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1841.-Houghton v. Houghton.

ants in fee. That is the conveyance in which, as the bill alleges, James did not acquiesce.

A great deal of evidence was entered into to support the defendant's case: many exhibits were produced; and as it was impossible for me, at the time, to go through the whole of them, I took some time to read them over in order to see what they amounted to; and the conclusion which I have come to, is that the land was purchased, by William and James, with money which they had borrowed, from their father, for the purpose of making the purchase.(a) It is quite plain, however, from the evidence, that the land was treated, in some sense, as partnership property payments were made, to the father, under the name of rent, but obviously on account of interest; and a variety of improvements were made on the property at the expense of the partnership; and there was evidence to show that that sum of 600%, which was inserted in the valuation that was made [*505] of the partnership property, in order to ascertain *what William's share amounted to, was inserted with reference to improvements on the land which cost that sum, and which therefore might very fairly be considered as the value of the property, when it is considered that the property itself was mortgaged for the whole amount of the original purchase-money.

In my opinion, however, it is not at all a material circumstance to ascertain that the sum mentioned in the valuation as being the value, was really the full value. It appears that some of the parties disputed the accuracy of the valuation; and there is complete evidence that Thomas Houghton was dissatisfied and did not think that the account was made out large enough; but the material fact is this, namely, that, for the purpose of dividing the personal estate of William, the value of that property which was in its nature real, was included; and that, John acting upon the supposition that, by means of payments according to the ac count, he should acquire the personal property of William, (at least all the shares which his brother Thomas and his sisters had,)

(a) The defendants admitted, in their answers, that the 8001. was borrowed from James Houghton the father.

1841.-Houghton v. Honghton.

did make payments to them out of his own money. It is also proved that James knew what was going forward, and that that sum which was actually paid and appears to have been the amount of the purchase-money, minus John's share of it, was paid by a cheque on the partnership, or, in other words, out of the partnership assets; so that James who, at that time, was carrying on the business in partnership with his brother John, did allow a portion of the partnership assets to be applied for the purpose of paying off the mortgage.

Now I confess that I do not think this case stands on the proposition which was stated so very *plainly and [*506] broadly by Sir John Leach in the case of Phillips v.

Phillips: but the question before me is this, whether I have not sufficient evidence of the dealings between James and John with regard to this real estate (in which, as real estate, James then had the sole interest) to show that James consented, as regarded John, that it should be treated as partnership property and my opinion is that the evidence does amount to that.

I have this further observation to make, namely, that, by the mode of conveyance which, it appears, was adopted, in May, 1831, in consequence of directions given by James as well as John, the legal estate in four-fifths of the property, was conveyed to James and John as joint tenants; so that this effect was produced at all events, namely, that independent of any question of equity, four-fifths of the whole property in question belonged to John. The dispute, therefore, in this Court is, in reality, about the remaining one-fifth only; and, with respect to that one-fifth, my opinion is that there are circumstances which make it imperative upon the Court to declare that, as between James and the plaintiff who represents him as his heir, and John, the estate is to be considered as personal estate.

My opinion further is that this bill has been filed in utter ignorance of the truth of the case. The allegation, in the bill, that James never acquiesced in the indentures of May, 1831, turns out to be utterly groundless. If that allegation had been proved, still, if the effect of that conveyance had been fully considered and those facts ascertained, which they might have been

1841.-Archer v. Slater.

by applying either to Thomas Houghton or to the attorney who acted for all parties in their transactions amongst themselves, it would have appeared that, with respect to a large [*507] *portion of the estate, no claim could be supported. My opinion, therefore, is that I must dismiss the bill

with costs.

ARCHER v. SLATER.

The probate of a will is not a sufficient authentication of it, so far as it relates to copy-holds.

IN the course of the argument in this case (reported ante, Vol. X. p. 624,) the Vice-Chancellor said that he knew of no case in which the Court had established a will relating to copyholds; and that he had always understood that if a copyholder surren dered his tenements to the use of his will, and then made an instrument which the Ecclesiastical Court, on his death, admitted to probate, the probate copy was sufficient to guide the uses of the surrender.

Lord Eldon, however, in Jervoise v. The Duke of Northumber land, (a) said: "This being a devise of copyhold estates, if it is a good will of personal estate, it will be a good will of copyhold estates. I do not know whether it has been proved as this Court requires; but it is admitted. I say so, because I do not take it, according to the old course of the Court, that the fact of the probate of a will in the Ecclesiastical Court, was evidence that copyhold estates would pass by it: but here the heir at law(b) admits it.

(a) 1 Jac. & Walk. 570. See Phill. on Evidence, tit. Probate.

(b) The copyholds were descendible according to the course of descent at common law.

Wills relating to personal estate must be now executed in the same manner as wills relating to real estate. But, it is apprehended, that the Courts of Law and Equity will not admit the probate copy as evidence of a devise.

1843.-Bankes v. Le Despencer.

*BANKES V. THE BARONESS LE DESPENCER, AN INFANT, [*508]

AND OTHERS.

1843: 14th, 24th, and 25th January, and 13th February. Estates settled so as to go along with a barony in fee.

Form of settlement approved of by the Court, in pursuance of a direction contained in a deed executed by the late Lord Le Despencer that his estates should, so far as the law would allow, be strictly settled, after his death, so as to go along with the baronial dignity of Le Despencer (which was a barony in fee,) and be held and enjoyed by the person for the time being possessed of the same dignity, for the support thereof, so long as the person possessed of the same dignity should be a lineal descendant of the late Lord, but with a provision that in case the dignity should, at any time or times within the limits prescribed by law for strict settlements, be suspended or in abeyance, the rents and profits of the same estates should, during the continuance of every such suspension or abeyance, be equally divided amongst the co-heirs per stirpes of the person or persons respectively by reason of whose death or deaths without issue male, such suspension or abeyance should be, for the time being, occasioned.

By the order made at the hearing of this cause for further directions, on the 10th of March, 1840, (sce ante, Vol. X. p. 576,) it was referred, to the Master, to approve of a proper settlement to be made of the manors, estates, hereditaments and premises comprised in the indentures of the 7th and 8th days of August, 1826, upon the uses and trusts and according to the directions expressed, concerning the same, in and by the indenture of the 8th of August, 1826: and the Master was to state the same to the Court.

On the 6th of July, 1842, the Master reported that, the draft of a settlement having been laid before him on behalf of the plaintiff, he had perused and settled and did approve of the same as a proper settlement to be made of the manors, estates, &c., comprised in the indentures upon the uses, &c., before mentioned; such settlement being by indenture intended to be made between the plaintiff William John Bankes, of the first part, the defendant, The Baroness Le Despencer, of the second *part, the Earl of Falmouth, George Bankes, Esq., and [*509] Lord James O'Bryen of the third part. The Master

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1843.-Bankes v. Le Despencer.

further reported that it had been submitted to him, on behalf of the defendants, Adelaide Stapleton, Anne Byam Stapleton, Jane Eliza Stapleton and Maria Catherine Stapleton, infants, (the daughters and only issue of Miles John Stapleton, deceased, the late Lord Le Despencer's third son,) by Lord James O'Bryen their guardian, that the draft settlement should contain clauses for the appointment of a protector or proctectors of the settlement during the lives of the respective persons who were to have life estates, pursuant to and according to the terms of the 32d section of the statute 3 & 4 Will. 4, c. 74, (for the abolition of fines and recoveries, &c. ;) and also that a term of years determinable with such lives and the expiration of 21 years from the death of the survivor of such tenants for life, should be limited, and trusts declared to effect the purposes directed with respect to the rents and profits during suspension or abeyance of the baronial dignity of Le Despencer, instead of the shifting proviso inserted in the draft indenture. But he was of opinion that, regard being had to the draft as prepared, the same was unnecessary. And it having been submitted to him, on the part of the last-named defendants, that, after the conveyance by the plaintiff, William John Bankes, as the surviving trustee of the indenture of the 8th day of August, 1826, to the trustees proposed to be appointed by the draft-deed, of all the estates comprised in the indenture of the 8th day of August, 1826, the words following, that is to say: "and all other hereditaments which are liable to the trust for settlement contained in the said lastmentioned indenture of release," ought to be inserted; and also that a clause ought to be inserted giving the Court of Chancery

power to alter, vary and explain the limitations of the [*510] proposed deed of *settlement: and such additions being

assented to by the plaintiff and by the defendant the Baroness Le Despencer, he had inserted such additions in the draft: but, such additions being objected to on the part of the defendant, Sir Francis Jarvis Stapleton, (the late Lord's youngest and only surviving son,) he was of opinion that it would be more accurate, in point of form, to omit the first of the beforementioned additions; and, with respect to the second of such additions, he was of opinion that such a clause as that proposed,

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