1865.

ARMITAGE

υ.

COATES.

for it. It would be inconsistent to hold otherwise. But this proviso has an intelligible meaning when applied to persons living at the death of the testator.

I do not express any opinion on the point, principally argued, as to remoteness; but my strong impression is, that it would be too remote, and that this Court could never, after a life or lives in being and twenty-one years, permit any estate to be inalienable. The point, however, was new to me, and I find no decision on the subject; but the more I consider it the more I feel convinced that it would be held too remote. It would be tying up property more than a life or lives in being and twentyone years, the proviso against anticipation being clearly a fetter against alienation.

Mrs. Coates, therefore, is entitled to have the money paid over, and I will answer the special case, that this proviso in question does not apply to her share in the 8007. or in the leaseholds.

The costs are payable out of the estate, for when the testator creates the difficulty, it is one of the charges on his estate.

1865.

DR.

LORD v. JEFFKINS.

R. COCHRANE died in 1831, and his property
became the subject of a protracted litigation (a).

In 1841, Mrs. Barton, a widow, was entitled to half of a very considerable sum in Court, subject to the contingency of a Mrs. Moorhouse having a child. Mrs. Moorhouse was then of the age of about thirty-three years, she had married in 1826 and had no issue.

sum of

In August, 1841, Mrs. Barton caused a 50,000l. Consols, part of her share of the fund in Court, to be put up for sale by auction in lots, two of which lots were of 5,000l. Consols each. The highest bidding for each of these lots was 3001. each, and they were bought in.

Dec. 11, 12, 14.

In a suit to set private conaside a sale by

tract of a reversion:

Hild, that the highest price bid for it upon a previous attempt to sell

it by auction was a fair test of its market value.

As to the difficulty in ascertaining. the value of a

reversion

which is contingent on the death of a lady without issue. Whether such

"issue risks" insured against, quære. taining the market value

can now be

In ascer

of a reversion,

Afterwards, in March, 1842, Mr. Jeffkins (a stranger to Mrs. Barton) agreed to become the purchaser of a contingent reversionary sum of 5,000l. Consols (part of the money in Court) and some interest for 7501. Accordingly, by an indenture dated the 4th of March, 1842, Mrs. Barton, in consideration of 750l. paid to her by the fact of its being the subMr. Jeffkins, assigned to him 5,000l. Consols (part of ject of a the 167,8087. in Court), together with the dividends chancery suit, even though it which would accrue thereon after the expiration of does not affect twelve years from the sale or the death of Mrs. Moor- the right to it, house, whichever event should first happen.

(a) See 34 Beav. 220; 4 Drew. 366; 10 H. of L. Cas. 272.

In

must be taken into consideration.

Long delay in filing a bill to set aside the sale of a

reversion is not to be disregarded.

1865.

LORD

v.

JEFFKINS.

In June, 1842, Mrs. Barton married the Plaintiff Mr. Lord, and she died in December, 1844. The Plaintiff Mr. Lord was her legal personal representative.

On the 21st of June, 1864, Mr. Lord instituted the present suit against Jeffkins, and against Waterson and Hill (who had purchased the 5,000l. from Jeffkins), to set aside the sale of March, 1842, on the ground that it was a sale of a reversion for an inadequate consideration.

Mrs. Moorhouse died the 23rd September, 1864, without issue.

Evidence was entered into as to the value of the reversion, the effect of which is sufficiently stated post, P. 10.

Mr. Selwyn, Mr. Baggallay and Mr. W. Pearson, for the Plaintiff, cited Boothby v. Boothby (a); Baker v. Bent (b); Salter v. Bradshaw (c); St. Albyn v. Harding (d); Davies v. Cooper (e); Perfect v. Lane (ƒ).

Mr. Hobhouse and Mr. L. Mackeson, for the Defendant Jeffkins, referred to Waters v. Thorn (g); Tynte v. Hodge (h).

Mr. Jessel and Mr. William Morris for Waterson.

Mr. Southgate, Mr. F. W. E. S. Everitt and Mr. Wakeford for Hill.

1865.

The MASTER of the ROLLS.

I do not require a reply in this case, for, after reading over the evidence very carefully, I think the case of the Plaintiff fails.

In the first place, it is important to consider the nature of the suit. It was instituted on the 21st of June, 1864, to set aside the sale of a reversion which took place on the 4th March, 1842, that is to say, more than twenty-two years before. The first question to consider is, whether a fair marketable price, the utmost that could be obtained, was given for it-whether, in point of fact, the full value of the reversion was paid for it? The burthen of proof to establish that lies on the Defendant, and it is his business to prove that he has given the full market value for it; and, upon the evidence, I think that he has shewn that he has done so.

In the first place, it is very important to consider what the subject matter of the sale was; it was the sale of 5,000l. Consols, to be paid on the death of Susan Moorhouse, who was born in December, 1807, and also the dividends which should accrue due after the year 1854 (twelve years after the date of the sale), subject always to the whole being put an end to by the fact of Susan Moorhouse having a child; for if Susan Moorhouse had a child, then, at once, the accumulations were stopped and the capital went over.

It is to be observed that, among several cases which were cited to me, there is only one (that is Davis v. Cooper (a)), in which a difficulty or contingency similar

(a) 5 Myl. & Cr. 270.

to

LORD

v.

JEFFKINS.

14 Dec.

1865.

LORD

v.

to the present arose on the question of a sale of a reversionary interest. Lord Cottenham, however, got rid of it thus he says, all the parties agreed to consider the JEFFKINS. contingency as nothing, and consequently it was simply the sale of a reversion. He then considered that the fair value had not been given for the reversion. That cannot, however, be said here; for unquestionably, in this case, the risk of the birth of a child was fully in the contemplation of the parties themselves. In looking at the evidence of the actuaries and auctioneers, and taking that alone, I have found it exceedingly difficult to come to any satisfactory conclusion on the subject. It is to be observed (and it is the constant observation both of counsel and of the Court) that the evidence given for the Plaintiff and for the Defendant in these cases is always, to some extent, biassed; for, although the witnesses are perfectly respectable gentlemen, and speak exactly what they believe to be true, yet nevertheless it so happens that the persons who give evidence in favor of one side always differ much, in their estimates of the value, from those who give their evidence in favor of the other side. That probably, in a great many cases, arises from this: that the opinions of many persons may be taken, and only those used which are favorable. In this case, the difference between the actuaries is not very great; but the difficulty I have felt throughout respecting the matter has been this:-that it has been impossible to estimate what the real value of the risk was. With the exception of Mr. Morgan, there is very little difference between the persons who estimate what the value of the reversion was. Mr. Day makes it 1,750., Mr. Sprague 1,6091., Mr. Hendrick 1,680l., Mr. Pattison 1,5897., and Mr. Williams 1,708l. In fact, there is very little difference between them on this part of the subject; but there is very considerable difference in the mode in which they estimate what the risk was of the birth of a