HEAD r. GODLEE. [ *577 ] evidence that Barton's prospects with reference to this property were communicated to the stepfather of his wife. Then, in October, 1823, Mrs. Head was married. Shortly afterwards Mr. Head discovered, as he says, the flaw in the settlement, by examining the will at Doctors' Commons. What followed, being substantially post litem motam, I shall go through very rapidly. First, we have Mr. Hodgson's opinion, founded on the will and settlement, without any knowledge of the codicil of 1822, or the deed of 1823. It is a very clear, and, on the information before him, a very sound opinion, in favour of Mrs. Head. On obtaining this opinion, Mr. and Mrs. Head execute an acknowledged deed, giving Mrs. Head an absolute power; but instead of communicating Mr. Hodgson's opinion and their own deed to Barton, they keep them concealed from him till 1839, when, in the course of a dispute about the nomination of new trustees, it became necessary to produce the opinion. Then followed a long correspondence and discussion, which has been referred to by the plaintiffs as showing that Barton relied on the injustice of taking advantage of what he considered the technical defect arising from the want of a fine to pass his wife's interest, rather than upon any compact or arrangement. There is certainly some confusion of ideas apparent, but he does appear to have relied on both views, and only to have shifted from the notion of a compact to the argument based on the supposed technicality of the objection, when *impressed with the idea that counsel had pronounced the settlement invalid. Then, on the other side, there was evidently a strange impression on Mrs. Head's mind that there was some intention of her father's which she would be defeating if she gave effect to her sister's will. She speaks of what the testator might be expected to do with his property if alive, as if this had anything whatever to do with the question. She harps throughout on this idea of intention; a notion which would have made even a fine, if levied by Mrs. Barton, a sort of fraud on the father's will. She is pressed to say whether she did freely consent to the arrangement of 1815, to which she gives no answer but a reiteration of this notion as to the father's intention. Throughout this period I can find, on the other hand, no trace of Barton receding from his assertion that an agreement had been conre to. Such being the facts of the case, and the attitude of the parties, the first question is, whether there was such an agreement as Barton alleges; and I hold that Mrs. Head's execution of the settlement of 1815 is evidence of an agreement by her, entered into, as I must infer from the evidence, with ample advice and information on the question whether the settlement was or was not in accordance with the will. This is strengthened by her subsequent expression of a wish in the year 1822, to sustain the settlement, by her recognition of the settlement, by her will in 1820, and more distinctly by the codicil of 1822, at which time she had all the documents before her and her solicitor, and not only recognised the settlement, but referred to it as subject to some doubt which she desired to obviate. Then, I hold that she confirmed the settlement by the proceedings as to the rehearing, in which she concurred in desiring that the settlement should be sustained-by the leases, to some, perhaps, slight extent—and, above all, by the deed of 1823, whereby, after giving a life interest to her brother-in-law, *she declared that after the expiration thereof the property should be held on the trusts of the settlement. This is the case of confirmation. Then, on the point of acquiescence: on this ground alone it might well be held, that, after putting Barton into possessionafter allowing him to reject the life interest, under the impression that the remainder in the moiety was his undoubted property-after his second marriage, in the same belief, and with evidence that his expectations were communicated to the friends of the lady he was about to marry-it might well be held on this ground alone that it is too late for Mrs. Head, or any one claiming under her, to dispute, by a bill filled in 1857, the disposition in which she thus acquiesced. Even putting out of consideration 'the time which has elapsed since the dispute arose, I do not think it would be right to allow her to lie by, from 1822 till 1839, without any communication to Barton, and during five years at any rate after she had acquired full knowledge of her position. To say that she and her devisees had a right to wait till a total failure of issue reduced the interest to possession, would have served equally to justify a bill filed after the lapse of a century, if the possession had been so long deferred. There is no analogy between such a case and the ordinary assertion of a right when a remainder falls into posses sion. Here the wrong was a breach of trust under which the legal estate was divested in 1822, and it is this wrong of which a bill filed in 1857 complains. Apart from these considerations, there is the question, whether a rehearing was not, at any rate, necessary to get rid of the effect. of the original decree. This is a point of some difficulty, which it is not necessary for me to decide. Had I been compelled to do so, I should have held that a rehearing was necessary. If so, I should have no jurisdiction to rehear a decree made at the Rolls. I infer the views of the LORDS JUSTICES to have been, that a rehearing *might be necessary, but that the subsequent HEAD 1. GODLEE. [ *578 ] [ *579 ] events had rendered it necessary also to file a supplemental bill; and they refused then to give leave for a rehearing, considering that the facts to be brought forward in such a supplemental suit might materially influence them in exercising their discretion. If this be the correct view, the course, as a matter of practice, would have been to file a supplemental bill, and to bring that and the rehearing on together. If I had given my judgment on this bare point, and if the Court of Appeal had taken a different view, the cause would have come back again on the merits; and as I am of opinion, that, even if the plaintiff is right in saying that a rehearing is unnecessary, he has made out no case for relief, I have preferred to base my decision upon the larger ground. [His Honour then reviewed various authorities upon the question whether a rehearing or a bill of review would be necessary to get rid of the effect of the original decree, and continued as follows:] There is, therefore, some doubt on the authorities; but, on principle, it would seem that where all persons interested are parties to a suit, and a decree is made affecting trustees so seriously as this decree does, none of the parties can get rid of the decree without a rehearing or review. That is, I think, the right conclusion; but it is not necessary to decide the point, because I am of opinion that the plaintiff *fails altogether to make out any case on the merits. Head v. Godlee will, therefore, be dismissed with costs, except as to Reynolds, against whom it will be dismissed without costs, his case being put upon a ground different from that of the other defendants and involving a claim similar to that made by the plaintiffs. I now come to the suit of Reynolds v. Godlee, which involves a question of law that has never yet been decided. By the will the personalty was directed to be invested in land to be held on the trust declared of the realty. These trusts left the reversion undisposed of. The first question was, whether I must abide by the decision in Cogan v. Stevens, and hold that personalty directed and required to be converted, is held (so far as it is not exhausted by the trusts) for the benefit of those who are entitled to the personal estate, and not for the heir of the testator. I am not about to review the authorities discussed in that case by Lord COTTENHAM; for though the full weight of one of them, Fletcher v. Chapman (1) did not bear on the case before him so directly as it does upon this, I think that I am not trenching on authorities in saying that the circumstances which justified Lord COTTENHAM in that case justify me in a similar (1) 2 Eden. 155. decision here, notwithstanding the current of dicta, up to the time of Cogan v. Stevens, that the heir would be entitled to undisposed of personalty directed to be applied in the purchase of land. Lord COTTENHAM did not decide upon any mere analogy to the converse case of land directed to be sold; but he went upon the same principle on which those cases had been settled-viz. that in effectuating the intention of a will you are not to hand over to a person not named as an object of bounty, and to whom the law would not give it if not converted, property which the testator has directed to be converted *for particular purposes which do not exhaust it, and has left undisposed of in other respects. The only logical argument for the heir is, that the direction to convert the personalty into land is an implied gift to the person on whom land would devolve. But there is no ground for such an implication; and though the decision in Cogan v. Stevens was only at the Rolls, and not strictly obligatory upon me, yet I conceive it to be so consonant with sense and reason, that I should be the last to desire to disturb it. I am of opinion, therefore, that this was undisposed of personalty, and that either the next of kin or the executors were the persons entitled to claim it. The next question arises in this way. The testator's wife survived him, and the plaintiff, Dr. Reynolds, is her heir-at-law, and also the heir of both daughters. He contends that the undisposed of personalty came to the next of kin in the shape of land that they took it as realty-and that, in the absence of any reconversion, the share of the widow who died intestate descended upon him; just as undisposed of land, where conversion is directed and is necessary for the purposes of the will, is taken by the heir as personalty. It is urged that the analogy of Wright v. Wright, and Smith v. Claxton, must be applied completely, so as to make this real estate in the hands of the next of kin. But there is a great difference between realty and personalty in this respect. It is not the next of kin at all, but the executors, on whom personal property devolves until the purposes of the will are satisfied. This is met by saying that the debts and legacies are all to be satisfied before this residue is to be invested. But I apprehend that the executors have a right to say that this estate should come back to their hands (1), and this strengthens the view that the proper ultimate limitation on settling the purchased property would have been to the (1) See Curteis v. Wormald, referred to ante, p. 227, n., where it was held that the resulting trust was for the next of kin and not for the executors of the testator, and that land actually REYNOLDS ፖ. GODLEE. [ *583 ] executors or administrators of the testator, or some limitation which would make it go as his personal estate. *Looking at it from this point of view, there is no way of dealing with the fund in the hands of the executors as realty. The executors must take and dispose of it as personalty. The observations of Lord ELDON in Ripley v. Waterworth (1) deserve consideration in connection with this point. The question there was, whether executors named in a gift of an estate pur autre vie took as special occupants or under the Statute of Frauds, and Lord ELDON said that, even if special occupants, he should hold that they took the estate as personalty. At p. 438, he says, “I doubt whether an executor or administrator ever takes anything as such that he would not be bound to apply as personal estate of the testator." Put this hypothetical case. Suppose a bequest of 20,000l., to be laid out in the purchase of a specific estate, to be strictly settled on A., but without any limitation of the fee; then general legacies of 10,000l. The specific gift must be first set apart. Suppose now the estate to be deficient to pay the 10,000l. If after this the limitations of the 20,0001. are exhausted, the land purchased or directed to be purchased therewith must certainly be dealt with as the estate of the testator, which the executors must apply as personal estate in payment of the general legacies. The executor is in general the only person who can stand here to claim the personal estate, and whatever he gets in quà executor he must hold as personalty. There is no example in the books of next of kin taking property as realty. The observations in Ripley v. Waterworth come nearer to the point than anything else, and tend to the inference that the interest which in this case devolved on the next of kin did not come to them as realty, so as to descend to their heirs. Reynolds, therefore, has no locus standi; and his bill also must be dismissed with costs. PLUMMER v. WHITELEY. (Johnson, 585-590; S. C. 29 L. J. Ch. 247; 5 Jur. N. S. 1416; 1 L. T. N. S. 230; 8 W. R. 120.) The Apportionment Act (4 & 5 Will. IV. c. 22) applied to all cases where either the lease reserving the rent, or the instrument creating the life interest in it, had been executed since the passing of the statute. [See now the Apportionment Act, 1870.] (1) 7 Vcs. 423. |