being to secure in such manner time for others of the like nature, when and as ie as counsel shall advise the due and regular payment of or he shall think fit, and shall invest the divi the said annuity, by giving to her the usual powers of interest and annual income of the said distress and entry on the said freehold and copyhold funds and securities from time to time whe hereditaments so charged therewith as aforesaid, and as they shall be received, and add the same to by limiting any term or terms of years for better se- principal, and so from time to time to the curing the same annuity; and, subject to the trusts that the said yearly sums of 5000l. and the in herein before declared of and concerning my said free-thereof shall form an accumulating fund for the hold and copyhold hereditaments, situate in the North Riding aforesaid, I do hereby declare that my said trustees shall stand seised and possessed of and be interested therein, and also of and in all other my said freehold and copyhold hereditaments so given and devised to them as aforesaid, in trust for every son of mine and his issue male in succession, so that every elder son and his issue male may be preferred to every younger son and his issue male, and so that every such son may take an estate for his life without impeachment of waste, with remainder to his first and every subsequent son successively according to seniority in tail male; and, on failure of such issue, upon trust out of the rents and profits of my said freehold and copyhold hereditaments, but not by mortgage or sale thereof, or of any part thereof, to raise and pay all moneys owing and secured upon or by virtue of any mortgage, charge, or other incumbrance affecting the said freehold and copyhold hereditaments, or any of them, or any part or parts thereof respectively; and, subject as aforesaid, as to all the said freehold and copyhold hereditaments, in trust for the Right Hon. Francis Lord Godolphin and his assigns, for his life, without impeachment of waste; and immediately after the decease of the said Francis Lord Godolphin, in trust for George Godolphin Osborne, the eldest son of the said Francis Lord Godolphin, hereinafter called George Godolphin Osborne the son, and his assigns for life, without impeachment of waste; and immediately after the decease of the said George Godolphin the son, in trust for George Godolphin Osborne, the eldest son of the said George Godolphin Osborne the son, and his assigns for his life, without impeachment of waste." pose of discharging all sums of money secured by C. K.] LORD LOVAT V. THE DUCHESS DOWAGER OF LEEDS. [V.C. K. Beav. 334; Wall v. Wall, 15 Sim. 513; Sadler v. Rickards, 4 K. & J. 302; 5 & 6 Vict. c. 35, s. 70; 43 Geo. 3, c. 99, s. 33; 4 & 5 Will. & M. c. 1. orth Riding of the county of York under and by ↑ of my said will and this codicil. And as by the last mentioned codicil. I devised or athed all that annuity or yearly sum of 1500l. to The VICE-CHANCELLOR.-There are two questions I am entitled, payable out of the revenues of the raised in this case: first, in reference to the right of office, to or in trust for my said wife for her life, the duchess to have the Hornby-castle property, which ter her decease in such manner as in the said was devised to her for life, relieved from the liability to I appears; now I hereby confirm the devise or income-tax by reason of the clause in the will; the st of the said annuity to or in trust other question is, whether, taking the will and the y said wife; but I revoke the disposition thereof codicils together, the tenant for life of the estates is after her decease, and give and bequeath the subject to the interest of the duchess in the Hornbyannuity, after her decease, unto and to the castle property, entitled to the possession and receipt es or trustee of my said will for all my estate and of the income, or whether the income is to accumulate, st therein, upon such trusts and for such intents at all events during her life, for the purpose of paying urposes as shall be subsisting of and concerning off the mortgages on the English estates. It will be eehold estates in the county of York, under and convenient to deal with the latter question first. The rtue of my said will, or this codicil (other than testator, at the time he made his will, was the owner except the trust for accumulation herein con- of very considerable estates in the North Riding of 1). The testator then authorised the trustees, Yorkshire and elsewhere in England. By his will, the consent of his wife during her life, and after after appointing four gentlemen, who are plts. in this eath of their own authority, to sell the post-office suit, as trustees and executors of his will, he directs ity, and to invest the proceeds of the sale in the that all his debts, except mortgage-debts, shall be paid. base of lands in Yorkshire, to be settled to the Here his Honour referred at great length to the will uses as he had declared by his will respecting and codicils, which are already given in the above e which he had devised. He then devised his statement of facts, and proceeded thus:-Now the estates in Scotland to the trustees of his will, question is, whether the direction in the codicil, from ect to his wife's life-estate therein, and all charges and after the death of the wife, out of the estates in incumbrances affecting the same, 'upon such the North Riding to set apart 5000l. per annum for sts as are subsisting of and concerning the real the purpose of forming an accumulating fund for the tes devised by my said will under and by virtue of payment of the mortgages on the testator's estate same will and this codicil, other than and except supersedes the directions contained in the will respecttrust for accumulation herein contained, or as nearing the payment of the mortgages out of the rents and reto as the nature of the said hereditaments lastly eby devised, and the rules of law and equity, will nit." He then gave the trustees power to sell Scotch estates, and out of the proceeds to pay off mortgages, and, subject to those payments, to int the residue of the proceeds in the purchase of ds in Yorkshire, to be settled to the same uses as se mentioned as to the estates devised by his will. The testator died on the 4th May 1859, the day r the date of the above codicil, and his title deaded upon the deft. George Godolphin Osborne, ke of Leeds. The plts. having been advised that various difficult important questions of construction arose upon the ns and provisions of the said will and codicils, filed present bill for the administration of the late duke's ate. The questions now raised were-first, whether the ection in the codicil to set apart 5000l. for an acculation fund for the payment of the mortgages on the tator's estate superseded the direction contained in will respecting the payment of the mortgages out the rents and profits of the estate. profits of the estate; or, in other words, whether by implication there is a revocation of those clauses in the will. I apprehend the principle that I must act upon is this, that, in order to come to a conclusion that there has been, though not in terms a revocation, something that must be treated as a revocation, I must find that the clauses in the will and the codicil are so absolutely inconsistent with each other that they cannot co-exist. Now the direction in the will which it is said is inconsistent with the clauses in the codicil as to the payment of the mortgages out of the rents and profits is a direction which is not to take effect until the death of the widow, who is still living. The clauses in the will are to take effect immediately on the death of the testator; they are to be operative from the death of the testator during the whole of the wife's life, and afterwards if the mortgages should not be satisfied in the wife's lifetime. The question then is, is the direction as to what is to take effect after the death of the wife necessarily a revocation of the clauses in the will so far as they relate to the period during the life of the wife? Now of course I do not determine the question whether after the death of the wife the direction to set apart 5000l. a-year out of the rents for the payment of the mortgages does release from the death of the wife all the rest of the income so that the tenant for life would have it. I do not decide that, because it is not necessary to decide it. If it were, in order to determine whether the present duke is to be entitled to the immediate possession of the rents and profits, I should be bound to decide it. The rule on the subject is this, that the court will not decide questions which are to arise amongst persons hereafter, when those persons having an interest may be different persons from those now before the court. But even then, if it is necessary to decide it in order to determine the right to some present enjoyment, the court will decide that question. In the case of Lord v. Colvin I decided a question which, according to the general rule, I should have abstained from deciding, because I could not decide whether A. B. was entitled to the income without deciding it. But other quesThe following cases were cited:-Turner v. Molli- tions which did not arise I abstained from deciding. M, 1 J. & H. 334; Lethbridge v. Thurlow, 15I believe that is the general rule on which the court The second question was, whether income-tax was ren. Amphlett, Q. C. and E. F. Smith appeared for the ake of Leeds. Baily, Q. C. and Renshaw for the trustees. Leeds. Cole, Q. C. and Kay for the tenant in tail. Vol. VI, No. 132, N.S. time al tue rence and press of the the buong to the temand for de: as aring that, the evit. riding to the paros respen THT IS aturesad doing the o of the moniga y sea of this 5000d Esse-, if their resperire in prests therein, sour Be sue apportion that the testator means same trusta, qui is: ring the same petičn the suring the life of his wife the directions in the and defray all taxes, parliamentary, parochuk, trad w kind de speracine? I ate they will be in- wise, xfecting the same bereditaments or any ble omaistent with the causes in the wt far as they and the salary or wages of all califs, stewards, pe openca after the dean of the wie, for the purpose of keeper, gardener, and vaber persons employed by m the argument; but I svafews I cannot see why they said trustees or trustee." Now the questit are inconalatent with the clauses of the way upon this by the duchess is, whether she is not e should not the textur uy, "I man, during me life of 15 have defrayed by the trustees of this tra my wife, all the rents and profits, after paying her loome-tax payable by her to the Governmen 9/900l. apear to acumulate, to pay of the mortgages, respect of this property thus devised to her in but when ate des then I shall be satisfied that the. The words are "all taxes, parliamentary, parochar BOL. a-year be set apart, and all the rest of the otherwise afecting the same hereditaments." Them insome go to the tenant for life? The testator's question is, whether those words, putting aside a direction is that from his death in the first instance questions or dates, would be sufficient ta emma. until the payment of all the mortgages, the whole of income-tax? It has been said that, by the promin the rents and profts should be kept away from the, of the 5 & 6 Vist. c. 35, the income-tax is 2 tenant for life. May be not by his codici say, "Although charge upon the lands, but is a charge upon the pan. I do not mean to interfere with that from my own who occupies the lands; that it is only recovera death until the death of my wife, I do mean to in-distress against the person of the individual who w terfere with it after her death by saying I will substi- the debt, if it be established in a proper court, ban tate for it a sum of 5000l. a-year, in order to pay there is no charge upon the lands. I think t off the mortgages?" There is nothing inconsistent in correct view of the Act. It is not charged up that. I quite agree that if it would be absurd to lands. With regard to the land-tax, there is tha suppose the two could co-exist, I should be bound culiarity about the Act which first imposed it, to say the effect of the codicil was to revoke those is by the language of that Act made in terms a tet clanses; but you cannot hold a subsequent codicil to upon the lands, which is not the case as revoke a prior will unless you see clearly and un-income-tax. But when you come to look at the ambiguously the intention to revoke. Nor can you sion of the Land-tax Act, it does not appear to get infer revocation from the improbability-it must be remedy except the same sort of remedy which a g the impossibility, the unreasonableness-of supposing for the recovery of the income-tax; and I believe t that the testator meant that the two should co-exist. is no other tax except the land-tax with regant Not finding that, I am bound to come to the conclusion which the Act imposing it imposes it as a charge to that the trust still remains for the application of the the lands. Now does or does not the inc whole income during the life of the wife for the although not a charge upon the lands, affect the hee payment of the mortgages. It has been contended ditaments? The question is, what did the tas that the language in which the testator in the codicil mean by these words, "taxes affecting the here speaks of the mortgages is language which the ments ?" It is very difficult to say that court ought to interpret to mean in express come-tax does not affect the hereditaments terms the whole of the actual mortgages which much for example as the window-tax. The w shall be subsisting at his death. Therefore, when the tax is not a charge upon the house; the wi testator makes a provision for the payment of the is merely a charge on the person occup mortgages by means of the 5000%, and uses those house, and his goods and chattels may words, they must mean not the mortgages which shall in distress. It is not a charge on the house, happen to be secured at the time of the death of the it not affect the house? Should you not sa wife, but they must mean all the mortgages existing tax which must be paid by any person who at the time of the testator's death. I confess I think the house is a tax affecting the house? Is t it is an unnecessary strain upon the language to put the reasonable interpretation of the words? It that interpretation upon it. The conclusion I come to to me it is. For example, you might say that a is, that the effect of this testamentary instrument is tain house has become very much affected by that, from the death of the testator to the death of bad neighbourhood having grown up around it, or s the wife, without saying what would take effect nuisance having been created in its neighbo after the death of the wife, the whole of the rents You may say that does not affect the house, or and profits are to be applied to the discharge of the person who occupies it. Would you not, in ordinary mortgages until they are discharged. The other ques-guage, say that whatever affects everybody who tion is one of a totally different character, and far less the house by reason of the enjoyment, affects the p important in point of amount and interest to the in relation to which the person who occupies it is parties, but still it is a question which is not without I must say that it appears to me that the fair intpa its difficulties. The testator having by his will devised tion of those words, for which, of course, I can all his estates to his trustees upon the following trusts, authority, is, that the income-tax declares that, as to Hornby-castle, "with the park, affecting the hereditaments as the window-tas gardens, pleasure-grounds, stables, buildings, and ap- other rates or taxes which the person pays by purtenances thereto belonging, and also the several of his ownership or occupation of the premises pieces or parcels of land attached to or occupied and the poor-rate. used with the said castle;" then there is a pro- charged by Act of Parliament or in any o It is not suggested that is as much a tas vision as to the duchess dowager having a certain por- upon the lands. But the poor-rate is a rate w V.C. K.] LORD LOVAT v. THE DUCHESS DOWAGER OF LEEDS. linary language, as well as in correct and careful guage, you would say affects the land or the houses respect of which it is payable. So with regard to highway-rate and the various parochial and other ces. Being of opinion then that the income-tax prorly comes within the description of a tax affecting hereditaments, then the other questions are raised. is said that by the Act imposing the income-tax ery contract or agreement by which one person dertakes to pay the income-tax of another is void. ad it is stated that the clause is taken from the old Come-tax Act of the time of George III. I have in vain deavoured to suggest to my mind any possible reason the Legislature introducing that clause either into e old Act or the present Act. The only reason that gests itself to my mind, if it can be called a reason, that it was done out of the apprehension that, if it re not so enacted, there would be some impediment rown in the way of the Government collecting it. at inasmuch as the individual occupiers of the preses are liable to pay this rate, I cannot see why the overnment either in the time of Geo. III., or recently, ere afraid of omitting the clause on the ground that ere would be any difficulty in the way of recovering e tax. But there is the enactment, which must ave its force, whether we can devise any sufficient eason for it or not. [Here his Honour reviewed he cases, and proceeded thus.] Being of opinion that he passage in question would include income-tax from he construction of the words, and upon the authority f many cases, that there is nothing to prevent either he gift of the annuity free from deduction, or, as in his case, having given a certain estate to a person for fe, and created a trust of other property, out of which the trustees are to pay the income-tax of the arty to whom it is given, it appears to me there is othing illegal in such a trust, and that such a trust ought o be carried out. Supposing I were to hold that the and-tax should be charged on the land, that that was tax which did come within the terms" affecting the ereditaments," because it is called a charge, the tesator clearly did not mean the duchess to pay all parlianentary, parochial, or other taxes affecting the herelitaments. And in every point of view it appears to me he only way of carrying out the intention of the estator is, to say that the trustees are to pay not only the land-tax, house-tax, parochial taxes, poor-rates, &c., but also to pay the duty which she would have to pay to the Government in respect of the income tax. On the 17th March, the cause was again brought before his Honour, when the question was argued whether, after the decision of the court that the rents and profits of the estate were to be applied to the liquidation of the mortgages upon the property, the present duke, the tenant for life, had a right to cut timber, and to receive the proceeds of that which had already been cut under the direction of the court. Upon this point the following authorities were referred to:- Hussey v. Hussey, 5 Madd. 44; Bacon v. Proctor, Turn. & R. 31; Aspinwall v. Leigh, 2 Vern. 218; Claxton v. Claxton, 2 Ib. 152; Wolf v. Hill, 2 Swanst. 149; Kekewich v. Marker, 3 M. & G. 311; 8 Hare, 291; Briggs v. Lord Oxford, 5 De G. & Sm. 156; Dicker v. Hamer, 1 Dr. & Sm. 284; Bishop v. Bishop, 5 Jur. 931; Ferrand v. Wilson, 4 Hare, 344, [V.C. K. to one the rents and profits for life, and after his The VICE-CHANCELLOR.-The question is, in what |