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The wife afterwards died in the husband's lifetime without issue; and the husband, from the time of her death in April, 1815, till a sale of the estate in November, 1838, remained in uninterrupted possession of the entire property, without making any acknowledgment of the title of any other person: -Held, that this was a case falling within the 15th section of the stat. 3 & 4 Will. 4, c. 27; and that, notwithstanding the husband's possession of the moiety which descended to the wife might not be adverse, the heir-at-law of the wise not having made his claim within five years after the passing of the act, was barred by the statute. Ex parte HasellIn the matter of the Manchester Gas Act,

617 4. The 19th section of the stat. 3 & 4 Will. 4, c. 27, which removes disabilities by reason of residence in Ireland, &c., is applicable to cases of residence in Ireland before the passing of the statute, if the controversy has not arisen till after the passing of it,

Ibid. 5. A constructive trust may be barred by long acquiescence. Ibid.

sioners, if they intend to determine any suit heretofore pending in this Court, must give specific notice of their intention to that effect, the ordinary notice to commute being insufficient for that purpose. But there is no doubt as to the jurisdiction of the commissioners to determine such suits, though the jurisdiction is discretionary. Wetherell v. Weighill,

243 2. The commissioners under the Tithe Commutation Act (6 & 7 Will. 4, c. 71) have no jurisdiction to interfere with suits for tithes which were pending in the Court of Exchequer when the act was passed. Girdlestone v. Stanley,

421 3. The rector of C. brought his bill for an account of tithes, charging tiat the defendants sometimes pretended that the lands were discharged from tithes by reason of various moduses, &c., and at other times that the lands were extra-parochial, whereas the defendants had divers papers and documents in their possession which would shew the plaintiff's title, and especially that the lands were in the parish of C. Plea of no titheable matters overruled. Clayton v. The Earl of Winchelsea,

426 4. Semble, that a plea of no titheable matters may enumerate specially all the tithes demanded, but it must deny the perception not only of each species of article, but of any one article in that species.



Practice, 8, 18, 19.


See MortgAGOR AND Mortgagee.



PLEA AND PLEADING, 15, 16, 17.



PLEA AND PLEADING, 18. 1. Under the 45th section of the Tithe Commutation Act, the commis

1. Where a trustee had dissented from the conversion of Navy 5l. per Cents. into New 41. per Cents., under circumstances which were charged by the bill to be injurious to the trust property, it was referred to the Master to consider how the trustee ought to have acted in relation to the trust in March, 1822, the time limited by the act of Parliament for the assent or dissent of trustees; the Court at the same time observing, that the trustee would receive full protection in equity, if it could be shewn that he had acted as a sensible and prudent man, acting for the common benefit of all the cestuis que trust, might fairly have acted. Angell v. Dawson,

308 2. Where a manor is conveyed to trustees, upon trust to divide the profits of it amongst the tenants of the manor, it is the duty of trustees not to let the right of sporting to any of the tenants upon terms advantageous to them as tenants, but to make the best profit they can, by letting the right of sporting to all eligible persons, whether tenants or otherwise, and to divide the profit so made rateably amongst the cestuis que trust. Hutchinson v. Morritt,

547 3. In a suit for the appointment of new trustees, the Court refused to insert a clause in the will, authorizing the new trustees to appoint others in their room. Brown v. Brown, 395

4. Form of decree against a trustee purchasing the trust estate at an alleged undervalue, and making permanent improvements thereon. Williamson v. Seaber,


cent. on the unpaid purchase-money from the time of taking possession, and to pay the costs of the suit. Hall v. Laver,

191 2. Mortgagee of an equitable estate not a necessary party to a bill filed by the mortgagor and his trustee against a purchaser for the specific performance of the agreement to purchase.

Ibid. 3. Original vendee of an estate not a necessary party to a bill against his assignee for specific performance of an agreement to purchase.

Ibid. 4. Vendor of an estate obtained a decree for specific performance, with a declaration that, if the purchase-money was not paid by a given day, the estate should be sold, the proceeds paid to the vendor, and the purchaser be made personally liable in the event of any deficiency. The Master fixed the day of payment, but the purchaser died before that day, insolvent, and a creditors' suit was instituted for the administration of his assets. Upon a bill of revivor and supplement filed by the vendor, praying to have the benefit of the creditors' suit as well as his own: -Held, that he was not entitled to prove against the general assets of the testator, and at the same time to reserve his lien on the estate contracted to be sold, in case of a deficiency in the general assets. Rome v. Young,

199 Quære, whether in this case he had any claim on the general assets until after the estate had been sold, and, if he had, whether he was entitled to prove for the whole amount, or only the deficiency, after sale of the secu

Ibid. 5. A. being entitled, under his marriage settlement, to a life interest in certain freehold estates, with remainder to the use of trustees for a term of 1,000 years, to secure a jointure and portions, with remainder to himself in fee, conveyed part of the lands to B.




rity ?

1. Purchaser after long possession, and vexatious objections to complete the purchase, held to have waived his right to an investigation of the title, and decreed to perform the agreement specifically, to pay interest at 41. per

the power.

in fee, in exchange for other lands. B.'s heir afterwards having contracted for the sale of the land, the purchaser refused to complete the contract, on the ground that A. had no power to exchange the lands in fee. The vendor then procured the execution of certain deeds, with a view of bringing the exchange within the terms of a power of sale and exchange, given to the trustees under the settlement:-Held, under these circumstances, and likewise on the ground that the afterexecuted deeds were grossly inaccurate, that the purchaser was not bound specifically to perform the agreement. Cowgill v. Lord Oxmantown, 369

Semble, that the after - executed deeds, although the surviving trustee of the marriage settlement was a party to them, did not make the transaction between A. and B. a due execution of

Ibid. 6. The conditions of sale represented, that a deed under which M.C. claimed an interest in the estate was a forgery, and that the vendor had made his affidavit to that effect, and, therefore, that the purchaser should not take any objection to the title by reason of that deed. The purchaser afterwards refused to complete the purchase, brought an action for his deposit, and obtained a verdict, the jury declaring the deed to be genuine. In this state of circumstances, it was held by a court of law that the purchaser was precluded from rescinding the contract, on the ground that the statement of the plaintiff turned out to be untrue, and by a court of equity, that the vendor, in case he could make a good title in other respects, was entitled to a decree for the specific performance of the contract, with costs. Cattell v. Corrall,

413 7. Upon a bill filed by a vendor for the specific performance of the contract, it appeared, that he could make a good title before the commencement

of the suit, but did not shew a good title to the purchaser until afterwards: -Held, that though specific performance must be decreed, the purchaser was entitled to the costs of the suit generally. Townsend v. Champernowne,

505 8. By an agreement between vendor and purchaser, it was agreed, that the purchaser should be entitled to the rents on the 1st May, 1813, or from such time as the purchase should be completed. An abstract of title was afterwards furnished to the purchaser, and the title appeared to be satisfactory to the purchaser; and in May, 1806, he sent the vendor a draft conveyance for his approval, which was returned approved in July, 1816. Afterwards, the purchaser, on the suggestion of counse), made several objectious to the title, and delayed completing the purchase. In November, 1817, the vendor filed his bill for specific performance, and in that suit the Master found, that the vendor could make a good title before the bill was filed, but did not shew a good title to the purchaser till the 20th January, 1825:-Held, upon a decree for the specific performance of the contract, that the proper date of the conveyance was the 20th January, 1825.

Ibid. 9. Quære, upon what principle the increased value of an estate, arising from the dropping of lives, between the commencement and completion of the contract, is to be calculated ? Ibid.

10. Specific performance decreed in favour of a purchaser, though no solicitor acted for the vendor; and though the contract was executed under circumstances which might easily have led to fraud; no fraud being proved in the vendor or his agent. Lightfoot v. Heron,

586 11. The fact that a party was considerably in liquor when he entered into an agreement is no reason for the Court refusing a decree. for specific performance, if there was no fraud,



LEGACY AND LEGATEE. 1. Testator bequeathed 80,000 rupees to his daughter absolutely upon her attaining 21; and in the event of her dying under 21, he bequeathed the fund to his brother's children. He then directed that should his daughter live to marry, her interest in the said rupees was to be enjoyed by her during her natural life, and, at her decease, the principal to be divided amongst her children:--Held, that the latter clause was to be confined to the case of a marriage under 21, and consequently that the daughter, who did not marry until after she had attained the age of 21, took the fund absolutely. Vulliamy v. Huskisson,

80 2. Where residuary property was bequeathed to a woman, to be paid to her at 25, with a proviso that it should be put in settlement in the event of her marrying before that time, but no gift over of the property in the event of her dying before that time:-Held, that upon her attaining 21 unmarried, she was entitled to the income of it. Grant v. Grant,

171 3. The next of kin of a party who died leaving a codicil, but no will, allowed to take the residue, upon giving recognisances to refund in case a will should be found. Bakewell v. Tagart,

173 4. Testator bequeathed the residue of his property to trustees, upon trust

the interest and dividends thereof unto and between his grandchildren, E. and G., during their respective natural lives, in equal shares; and, after the decease of the said E, and G., upon trust to pay, assign, and transfer such interest and dividends, and the

stocks, funds, and securities upon which the same should be then invested, unto and between all and every the child and children of the said E. and G. in equal shares; and if there should be no child or children of the said E. and G. living at the time of their decease, or born in due time after the death of G., then upon trust to pay, assign, and transfer the same to the testator's personal representatives. E. died in the lifetime of G., leaving several children. G. also had children: -Held, that G. was entitled to the whole of the interest and dividends of the trust fund during his life, and that, upon his decease, the corpus of the fund would be distributable among such of the children of E. and G. as should be living at G.'s death. Pearce v. Edmeades,

246 5. Testator bequeathed two leasehold houses to his sisters H. and M., to be held by them during their natural lives, they keeping them in good repair, and to be disposed of at their deaths as follows; namely, the house, No. 79, to descend to his sister A.'s eldest son or daughter, and the next heir male or female, until the expiration of the lease; and the house, No. 80, to descend to M.'s eldest son or daughter, &c., in the same words as before:-Held, that H. and M. took an absolute estate in the leaseholds.

Quære, whether, if it had been a devise of freeholds, H. and M. would have taken estates in fee or in tail? Ex parte HarrisonIn the matter of the Commercial Railway Act,

275 6. Testator devised his real and personal estates to trustees, who were also executors, upon trust, to raise thereout, by sale or otherwise, 4,5001., and invest the same in Government or mortgage securities, and pay so nich of the annual proceeds as should be necessary for the maintenance of his grand-daughter, M. A., until her age of 25 years, and then to pay the annual

to pay

proceeds to her for her life; and upon her death to divide the principal among her children, and if she died without children, among the testator's other grandchildren, B., C., and D.; and as to residue of the testator's real and personal estate, he directed his trustees to pay the rents, interest, and annual proceeds of it to the said B., C., and D. equally, till the eldest son should attain 25, and, upon that event happening, to convert so much of the residue as should not consist of money into money, and divide the same equally among B. C., and D.; and power was given to the trustees to advance to B. and D. part of their expectant portions before they attained 25:--Held, that it was the duty of the trustees to set apart and invest as soon as possible the sum

of 4,5001., and, for that purpose, to w

sell the testator's real estates, notwithstanding that none of the grandchildren might have attained 25; and in consequence of the non-performance of this duty by the acting trustee and executor, and other acts of misconduct on his part, a receiver was appointed. Richards v. Perkins,

299 7. A., by his will, directed the residue of his estate to be placed out and invested by the trustees of his will on freehold or Government securities, the interest and dividends of which securities he directed to be paid to his several children during their respective lives; and from and after the decease of his said children, upon trust, that his trustees should receive and take the rents, issues, and produce of all the trust estate and effects, and pay and divide the same unto and equally between all his surviving grandchildren who should be then living, share and share alike, until the youngest of them should attain the age of 21 years; and upon the youngest of them attaining such age, to sell and dispose of his real and personal trust estate, and convert the whole into money, and pay and divide


the same unto and equally between all such his said grandchildren, and the children and child of any such grandchild who may be then dead, leaving lawful issue; such children or child to take only his, her, or their parent's share; and if there shall be but one such grandchild who may live to attain the age of 21 years, then upon trust for such grandchild, his or her heirs, executors, administrators, and assigns: -Held, that the bequest to the children of the grandchildren was confined to the children of the grandchildren who should be living at the death of all the testator's children, and that the children of a grandchild who died in the lifetime of some of the testator's children, did not take any interest under his will. Qucere, also, if the bequest was not void for remoteness? Smith v. Farr,

328 8. A testatrix bequeathed the residue of her property to certain persons, some of whom lived in the west of England and others in Norfolk, and she appointed two persons to be her executors, one of whom lived at Clifton, and the other at Diss. The executors, having paid all the debts and specific legacies of the testatrix, entered into an arrangement by which the Clifton executor was to pay the residuary legatees in the west of England, and the Diss executor those in Norfolk; and the residuary funds were apportioned between them for that purpose. The Diss executor having made default in payment of one of the legatees in that neighbourhood :-Held, that the other executor was responsible for the default. Moses v. Levi,

359 9. Testator devised his real and personal estate to trustees upon trust to sell and lay out so much as should be sufficient to raise three annuities of 1001. each; and he directed that they should apply one of such annuities towards the maintenance and education of his grandchildren, the children of his



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