wife for their respective lives,and, after the decease of the survivor, in trust, after the expiration of three months from such decease, for sale and investment of the proceeds, the trust fund to be held in trust for the children of the wife as to sons on attaining twenty-one, or dying under that age leaving issue, and as to daughters on attaining twenty-one or marrying. The wife died leaving three children, who attained twenty-one. One of them, a daugh ter, died leaving A., her father, her heir-at-law and next of kin. A., by his will, devised the one-third of the settled estate to which he became entitled on his daughter's death to trustees, in trust for sale and investment, and to hold the same in trust for one of his sons. And he devised and bequeathed all his residuary estate to his trustees, upon trust, after payment thereout of his debts, for another of his sons. Shortly after the date of his will the testator mortgaged his life interest in the settled estate, and also his reversionary one-third of such

In this case the question was whether, having regard to the provisions of Locke King's Act (17 & 18 Vict. c. 113) and the Amending Act (30 & 31 Vict. c. 69) certain mortgage debts were payable out of a testator's residuary estate, or were primarily charged on the mortgaged estate.

By an indenture of settlement, dated the 5th July 1831, and made between John Lewis and Elizabeth his wife, of the first part, Anthony Mist Lewis and Mary his wife, of the second part, Leonard Lywood and Lawrence Lewis of the third part, John Lywood of the fourth part, and Henry Lewis and George Lewis of the fifth part, a messuage and farm at Leckford, in the county of Hants, were settled in favour of the said Elizabeth Lewis and John Lewis for their respective lives, and after the decease of the survivor of them, to the use of the said John Lywood and Lawrence Lewis, their heirs and assigns, upon trust that they, the said John Lywood and Lawrence Lewis, or the survivor of them, or the heirs or assigns of such survivor, should at any time after the expiration of three calendar months from the death of the survivor of them the said John Lewis and Elizabeth his wife, sell the said hereditaments, and should invest the proceeds of such sale in the securities therein mentioned to be held by them or him in trust for the children of the said Elizabeth Lewis as she should in manner therein mentioned appoint, and, in default of such appointment, in trust for all her children who, being a son or sons should attain the age of twenty-one years, or die under that age leaving issue, or being a daughter or daughters should attain that age or marry. And it was by the said indenture provided and declared that if the major number of the said children who should survive the said John Lewis and Elizabeth his wife, and should have attained the age of twenty-one years, should desire that the said hereditaments should not be sold, and of such desire should give notice in writing within three calendar months after the death of. the survivor of them the said John Lewis and Elizabeth his wife, the aforesaid trust for sale should determine, and the said hereditaments

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should be held upon the same trusts and with and subject to the same powers as followed immediately after the said trusts for sale and investment of the sale moneys.

And it was by the said indenture also provided and declared that the said hereditaments should, until the same should be sold, be considered as personal estate.

Elizabeth Lewis died in Nov. 1837, without having exercised her power of appointment, and having had eight children, five of whom died under age and unmarried, and the other three of whom, namely, John Leonard Lewis, Elfrida Lewis, and Ellen Ann Lewis, attained twenty-one.

Ellen Ann Lewis died in March 1861 intestate and a spinster, and leaving her father John Lewis her heir-at-law and sole next of kin.

John Lewis by his will, dated the 11th Dec. 1862, after appointing the plaintiffs Anthony Lewis and Joseph Dowling his executors, and bequeathing certain pecuniary and specific legacies, proceeded as follows:

I give, devise, and bequeath unto the said Anthony Lewis and Joseph Dowling, all that one undivided third part or share in an estate known as the Leckford estate, situate at Leckford or elsewhere in the county of Hants, or in the funds arising from the sale thereof, which I inherited or became entitled to on the death of my daughter Ellen Ann, To hold the same unto the said Anthony Lewis and Joseph Dowling, their heirs, executors, administrators, and assigns, according to the nature and quality thereof, upon trust, if the said one-third part or share is not sold in due time after my decease with the entirety of the said estates under the existing trusts for the sale thereof, that they the said Anthony Lewis and Joseph Dowling, and the survivor of them, and the heirs, executors, or administrators of such survivor, their or his assigns (hereinafter called my trustees) do and shall, when and as they in their absolute discretion shall think fit, sell and absolutely dispose of the said undivided third part of the Leckford estate.

And after giving certain discretionary powers to his trustees with reference to the mode of sale of the said undivided third share, and giving an option to his son John Leonard Lewis to purchase the said third share at the sum of 6000l., to be secured by mortgage (but of which option the said John Leonard declined to avail himself), the testator directed that the clear proceeds of the sale of the said undivided third part should be invested in manner therein mentioned, and that out of such investment an annuity of 60l. should be paid to Sarah Cole (therein described as the mother of the tes tator's son, Albert Frederick Lewis), during her life. And subject to the payment of the said annuity, the testator directed that his trustees should stand possessed of the said trust moneys, stocks, funds, and securities upon trust for the said Albert Frederick Lewis absolutely, but in case of his death under the age of twenty-one years, upon trust for his (the testator's) son, John Leonard Lewis, and his the testator's daughter, Elfreda, as tenants in common. And after giving directions for the maintenance and education of the said Albert Frederick Lewis during his minority, the testator disposed of his residuary estate as follows:

And as to all the rest, residue and remainder of my estate and effects whatsoever and wheresoever situate, including securities for money, I give, devise, and bequeath the same to my said trustees to hold the same, to them, their heirs, executors, administrators, and assigns, according to the natures and qualities thereof respectively upon trust, after payment thereout of all my just debts, funeral, and testamentary expenses, and

V.C. M.

cumstances the father made his will. At that time he could not be certain in what state the property would be enjoyed, because, if he and his other two children had concurred in retaining the property in specie, it would have been freehold estate. This will was dated in 1862, and in the following year the testator mortgaged his third part of the estate. In 1867 he created a second mortgage, and died in 1870. Now the question was, whether Albert Frederick Lewis took his one-third share of the estate charged with the burden of the mortgage debt, or whether he was entitled to have the burden discharged out of the general personal estate. Now it was quite true that this was an interest in land, and the devisee must take it subject to the burdens imposed by the testator, unless he had shown a contrary intention; and it was contended that he had done so by directing all his debts to be paid out of the residue of the estate. It was admitted that those words were, before the Act amending Locke King's Act, sufficient to indicate a contrary intention, and that in that case the mortgage debt would have had to be paid out of that fund. The first question was whether that was an interest in land within the meaning of Locke King's Act. If it was not, then the general law applied, and it was a mere bequest of a chattel subject to a charge, and the general personal estate must redeem the pledge or pay off the charge upon it. If this was not an interest in land, and only a chattel, it was unnecessary to consider the matter any further. But was it an interest in land within the meaning of the Act? It was no doubt an interest in land, because it was a share in the produce of the estate, and no one could deny that that was an interest in land, and there was no doubt that it would be so within the Mortmain Act. But it did not follow that it was so within the meaning of Locke King's Act. Suppose that, instead of being an aliquot part of a sum of money, it was a specified sum-say 100071.-to be paid out of the produce of the land; that would have been an interest in land, but yet it would not have been so within the meaning of the Act, for it would have been a pure chattel, and would fall within the rule in Knight v. Davis (sup.), which said that, where a specific chattel was charged or pledged by the testator, the specific legatee was entitled to have the charge paid off out of the general assets of the testator. Mr. Glasse had suggested that the father might have filed a bill for partition, this being an estate, or interest in land; but, if so, such a bill must have been dismissed, because the property could only be reconverted by consent of all parties, the general rule being that, where an estate was once converted, the concurrence of all the parties was required to effect a reconversion. His view of Locke King's Act was, that where an interest in land was given by a testator with the option of retaining it in specie, or of having it converted, the person claiming to take without conversion must take it subject to the burden—that is, that in such a case, and where there was merely a general direction for payment of debts, there was no contrary intention shown as required by the Act, and he thought that the person taking the estate under the will would in such a case be obliged to take the estate subject to the burden, but then he must take it as land. Now here he took it as money, not as land; therefore, when the Act said that the heir or devisee to whom

[V.C. B.

the "lands or hereditaments" should descend or be devised should take subject to the mortgage debt, he interpreted it as contemplating the taking of land as land. Here it was taken merely as personal estate, and though it was an interest in land in a certain sense, it was not an interest in land within the meaning of the Act, His opinion, therefore, was that this aliquot part of the proceeds of an estate was not an interest in land within the meaning of the Act. The other question raised was this. The testator had directed that his debts generally should be paid out of his residuary estate, and it had been argued that he had not, in so doing, shown an intention that the mortgage debts should be paid out of his personal estate exclusively. If it had been an interest in land within the meaning of the principal Act, he must have held that there was an absence of intention on the part of the testator within the meaning of that Act and the Amending Act to exonerate the mortgaged estate from the mortgage debts, and he should have agreed with Mr. Glasse in that part of the argument. All he now decided was that it was not an interest in land within the meaning of the Act. It was a mortgage of a chattel, and the general personal estate must exonerate the mortgaged estate. There must, therefore, be a declaration that the one-third was not an interest in land within the meaning of Locke King's Act, and that the mortgage debts were not payable thereout, but out of the residuary personal estate. The costs of all parties to be paid out of the residuary personal estate.

Solicitors: Prior, Bigg, and Church, for Adams, Alresford; Brown and Waters.

V.C. BACON'S COURT. Reported by the Hon. ROBERT BUTLER and T. H. CARSON, Esq., Barristers-at-Law.

Wednesday, Nov. 8. HEYMAN v. DUBOIS.

Principal and surety-Consolidation of mortgages— Marshalling securities.

In 1863, A. effected a policy of assurance on his own life for 2000l., which he mortgaged to the assur ance company to secure 1000l., and shortly afterward he effected a second policy for 1000l., which he mortgaged to the company to secure 5001. In 1865 he again mortgaged the first mentioned policy (together with a further policy which was afterwards forfeited) to the company to secure 1500l., and B. became his surety for the repayment of the last mentioned advance.

In 1865, 4. became bankrupt, and the company recovered judgment for 1500l. and costs, in an action against the surety B. B. had paid 1000l. under this judgment, and A.'s wife had paid to B. 4507. out of her separate estate to reimburse him for his loss. In 1867 A. died; and in a suit instituted by B. against the company and A's assignee to recover out of the balance due to A.'s assignee in respect of the two subsisting policies the amount which B. had paid as surety:

Held, that B. was entitled to have the securities marshalled, and to be paid the whole amount of his loss by the company, before anything was paid to A.'s assignee in respect of either policy; and further that the payment made by A.'s wife out of

her separate estate did not affect B.'s rights as against A.'s assignee. THIS was a suit instituted by the plaintiff Heyman as surety for a debt incurred by a policy holder to an assurance company, which was secured by a mortgage to the company of certain policies effected with them. The object of the suit was to recover out of the balance of policies paid into court after the death of the policy holder the amount which the plaintiff had been compelled to pay in an action brought against him by the company.

On the 19th Feb. 1863, James Edward Tyrie effected a policy on his own life (numbered 9322) with the Sovereign Life Assurance Company for 20001.; and on the 21st Feb. he mortgaged the policy to the company to secure an advance of 10007.

a

On the 10th Oct., 1863, Tyrie effected second policy on his own life (numbered 9695) with the same company for 1000l., and on the 12th Oct. he mortgaged this policy to the company to secure an advance of 5007.

On the 14th Jan. 1865, Tyrie effected a third policy on his own life (numbered 10,688) with the same company for 10007., and on the 16th Jan. 1865, he mortgaged the first and the last mentioned policies to the company to secure an advance of 15001. In this last mortgage Heyman, and one Boyle, became sureties for Tyrie, to secure repayment of the sum advanced.

In July 1865 Tyrie became bankrupt, and Dubois was appointed his assignee. Shortly afterwards, Boyle, one of the sureties, became bankrupt. Nothing was paid out of the estates of either towards discharge of the debt secured by the mortgage of the 16th Jan. 1865.

In Sept. 1865 the company brought an action against Heyman, the other surety, and recovered judgment against him for 1500l. and costs. Heyman paid the company two sums of 5001. each, in respect of the amount due from him under the judgment.

The policy on Tyrie's life, numbered 10,688, became forfeited, on account of the premium not having been paid; and the policy numbered 9322, was also forfeited, but was reinstated upon payment by the plaintiff of the premium and interest. In Sept. 1867 Tyrie died, and accordingly in March 1868 two sums of 2000l. and 1000l. became due from the company in respect of the policies numbered 9322 and 9695, subject to repayment of the advances made by the company.

Heyman filed his bill against Tyrie's assignee and the company to establish a charge on the balance due from the company in respect of both these policies, to the extent of the amount which he had paid as surety. The bill alleged that it was apprehended that the balance due in respect of the policy numbered 9322 would not alone be sufficient to satisfy the charge claimed by the plaintiff. In that case the plaintiff claimed to be entitled as against Tyrie's assignees to have the moneys payable in respect of both policies marshalled, so as to give him the benefit of the balance which would remain in respect of the policy numbered 9695, after satisfaction of the company's security thereon.

Allowing for the payments made by Heyman on account of the judgment the company claimed 12051. as still due to them in respect of the mortgages of 21st Feb. 1863, and 16th Jan. 1865, to both of which the policy for 2000l., numbered 9322, was

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subject. In respect of the mortgage of the 12th Oct. 1863, to which the policy for 1000l., numbered 9695 was subject, the company claimed 4241. as still due to them. They accordingly paid two sums of 7951. and 5661., making a total of 13617. into court in respect of both policies.

It appeared that 4501. had been paid to Heyman by Tyrie's wife, out of her separate estate, to reimburse him for the loss he had suffered on account of her husband.

Kay, Q. C. and Westlake for the plaintiff.-We contend that as against Tyrie's assignee the company have, as creditors, a right to consolidate these securities and retain their debt out of either policy. But a surety who pays off a debt for which he is answerable, is entitled to all the equities which the creditor could have enforced, and that, not merely as against the principal debtor, but also as against all persons claiming under him.

Drew v. Lockett, 32 Beav. 499;

Newton v. Chorlton, 10 Hare, 646;

19 & 20 Vict. c. 97, s. 5; Wright v. Morley, 11 Ves. 22. The payment by Tyrie's wife out of her separate estate is a payment by a stranger, and cannot affect the plaintiff's rights.

Walter v. James, L. Rep. 6 Ex. 124.

Amphlett, Q. C. and Simmonds for Tyrie's assignee. The plaintiff, as surety, has no right to the benefit of any security except those given to secure the debt for which he became surety.

Wade v. Coope, 2 Sim. 155;

Crickmore v. Freestone, W. N. 1870, p. 232;

South v. Bloxam, 2 H. & M. 457; 12 L. T. Rep. N. S. 204;

Lampleigh v. Brathwait, 1 Sm. L. C. 149, 6th edit. The plaintiff has been paid 4501. on account of the loss which he has sustained as surety, and to that extent the policies are set free from his claim.

Everitt, for the Sovereign Life Assurance Company.

Kay was not called on to reply.

The VICE-CHANCELLOR held that the payment by Mrs. Tyrie to the plaintiff out of her separate estate was just the same as a payment by an entire stranger under no liability whatever, and that such payment did not in any way affect the plaintiff's legal rights against the policy moneys. He further held that the plaintiff was entitled to have the securities marshalled, and to be paid the whole of his claim out of the moneys due in respect of both policies. He accordingly made a decree that out of the sum in court the plaintiff should be paid principal, interest, and costs (including the costs of the action), the company should be paid their costs of suit, and the residue should be paid to Tyrie's assignee.

Solicitors: Elmslie, Forsyth, and Sedgwick; Davies, Son, Campbell, and Reeves; Dubois.

Wednesday, Nov. 15. SMITH V. GIBSON.

Construction of will-Precatory trust-Special casc -Future rights.

The court will not, on a special case, make any declaration of future rights.

A testator gave, devised, and bequeathed all his real and personal estate and effects whatsoever "unto and to the absolute use of my dear wife H. S., her heirs, executors, administrators, and assigns, in full confidence that she will do what is right as to

the absolute disposal thereof between my children, either in her lifetime or by her will after her decease."

The construction of this gift was submitted to the court by all the beneficiaries, and a declaration was asked as to the respective rights of the testator's widow and children. The widow was in possession of the property which formed the subject of the gift, and all the children were sui juris. The court, under the above circumstances, refused to make any further declaration than that the widow was lawfully in possession; and made no order as to costs.

GEORGE SMITH made his will, dated the 20th Feb. 1861, which (so far as material) was as follows:

I give, devise, and bequeath all my real and personal estate and effects whatsoever and wheresoever unto and to the absolute use of my dear wife Harriett Smith, her heirs, executors, administrators, and assigns, in full confidence that she will do what is right as to the absolute disposal thereof between my children either in her lifetime or by her will after her decease," and the testator appointed his sons G. H. Smith and S. S. Smith his executors.

The testator died on the 20th Feb. 1861, leaving his wife Harriett Smith and six children surviving.

The widow entered into possession of the testator's property, and from time to time made advances to some of the children. Difficulties, however, arose, and all the parties being now sui juris, concurred in stating a special case for the opinion of the Court of Chancery.

The questions were-First, whether Harriett Smith under the testator's will took an absolute or other and what beneficial estate and interest in, or any and what power of disposal over the real and personal estate and effects of the testator; secondly, whether the testator's children took any and what beneficial estate and interest in his real and personal estate and effects, as cestui que trusts under his will; thirdly, how the costs were to be provided.

Kay, Q. C. and J. T. Humphry for the widow contended that no trust had been created for the children. They referred to

Webb v. Wools, 2 Sim. N. S. 267;
Green v. Marsden, 1 Drew. 646;
Crockett v. Crockett, 2 Phil. 553;
Fox v. Fox, 27 Beav. 301;

Williams v. Williams, 1 Sim. N. S. 358;
Palmer v. Simmonds, 2 Drew. 221.

Amphlett, Q. C. and Busk for some of the testator's children, referred to

Wace v. Mallard, 21 L. J. 355, Ch. ;
Gully v. Cregoe, 24 Beav. 185;

Wright v. Atkyns, (quoted by Turner L. J. in Lady
Langdale v. Briggs, 8 D. M. & G. 420; 26 L. T. Rep.
306.)

W. C. Harvey for other children of the testator. The VICE-CHANCELLOR at the conclusion of the argument said he thought that the decision of the House of Lords in Wright v. Atkyns precluded him from making any declaration as to the rights of the parties at the present time.

Kay said that all the parties interested were sui juris, and had concurred in stating this special case, in order to have their rights ascertained by the decision of the court. That decision would be binding on them under the Act 13 & 14 Vict. c. 35. To decide the extent of the interest vested in the widow who was at present in possession of the property, would not be to decide future rights.

[V.C. W.

He referred to Shovelton v. Shovelton (32 Beav. 143); where a declaration was made as to the extent of a widow's interest.

The VICE-CHANCELLOR said that he would make no order as to anybody's rights until the parties came before him and stated questions which he was competent to answer. The widow was in possession of the property, and for the present he could not decide more than that no one was entitled to interfere with her posession. All the parties were sui juris, and if they wished to dispose of the property at once, could concur in doing so. Many events might occur during the widow's lifetime which he could not foresee; and on the authority of the House of Lords in Wright v. Atkyns, he must decline to answer any of the questions. Difficulties which might arise as to the respective rights of the parties in the future must be decided when the proper time came for doing So. He could make no order as to costs. Solicitors: Browne and Williams; Algeron, Wells and Sykes.

V.C. WICKENS' COURT.

Reported by EDWARD WINSLOW, Esq., Barrister-at-Law.

Nov. 6, 7, and 10. SYKES v. SYKES.

Will-Estates tail-Charge-Term-Trusts for issue -Remoteness--Demurrer.

The trusts of a term limited previous to an estate tail, and operative subsequently, are invalid as tending to a perpetuity.

Where, therefore, a testator devised certain estates to his eldest son R. for life with remainder to the eldest son of R., with remainder to trustees for a term of 500 years upon the trusts thereinafter expressed concerning the same, and from and after the end or sooner determination of the said term, and in the mean time subject to the trusts thereof to the first and other sons successively of the said R., the grandson of the testator, in tail male, with remainders to the second and other sons successively of the said R., the son of the testator, in tail male, with remainder to the testator's son N. for life, with remainders to the first and other sons successively of the said N., in tail male, with remainder over, and declared the trusts of the said term to be that in case any one or more of his younger sons or their respective issue should become seised in possession by virtue of the limitations aforesaid of the said hereditaments, the trustees should raise a sun of 50001., and pay the same to such of the testator's sons (except such son as should be seised in possession) as should be then living, or their issue if dead:

Held, upon a demurrer to a bill filed by persons inte rested in the above charge, against the great grandson of N., who had become seised in possession under the above limitation, and praying that the trusts of the term might be carried into execution, that the charge was void for remoteness. Case v. Drosier, 2 Keen, 764; on appeal, 5 Myl. § Cr. 246, followed. THIS was a demurrer. bill were as follows:

The facts as stated by the

Joseph Sykes by his will, dated 4th June 1803, devised to his son, Richard Sykes, and his assigns, certain estates (hereafter called the settled estates), to hold the same to the use of the said