BARRS ጥ. FEWKES. 1865. July 5, [ 13 W. R. 987 ] [ *988 ] WOOD, V.-C., said that he should but use a cloud of words if he were to attempt to enlarge upon the rule so clearly and concisely defined in Coote v. Boyd, viz., that no extrinsic evidence could be admitted to rebut a presumption arising from the construction of words simply quâ words. Such evidence would be allowed to rebut implications and presumptions raised by the Court according to the principles of equity, but which were not consistent with the actual words of the will, e.g., presumptions that legacies were substitutional, not cumulative; that a legacy was in satisfaction of a debt; against double portions, and the like. The cases of Docksey v. Docksey, and Mallabar v. Mallabar, which seemed to raise a doubt upon this point, were decided at a time when there was a confusion of ideas as to the effect of the gift of a combined fund of real and personal estate to an executor with trusts to sell, and to apply the proceeds in such ways as would not exhaust the whole, but would leave a surplus, concerning which the will had given no directions. It had once been believed that the whole fund became personal estate, and was vested in the executor, and the Court then raised a presumption that it was inconsistent with the character of an executor that he should take the fund as a legacy, but admitted parol evidence to rebut such presumption. After Ackroyd v. Smithson (1), however, it became settled, not *as an implication of law, but as a rule of construction, that upon such a gift of real estate to a trustee on declared trusts, which did not exhaust the whole property, the residue was utterly undevised, and resulted to the heir. It could be well understood that, before this rule was settled, the doctrine was treated as a presumption, and was held capable of being rebutted by evidence in certain cases. When however the rule of construction was established, such presumption no longer arose, and extrinsic evidence became inadmissible to explain the testator's words-quâ words-as had been held in Rachfield v. Careless (2), where Powis, J., placed a construction on the words contained in a legacy to the executor, viz." that it was for his care and trouble "-and held that those words implied that the executor was not to take the residue of the property beneficially, and refused to admit any extrinsic evidence to show that the contrary was intended. His Honour therefore, declined to admit extrinsic evidence in the present case. The cause then proceeded to the hearing, but his Honour did not change the opinion he had expressed upon the point of construction in his judgment on the demurrer. SING. LESLIE. 1864. (2 H. & M. 68—88; S. C. 4 N. R. 17; 33 L. J. Ch. 549; 10 Jur. N. S. April 12, 13, 794; 10 L. T. N. S. 332.) A testator having a power to charge portions to be contingent on certain events, by a will purporting to be an execution of the power and all other powers him enabling charged certain portions. The contingent events did not happen, but the testator having been possessed of a reversion in the estate: Held that the charge operated by way of devise. Where a younger son becomes entitled to the family estates in fee simple in reversion by descent and not under the limitations of the settlement creating a charge for portions to be distributed when the reversion falls into possession, his prospective right to a portion remains good. Where an estate descends, subject to possible debts, on a person entitled to share in a portion fund charged upon it, there is a presumption against merger, because that would give priority to the persons entitled to the other portions and to the debts. UNDER the marriage settlement of Anthony, Earl of Newburgh, certain estates in the counties of Sussex and Gloucester stood limited, after the decease of Earl Anthony, to secure a jointure of 5001. per annum to Ann, Countess of Newburgh, and subject thereto and to a term to raise 5,000l., to be applied as Earl Anthony should by deed or will direct, upon trusts for the issue of the marriage, and, in default, as Earl Anthony should appoint, and for want of appointment to his right heirs. Earl Anthony died without issue in 1814, having by his will disposed of the charge of 5,000l., and devised the said estates subject thereto, and as to part, to a trust term, for debts, legacies, and annuities, as follows: To Ann, Countess of Newburgh, for life, in satisfaction of her jointure, and subject thereto and to other limitations which failed; to Francis Eyre, the elder, for life, with remainder to his eldest son, Thomas, for life, remainder to the first and other sons of Thomas in strict settlement, remainder to Francis Eyre the younger, the second son of Francis Eyre, the elder, for life, and to his first and other sons in strict settlement, with remainders in tail to future children of Francis the elder, and an ultimate remainder to the right heirs of the testator. And after giving a power to jointure, the testator declared as follows: "That it shall be lawful for every tenant for life, either before or when under the limitations hereinbefore contained, he shall respectively become entitled to the actual freehold of my said real estates in the counties of Sussex and Gloucester, and who shall have attained the age of twenty-one years, by any deed or deeds with or without power of revocation, by him respectively sealed and delivered, or by his respective last will and testament in writing so respectively signed and published, and so to be respectively attested as aforesaid, to charge all or any part of my said real estate hereinbefore devised situate in the counties of Sussex and 19. WOOD, V. C. [2 H. & M. 68] [ *69 ] SING ተ. LESLIE. [70] [ *71 ] Gloucester, with the payment of any principal sum of money not exceeding 10,000l. for the portion or portions of any child or children of his respective body other than or besides an eldest or only son, who, under the limitations herein before contained, *shall for the time being be entitled to the actual freehold of the estate so to be charged in possession, or in remainder expectant on his respective parents' decease, with interest for the same sums respectively at any rate not exceeding 5l. for every 1007. by the year, and to be an interest or interests vested in, and to be paid and payable to, such child or children, or any of them, on or at such age, day, or time, or ages, days, or times, and to be divided between or amongst them, or any of them of more than one in such shares, and to be subject to such annual and other sums of money, and with such limitations over, for the benefit of the said children, or any of them, and with such provisions for their or any of their maintenance and advancement, and subject to such conditions under such restrictions, and generally in such manner, for the benefit of such child or children, or any of them, as the person for the time being exercising the said power by any deed or deeds, instrument or instruments, in writing so to be by him sealed and delivered, or by his last will and testament, or any codicil thereto, so to be by him signed and published, and so to be respectively attested as aforesaid, shall appoint, and also to appoint all or any part of the hereditaments so to be charged, as lastly herein before is mentioned, to any person or persons for any term of years, without impeachment of waste, by way of mortgage or upon trust, to raise the money so to be charged by the usual ways and means." Provided always "that if the said Francis Eyre the elder, or any other respective tenant for life, under the limitation herein before contained of the several hereditaments hereinbefore by me respectively devised, shall at any time or times, before he respectively shall have become entitled to the actual freehold of the several hereditaments so to be respectively charged as hereinbefore is mentioned, in exercise of the powers or authorities hereinbefore respectively contained, or any of them, *limit or appoint to any woman respectively whom he respectively shall or may have married, or may or shall marry, any annual sum or yearly rent-charge by way of jointure as aforesaid, or charge the said several hereditaments, or any of them, or any part thereof respectively, with the payment of any sum of money for portions for younger children as aforesaid, then and in every such respective case, the annual sum or yearly rent-charge so to be respectively limited as aforesaid, shall not take effect upon or charge the several hereditaments so intended to be charged with the same respectively as aforesaid, nor shall the sum of money so respectively intended to be charged for portions for younger children as aforesaid be a lien or charge upon the hereditaments so intended to be charged with the payment of the same respectively, or become vested in or payable to any person or persons whomsoever, or be attended with interest, unless and until the person or persons so limiting or appointing such respective annual sum or yearly rent-charge as aforesaid, or so charging the said several hereditaments with such portions as aforesaid, or some or one of his issue, shall, under the limitations hereinbefore contained, be or become entitled to the actual freehold of the said hereditaments to be respectively charged with jointure, rent-charges, and portions, as herein before is mentioned." On the death of Earl Anthony, Francis Eyre the elder, who was his heir, succeeded to the title, and to the life interest in the Sussex and Gloucester estates, subject to the life estate of the Dowager Countess and also to the ultimate reversion in fee, subject to the limitations of Earl Anthony's will, which in the event failed. The Dowager Countess lived till August, 1861. In the meantime Earl Francis the elder died on the 23rd October, 1827, leaving a will dated the 28th August, 1826, by *which he recited the original settlement and the powers and proviso in the will of Earl Anthony, and that he (the testator, Earl Francis the elder) was tenant for life in remainder of the Sussex and Gloucester estates expectant on the decease of the Dowager Countess, and proceeded thus: "And whereas I am desirous of exercising the said powers of jointuring and charging with portions under or by virtue of the said in part recited will in manner hereinafter mentioned. Now, therefore, pursuant to and by virtue and in exercise of the power and authority to me the said Francis, Earl of Newburgh, by the said will for this purpose given, and all other powers and authorities whatsoever, enabling me in this behalf, I, the said Francis, Earl of Newburgh, do, by this my last will and testament in writing so signed and published, and intended to be attested as herein before respectively mentioned, charge all and singular the manors, capital and other messuages, lands, and other hereditaments in the said county of Sussex, devised by the said will of the said Anthony, late Earl of Newburgh, with the payment to my said wife, Dolly, Countess of Newburgh," of a jointure of 600l., to be paid and recovered as therein mentioned, and the testator proceeded as follows: "And pursuant to, and by virtue and in exercise of, the power and authority to me the said Francis, Earl of Newburgh, by the said will of the said Anthony James, Earl of Newburgh, for this purpose given as hereinbefore is mentioned, and all other powers and SING v. LESLIE. [ *72 ] SING v. LESLIE. [73] [ *74 ] authorities whatsoever enabling me in this behalf, I, the said |