CHAN. DIV.]

having arisen as to whether the Crown had not lost their right to recover the same, the court had sanctioned an arrangement which in effect was a compromise of the claim of the Crown, and an order was made for payment to the Crown out of moneys in court of the sum of 2000l., without prejudice to the question how the debt should ultimately be borne. The sum of 2000l. was accordingly paid.

The testator died in the year 1891, leaving assets amounting to about 114,000l. His gross liabilities exceeded the sum of 274,000l., including specialty debts amounting to 17,9801., the Crown debt of 37331., and other simple contract debts amounting to 253,000l. A dividend of 78. 6d. in the £ had already been declared, and it was anticipated that a further dividend would shortly be declared.

The arguments of counsel were based on the assumption that the Crown debt was payable in full, and the question was, whether such debt should be borne by the fund applicable for payment of the simple contract creditors alone on the one hand, or by the whole fund rateably, without distinction between the specialty and simple contract creditors, on the other hand.

66

[The question as to whether the Crown debt, being a sum due from the testator as personal representative of another estate, was due in respect of a debt from the testator's own estate, was discussed; further questions as to whether the unpaid probate duty, payable under 55 Geo. 3, c. 184, was a debt" from the executors to the Crown, and as to whether the Customs and Inland Revenue Act 1881, sect. 40, had a retrospective operation, as well as the question how far the Intestates Estate Act 1884, sect. 3, afforded a defence to the claim of the Crown, were raised, but the court expressed no definite opinion in respect of such questions.]

The

Graham Hastings, Q.C. and J. D. Davenport for the specialty creditors.-Prior to Hinde Palmer's Act 1869 the specialty creditors would first be paid, then the Crown simple contract debt, and lastly the simple contract creditors. In this case it is important to notice that there are sufficient assets to pay the specialty creditors in full, and the Crown debt in full, and to leave a balance for division among the simple contract creditors. Now the Act simply provides that, as between the specialty and simple contract creditors, the former are to lose their priority, but the Crown is not affected by the statute. consequence is that, strictly speaking, in the first instance a dividend is declared in which specialty and simple contract creditors (including the Crown) participate, and a fund is set apart to answer the former on the one hand and the latter on the other hand; but the Crown claims to be paid in full, and the balance due on the Crown debt must be made good out of the fund available for the simple contract creditors. That is the proper mode of distribution, the provisions of the Act are thus complied with, the rights of the Crown preserved, and the assets as between the specialty and simple contract creditors are divided equally. An analogy may be found in the case of retainer by an executor of his debt. They referred to

Wilson v. Coxwell, 23 Ch. Div. 764;

Re Jones; Calver v. Laxton, 51 L. T. Rep. 855; 31 Ch. Div. 440.

The right of retainer is analogous to the Crown

[CHAN. DIV.

debt. An executor can only retain as against creditors in the same degree as himself. The statute only abolishes the priority of payment of specialty over simple contract creditors, in all other respects the rights of specialty creditors remain. They also cited

Re Briggs; Earp v. Briggs, (1894) W. N. 162;
Re Henley and Co., 39 L. T. Rep. 53; 9 Ch. Div.
469.

Buckley, Q.C. and Methold for the simple contract creditors.-The Act was intended to bring the specialty creditors down to the level of simple contract creditors for all purposes, and they should bear their share of the Crown debt pari passu; if it is otherwise, the figures will show that the specialty creditors, whenever there is a simple contract Crown debt, will gain a considerable priority over the simple contract creditors other than the Crown. We assume that the Crown must be paid in full, but the analogy of an executor's retainer in the cases cited is not applicable. An executor retains his debt, because the hand to pay and the hand to receive payment is the same. There is no "payment" in the case of retainer. The case of Re Williams; Williams v. Williams (28 L. T. Rep. 17; L. Rep. 15 Eq. 270) is in our favour. That is a case of a judgment creditor, and has never been questioned; though Kay, J. endeavours to distinguish it in

Re Jones; Calver v. Laxton (ubi sup.).

The Act says in effect that for the purpose of distribution the fact that a creditor is a specialty creditor must be ignored.

Cunliffe, for the executors of the testator, took no part in the argument.

Hastings, Q.C. in reply.-In the old cases retainer is spoken of as "payment "-e.g., in cases of retainer out of money in court which is assumed to be in court without prejudice to the executors' right of retainer. Cur, adv. vult.

March 17.-STIRLING, J. (after stating the facts) continued:-The Crown was, before the Act 32 & 33 Vict. c. 46, entitled to be paid the debt of 20007. after all specialty debts but before any simple contract debts. It is admitted that this right has not been affected by the statute, and, the assets being sufficient for payment of the Crown debt in full after satisfying all specialty debts, the Crown debt has been paid in full accordingly. The question is, How is this payment to be borne as between the specialty and simple contract creditors, regard being had to the provisions of the statute? The precise point has not as yet arisen for determination, but decisions have been given in two classes of cases, each of which bears a resemblance to the present. The first was that of a simple contract creditor, who, after the death of the debtor, recovered judgment against his legal personal representative. By so doing, the creditor did not before the Act place himself in the position of a judgment creditor of the testator, and he gained no priority as against specialty creditors; but it was held that he was entitled, as a reward of his diligence, to be paid in priority to simple contract creditors who had not obtained judgment: (see Ashby v. Pocock, 3 Atk. 208; Dollond v. Johnson, 2 Sm. & G. 301). In Re Williams; Williams v. Williams (ubi sup.) the question arose as to how

CHAN. DIV.]

the position of such a judgment creditor was affected by the Act of 1869, and it was held by Wickens, V.C. that he was entitled to be paid in priority to both specialty and simple contract creditors. The Vice-Chancellor says: "It seems to me that the case of Jennings v. Rigby (33 Beav. 198) is an authority conclusive upon me, and binds me to hold that in the year 1863 an unregistered judgment against an executor had priority in the administration of assets over the debts of all other creditors having debts of equal rank with that for which judgment was recovered. But it has been argued that the law bas been altered by the statute 32 & 33 Vict. c. 46, and it has been pointed out that if that is not so, a judgment against an executor for a simple contract debt will obtain indirectly priority over specialty debts. That may be an unexpected and unintended consequence of the statute, but it appears to me to be an unavoidable one. The distinction between specialty and simple contract debts is abolished. It was abolished and did not exist when the intestate in this case died; but I can find nothing in the statute to take away that reward for diligence which a creditor is supposed to earn by being first to take proceedings, after the death of the debtor, against the executor, which gives him priority, if his proceedings ripen into a judgment, over all creditors of equal degree, even if they obtain judgment the next day; in other words, I do not think the legal effect of the proceedings taken after the intestate's death by his creditor was intended to be nullified or altered by the statute, which simply, and for certain purposes, and to a certain extent, made the mode in which the debt was contracted by the intestate immaterial. This judgment creditor must be paid in full in priority." Now, it is to be observed that the Vice-Chancellor recognises that the effect of the statute was to "simply, and for certain purposes, and to a certain extent, make the mode in which the debt was contracted" immaterial; but it appears to be an inference from the language he uses that he did not consider that those purposes precluded a simple contract creditor who has obtained judgment from obtaining priority over the specialty creditors. That case, so far as I know, stands alone in the reports. The other class of cases relates to the right of retainer on the part of a legal personal representative, in respect of a debt due to him from the deceased; a right which can only be exercised in preference to creditors of equal degree. With reference to this right, it has been decided in three cases, viz., Wilson v. Coxwell (ubi sup.); Re Jones; Calver v. Laxton (ubi sup.); and Re Briggs; Earp v. Briggs (ubi sup.), that the assets must in the first place be divided rateably between specialty and simple contract creditors, and that effect is to be given to the right of retainer in respect of the simple contract debt due to the legal personal representative only out of the portion coming to the simple contract creditors. The grounds for the decision are thus stated by Kay, L.J. at p. 446, in Re Jones; Calver v. Laxton (ubi sup.): At first sight the decision in Re Williams; Williams v. Williams (ubi sup.) seems to be analogous to the present case, but upon examination there is a considerable distinction. The judgment creditor was no longer a simple contract creditor, but had obtained a higher rank than simple contract creditors in the distribution of assets, and the

66

[CHAN. DIV.

effect of placing specialty creditors for the pur pose of distribution on the same level was necessarily to put them after the judgment creditors. But here the executrix, who desires to retain, is only a simple contract creditor, and the law that she cannot retain against specialty creditors remains, unless the statute must be read that for this purpose, among others, the specialty creditors are of equal degree with the simple contract creditors. The object of the statute was only to take away the priority of a specialty creditor over simple contract creditors, not to give any of them priority over him. Equality between them in case of distribution is the declared purpose." Then a little later he says, at p. 447: "I do not think that a statute, the object of which is to effect equality of distribution, should be construed to give incidentally the power to defeat specialty as well as simple contract creditors." I understand the case of Re Williams; Williams v. Williams (ubi sup.) to be there distinguished, because after the death of the testator the creditor had recovered judgment, and had thus attained a higher rank than he had at the time of the death. It is also distinctly laid down that the object of the Act of 1869 is "only to take away the priority of a specialty creditor over simple contract creditors, not to give any of them priority over him." I am not sure that Wickens, V.C. took the same view. In that state of the authorities I have to say which of them ought to govern the present case, and in my judgment I ought to follow those which relate to the right of retainer. In the first place, the creditor now in question has obtained no judgment, and nothing has happened to affect the rank of the debt as it stood at the testator's death, and the position of the Crown resembles more nearly that of an executor seeking to retain his debt, than that of a simple contract creditor who has recovered judgment against the legal personal representative. In the second place, if there be any difference in the views entertained by different judges as to the object of the Act, that expressed by Kay, J. appears to be that which in itself is preferable, and also that which is supported by the greater weight of authority.

Re HAWKER'S SETTLED ESTATES; DUFF v. HAWKER. (a)

Settled land-Repairs-Farms-Salvage-Capital

money-Jurisdiction-Settled Land Act 1882 (45 & 46 Vict. c. 38), s. 25-Settled Land Act 1890 (53 & 54 Vict. c. 69), s. 13, ss. 2.

The court has jurisdiction, independently of the Settled Land Acts, with the concurrence of the tenant in tail in remainder, to sanction the expenditure of capital money on repairs to farmhouses on the estate of an infant tenant in tail in possession, where such expenditure is in the nature of salvage; the inherent power of the court to sanction such expenditure is not, in the absence of special words to that effect, taken away by the Settled Land Acts.

(a) Reported by FRANCIS E. ADY, Esq., Barrister-at-Law.

CHAN. DIV.]

SUMMONS by James Duff and James Sidney | Tillyer Blunt, trustees of the above-mentioned settlement, for the purposes of the Settled Land Acts 1882 to 1890, for the determination of the following questions:

:

1. Whether the applicants as trustees of the above-mentioned settlement for the purposes of the Settled Land Acts should apply the capital moneys in their hands or under their control, consisting of a sum of 24421. 38. Consols, or any part thereof, in or towards the following purposes, or any or which of them. (a) In carrying out (so far as the same have not yet been carried out) the works on the abovementioned Spitalfields estate necessary to comply with the requirements made by the Board of Works for the Whitechapel District in certain notices. (b) In carrying out on the abovementioned Spitalfields estate certain other works and improvements enumerated in a specification and report of E. E. White, surveyor, and thereby recommended by him to be done. (c) In carrying out on the above-mentioned Longparish and Bullington estate the works and improvements specified in a report of Messrs. Rawlence and Squarey of Salisbury, land agents and surveyors, dated the 14th Sept. 1896, and thereby recommended by them to be done. (d) In repaying to the executors of the late Peter James Duff Hawker the sum of 60l. 12s. 6d. expended by him. on the Spitalfields estate in compliance with the said notices of the said Board of Works for the Whitechapel district, and also the amount of the surveyor's fees and other expenses incurred by the said Peter James Duff Hawker in relation to the said expenditure.

2. Whether the applicants should apply the residue of the said capital moneys, or so much as may be necessary for the purpose, in payment of the estate duty, which became payable in respect of the said settled estates upon the death of the said Peter James Duff Hawker, or how the amount of the said duty should be raised.

The defendant was Peter Thomas Ryves Hawker, the tenant in tail in possession, an infant, who appeared by his mother as guardian ad litem.

The remainderman, to save expense, was not added as a defendant, but her concurrence could be obtained.

Under the will of Peter Hawker, dated the 21st Nov. 1843, the above-mentioned estates and property stood limited to uses, under which the defendant Peter Thomas Ryves Hawker was beneficially entitled in possession as tenant in tail.

Peter Hawker died on the 7th Aug. 1853, and was succeeded in the possession of the settled estates as tenant for life thereof by his son Peter William Lanoe Hawker, who, by his will dated the 26th Aug. 1853, charged the settled estates with a jointure rent-charge of 300l. per annum in favour of his widow (now Mrs. Fennell), and with 5000l. for his younger children.

Peter William Lanoe Hawker died on the 26th April 1857, leaving an only son, Peter James Duff Hawker, and two daughters, all infants.

Peter James Duff Hawker then became tenant for life of the settled estates without impeachment of waste.

Peter James Duff Hawker died on the 23rd March 1896, leaving a widow and four infant

[CHAN. DIV.

children, one of whom, namely, the defendant Peter Thomas Ryves Hawker, who was born on the 3rd Oct. 1889, then became tenant in tail in possession of the settled estates.

Peter James Duff Hawker had charged the estates with 3001. a year for his widow and 50007. for his younger children.

The applicants, the trustees of the settlement of the 21st Nov. 1843, for the purposes of the Settled Land Act, had in their hands capital money consisting of a sum of 24421. 3s. consols, upon trust for re-investment in land, to be settled in the same manner as the settled estates.

The application was originally made in chambers, and Kekewich, J., after deciding certain questions, directed the master to inquire what repairs fell within the Settled Land Acts.

The master stated that a sum of 6521. might be properly applied in repairs on the Spitalfields estate and 8001. on the Hampshire estate.

A further sum of 800l. was recommended by the surveyors to be spent in repairs on the Hampshire estate, as being a necessary expenditure to keep the property let. This 8007. was to be expended on objects admittedly other than those within the Settled Land Acts, and the question was whether the judge had power to sanction such expenditure.

S. Dickinson for the summons.-The question is whether your Lordship has jurisdiction to sanction the further expenditure of 8001. on repairs, which are not authorised by the Settled Land Acts. I submit that the court has jurisdiction where the expenditure would be beneficial to the infant.

T. Arnold Herbert for the respondent.-Even if the court has jurisdiction, this is not a case for its exercise. There is no case where capital money may be expended on repairs, except either the case of salvage, or where the infant is residing in person.

S. Dickinson replied.

KEKEWICH, J.-The case was adjourned into court in order to have argument on the difficult question of the jurisdiction of the court, its extent and limits. It was said in chambers on behalf of the plaintiffs that the case was governed by my decision in Conway v. Fenton (59 L. T. Rep. 928; 40 Ch. Div. 512) of which I was not satisfied, and on the other hand that it was governed by the decision of Chitty, J. in Re De Teissier's Settled Estates (68 L. T. Rep. 275; (1893) 1 Ch. 153) of which also I was not satisfied. What I have here is an infant tenant in tail in possession-no contingency-but actually tenant in tail now, though he cannot enjoy the estate until he has attained the age of twenty-one years, and in the meantime the trustees have powers of management; nevertheless he is tenant in tail with several remainders over. I am told that I can have the presence and concurrence of the next tenant in tail in remainder, a lady of mature age. On the application being made in chambers, I decided certain questions; for instance, as to the money for works required by the sanitary authority, I had no doubt; and as to repayment to the estate of a deceased tenant for life of money expended by him, I absolutely declined to allow it. Putting these aside, there remains only the question of repairs in a general sense, of large repairs to two properties, one an agricultural property in Hampshire, and the other

CHAN. DIV.]

an urban property in Spitalfields. I at once considered it proper without any concurrence of the tenant in tail in remainder to direct the application of a competent part of the moneys to any improvement which fell within the Settled Land Acts. I directed the master to go into the matter and find out what repairs fell within the Acts. The result was that he informed me as regards the Spitalfields estate a sum of 6521., and as regards the Longparish and Bullington estate a sum of 8001. might be properly applied, making in all a sum of 14521. out of the 24421. 3s. consols in the hands of the trustees. Then the evidence suggested that in addition to that expenditure it was necessary to spend the large sum of 8007. more in repairs strictly so called (not permanent improvements), on farm houses and buildings, repairs which avowedly did not fall within the provisions of the Settled Land Acts, not even within the 2nd sub-section of sect. 13 of the Settled Land Act 1890. That section applies only to additions or alterations necessary or proper to enable the property to be let, and what is proposed does not fall within that description. It was then suggested having regard to the limitations of the settlement, I had liberty to direct the money to be expended under the general jurisdiction of the court outside the Settled Land Acts, according to the decision in Conway v. Fenton. That was a very peculiar case, and I pointed out that if the trustees were to make the repairs at their own risk, and could afterwards prove that what had been done had really preserved the property, the court would certainly have jurisdiction to say in an infants' suit that it was for the benefit of the infants that the property should be taken as improved, and that the trustees would not be made liable, and I lent to the conclusion that the court might do by anticipation what it could do afterwards. That case was quite different to this one. I had there no intention of deciding, and did not decide, any such question as arises here. The decision in Conway v. Fenton was an application or extension of the decision of James, L.J. in Vyse v. Foster (27 L. T. Rep. 774; 8 Ch. App. 309). There there was money, though not capital money, arising under the Settled Land Acts, settled on the same trusts, and I thought that might properly be applied for that purpose. All the proper parties were before the court. That case does not affect this case, nor do the other cases cited, but the summary of cases cited by Mr. Kenyon Parker in Re Jackson; Jackson v. Talbot (21 Ch. Div. 786) is useful here. Here the repairs are outside the Settled Land Acts, and what I am asked to do is to sanction these repairs on the general jurisdiction of the court. My present impression is that, if I was satisfied that the repairs were necessary and for the benefit of the infant, then with the concurrence of the tenant in tail in remainder I might sanction this expenditure; that is, I might assent to an application of money which would not be strictly right unless the infant, or rather the court on his behalf, could give the consent. I am not at present of a decided opinion, because I do not see my way on the evidence to doing what I am asked in the present case, but still that is my impression. It is said that my power has been taken away by the Settled Land Acts, an argument with which I do not agree, and to which I do not accede. Nothing but special

[CHAN. DIV.

words in the Acts can take away the inherent jurisdiction of the court. There is nothing in the Acts to say that its own jurisdiction should not remain in the court, and I will not infer it. It is said that the words of the Settled Land Act 1882, s. 21, are imperative. Capital money arising under the Act" shall, when received, be invested in or otherwise applied wholly in one or partly in one and partly in another or, others of the following modes (namely)" Those words are quite capable of being taken to mean, shall be applied under the authority of this Act, or even as meaning may be applied under the Act. I do not think that takes away the inherent jurisdiction of the court whatever it may have been. Then I come to the decision of Chitty, J. in De Teissier's Settled Estates. I will not comment on his decision or conclusions, and I have no doubt they are right; but I express entire concurrence with his opinion of the operation of the Settled Land Acts, summed up in the last paragraph of the head note on page 153 of (1893) 1 Ch. He left open the question which I have considered as to the extension of the doctrine in Vyse v. Foster (27 L. T. Rep. 774; 8 Ch. App. 309). He says in effect (I use my own language) here we have a code applicable to such a case as the case before me, and I must take it as a guide, and I am bound to consider that the Legislature did not contemplate the expenditure of capital money in any other way than that prescribed by the original and the amending Act, notwithstanding that, in my opinion, the jurisdiction is not gone. As Chitty, J. says, the provisions of the Act assist in guiding the court, and I find them a great assistance in this case, because the Act of 1890 was passed after the decision in Conway v. Fenton, and it is quite within the competency of the Legislature to say that capital money might be applied to everything necessary to be done to enable the property to be It has, however, said nothing of the kind. The Act, in sub-sect. 2 of sect. 13 limits the application of capital money to additions to, or alterations in, buildings. Then, as Chitty, J. points out in De Teissier's Settled Estates, there is a certain jealousy in sanctioning repairs. Repairs should be done by the tenant for life, though that jealousy is not so great here, where there is a different case, namely, that of a tenant in tail; but still, I am not in a hurry to spend capital money in repairs. I do not think I can go beyond this. Chitty, J. would not go so far. If it was a proper case it must be one of salvage, and the land would be lost unless the expenditure were made. If trustees had spent their own money they would come to the court to be repaid with great force, or if they had spent trust money they would get an inquiry as to how far the trust money had been properly expended. I think it is a simple step to say that the court might with the concurrence of the tenant in tail in remainder, sanction the expenditure of infants' money in the case of saving the estate, that is, a case of salvage. Cases of salvage are many and difficult, because one does not know what would happen if the money were not expended. There are cases under the sanitary authority, or the premium on a policy, which admit of no doubt, but it is generally difficult to say whether the expenditure is actually required to save the estate or not. Take the case of a farm which cannot be

let.

CHAN. DIV.]

let without repairing the fence; but it might be let at a lower rent, the tenant to do the repairs. I should want clear evidence that the money expended would bring in its equivalent either in the improved value of the estate or of increased income, so as to come within the description of salvage. If I had proper evidence I should be inclined to say that the court had jurisdiction to sanction the expenditure of the infant's money so as to debar the infant from hereafter calling on the trustees to replace it. I see no reason why it should not be done where an infant is absolutely entitled; and I think equally that there is power where an infant is entitled as tenant in tail with the concurrence of an adult tenant in tail in remainder, which I am told can be obtained. But I have no evidence of the kind here. [His Lordship then reviewed the evidence.] I know that it is essential to do certain things, and I have allowed the sum of 6521. and 8001. to be expended, but I am not sure that when those sums have been expended on the estates, any further expenditure is necessary for salvage purposes. I make an order sanctioning the expenditure of the sums of money which the master has stated on the evidence before him to be for objects authorised by the Settled Land Acts, the costs to be paid out of the fund.

Solicitors, Garrard, James, and Wolfe.

March 6 and 16.

(Before KEKEWICH, J.)

Re MONTAGU; DERBISHIRE v. MONTAGU. (a)

685 Settled land-Trustees-London houses-Pulling

down-Rebuilding-Infants-Jurisdiction.

The original jurisdiction of the court touching the expenditure of money on land is not ousted by the Settled Land Acts: but, whatever the court may have from time to time done in cases of salvage, or whatever may have been done without full consideration of the question of jurisdiction, the court has never asserted a jurisdiction to spend money in pulling down and rebuilding houses; the cases tend to show that the jurisdiction does not exist.

SUMMONS by Eliza Derbishire, spinster and Charles Edward Cree, trustees of an indenture of re-settlement made the 14th Dec. 1872 for the determination of the following questions :

1. Whether in the opinion of the Court it will be for the benefit of the infant defendants, and any unborn children of the defendant Philip Montagu, that the messuages and premises respectively known as Nos. 82, 83, and 82A, Grosvenor-street, and No. 130, New Bond-street, in the parish of St. George, Hanover-square, in the county of Middlesex (being part of the property held upon the trusts of the above-mentioned indenture of the 14th Dec. 1872) should be taken down and rebuilt in accordance with the scheme proposed by William Newton Dunn at a cost of not more than 8500l. to be raised by a mortgage of the property held upon the trusts of the said indenture or some part or parts of such property.

2. Whether the plaintiffs are at liberty to raise the sum (not exceeding in the aggregate the said (a) Reported by FRANCIS E. ADY, Esq., Barrister-at-Law.

[CHAN. DIV.

sum of 85001.) required for the purpose of such taking down and rebuilding by a mortgage of the property or some part or parts thereof.

It was proposed to pull down the whole of the premises, which were old and out of date, and build on the site, which was a corner site, first class shops, fitted with all modern requirements. There was no fund in the hands of the trustees to pay for the pulling down and rebuilding of the premises, and it was proposed to raise the amount required by mortgage of the premises.

By an indenture of re-settlement, made the 14th Dec. 1872 between John Montagu Pulteney Montagu of the first part, the defendant Philip Montagu of the second part, and Septimus Holmes Godson of the third part, it was agreed and declared that Septimus Holmes Godson, his heirs, executors, administrators, and assigns, or other the trustees or trustee for the time being thereof, should stand and be seised and possessed of all and singular the real and personal estate specified in the schedule thereto (comprising the messuages and premises in Grosvenor-street and New Bond-street above mentioned, then held under a lease from the Corporation of London), in trust for such person or persons, for such estates and interests, and in such manner and form as John Montagu Pulteney Montagu and the defendant Philip Montagu should at any time or times, in manner therein mentioned, jointly appoint, and so far as none should extend, upon the trusts therein declared during the life of John Montagu Pulteney Montagu, and from and after his decease, in trust to pay the rents, issues, and profits thereof unto, or permit the same to be received by, the defendant Philip Montagu or his assigns during his life, and from and after his decease in trust for the children of Philip Montagu as he should by deed or will appoint, and in default of appointment in trust for the children of Philip Montagu in equal shares as tenants in common.

And it was provided that Philip Montagu might by deed or will appoint an annuity of 2001. to his widow.

And the indenture contained a power for the trustees to sell the messuages and premises in manner therein mentioned, and a power to demise the same until sale.

And it was thereby declared that the trustees should from time to time, and when occasion required, obtain a renewed lease of the leasehold messuages or tenements held of the Corporation of London, and should for that purpose be at liberty to raise by sale or mortgage of the premises for the time being subject to the trusts of the indenture, such sum or sums as should be required to meet the fine or other expense of, or incident to, such renewal or incurred in relation thereto, including all such costs of repairing, rebuilding, or reinstating the premises as might be required for the purpose of obtaining such renewal. And the indenture contained a power for John Montagu Pulteney Montagu and the defendant Philip Montagu, during their joint lives, to appoint new trustees thereof.

Septimus Holmes Godson died on the 16th Nov. 1877.

The defendants were Philip Montagu and Evelyn Maud Montagu his wife, and their two