not been resisted the indulgence would have been granted only on payment of the costs of the motion. But I cannot deal in this way with all the expense which has been incurred in this dispute. I cannot believe, that, after leaving the books so long in the defendant's custody, the plaintiff is really afraid of any alterations being made in them now; and I regard the contest as entirely frivolous, so far as this motion is concerned, whatever may be the bearing of the alleged alterations at another time. It is necessary that the order should be made precise, and it will be in these terms: The defendants to be at liberty to file an affidavit stating which of the scheduled books are required for use by them in the conduct of their business at Liverpool. These are to be produced at Liverpool for the inspection of the plaintiff or his agent (I shall only allow one agent, who is to be named in the order) from time to time between the hours of ten and four, upon two hours' notice of the books required being left at the defendants' house of business. The plaintiff to be at liberty to make extracts and copies (1), and the defendants to be allowed to seal up on affidavit all such parts of the books as do not relate to the matters in question in this suit, and to open and reseal the same as occasion may require. The period during which the production is to be had, to be limited to three weeks from the time of the first application for inspection. The other documents to be deposited at the Record and Writ Clerks' Office. The costs of the motion to be reserved to the hearing. TURNER r. WRIGHT. (Johnson, 740-753.) [Affirmed on appeal, as reported in 2 D. F. & J. 234.] RICHARDS v. RICHARDS (2). (Johnson, 754-768; S. C. 29 L. J. Ch. 836; 6 Jur. N. S. 1145.) A posthumous heir is entitled to the rents of a descended estate only from the date of his birth, whether the prior rents have been actually received or not. Where a tenant in fee becomes entitled to a charge upon the same land, the fact that a merger of the charge would give priority to other charges affords sufficient presumption to rebut merger; and it is not, in general, necessary to inquire into the relative value of the estate and the charges which would be so let in. By the settlement on the marriage of John Mathews Richards and Arabella Colley, dated September 8th, 1825, certain real estates were settled to the use of J. M. Richards for life, remainder to trustees for a term of 1,000 years, which had since (1) See now Order LXV. r. 27 (18). 76 L. J. Ch. 339, 96 L. T. 511. (2) Villar v. Gilbey [1907] A. C. 139, MERTENS v. HAIGH. 1860. March 28. 1860. March 10, 12, 27. April 17. WOOD, V.-C [ 754 ] been satisfied, remainder as to part of the estates situate in Gall-y-gau and Llanvabon, to trustees for a term of 1,000 years upon the trusts after declared, with remainder to J. M. Richards in part, and the residue of the estates which were in Eglwysilau and Whitchurch (subject to a power which was not exercised) were limited to the use of the first and other sons of the marriage in tail, with remainder to the use of J. M. Richards in fee; and the trusts of the 1,000 years' term were declared to be, that, if there should be any child or children of the marriage, "other than a son or sons, who under and by virtue of the limitations or in exercise and execution of the power thereinbefore contained should be entitled to the first estate of freehold and inheritance" in the lands not comprised in the 1,000 years' term, then that the trustees" should, after the decease of the said J. M. Richards, or in his lifetime if he should so direct, by sale, mortgage, or other disposition of the said hereditaments and premises comprised in the said term of 1,000 years, or out of the rents, issues, or profits thereof raised for the portion or portions of the child or children of the said marriage, other than and except a son or sons, who under or by virtue of the limitations or in exercise of the power therein before *contained should be entitled to the first estate of freehold or inheritance of and in the said messuages, lands, and hereditaments thereby appointed and released, and not comprised in the said term of 1,000 years, and the sum of 5,000l. to be divided among such children, other than such son or sons so entitled as aforesaid, in such shares and in such manner as the said J. M. Richards should appoint, and in default of appointment then among such children other than such son or sons so entitled as aforesaid, in equal shares; the share of such of them as should be a son to be an interest vested in him at the age of twenty-one years, and the shares of such of them as should be daughters to be vested in them at the several ages of twenty-one years or days of marriage, which should first happen, to be paid at such ages or times respectively as the same respectively should happen after the death of the said J. M. Richards, and if this should happen in the lifetime of the said J. M. Richards then immediately. after his decease," with a clause of survivorship in the event of the death of a son under twenty-one or a daughter under twentyone without having been married. There were issue of the marriage, besides two children who died infants and unmarried in the father's lifetime, J. R. Richards, the eldest son, Edward Priest Richards, the second son, and two daughters. John Mathews Richards died in 1843, J. R. Richards, the eldest son, became tenant in tail in posses sion of the estates in Eglwysilau and Whitchurch, and died in 1845 without having been married and an infant. Edward Priest Richards thereupon became tenant in fee simple in possession of the estates, subject to the 1,000 years' term, and tenant in tail in possession of the other *settled estates, part of which consisted of an undivided moiety of lands in Eglwysilau, the other moiety of which belonged to Lord Dynevor, and the other part consisted of an undivided third part of lands in Whitchurch, the other two-thirds of which are vested in Lord Dynevor and a Mr. Lewis. E. Priest Richards was also entitled in fee simple to an undivided moiety of certain lands in Merthyr Tydvil, the other moiety of which was vested in Lord Dynevor. The moiety of E. Priest Richards in the fee simple lands in Merthyr Tydvil was, by his marriage settlement, dated February 4th, 1856, charged with a rent-charge of 800l., secured by a term for his widow, and with a term for raising 500l. for his children, and, subject thereto, was vested in the said Edward Priest Richards in fee. Mary, one of the daughters of J. Mathews Richards, attained twenty-one and died intestate in 1853, leaving E. Priest Richards and his sister, Mrs. Treherne, her next of kin; and administration was taken out by E. Priest Richards and after his death, by Mrs. Treherne. E. Priest Richards attained twenty-one after his brother's death, and died on November 12th, 1856, intestate, leaving him surviving his widow, then enceinte, and his sister, Mrs. Treherne, his heiress-at-law subject to the birth of a posthumous child. On June 23rd, 1857, a posthumous child of Edward Priest Richards was born, who was the plaintiff in the present suit. The rents of the intestate's estates had for many years during his life been received by his agent, a Mr. Lloyd, *and he [ *757 | continued to receive the same after the intestate's death. With respect to the estates as to which the intestate was entitled jointly with Lord Dynevor, an arrangement had for many years been acted on, and was subsisting up to the intestate's death, whereby the rents, which were payable half-yearly, were received alternately by the intestate and Lord Dynevorthe half-year's rents which accrued at Michaelmas being received by the intestate in the February following, and those which accrued in March being received by Lord Dynevor in the following June. The whole of the Michaelmas rents of 1856, which accrued due in the intestate's lifetime, was re RICHARDS t. RICHA RDS. [ *758 ] ceived after his death by Mr. Lloyd; and the whole of the March rents of 1857 was received by Lord Dynevor. The rents of the other portions, both of the fee simple and the entailed estates of the intestate, which accrued due between the intestate's death and the birth of the plaintiff, were also received by Mr. Lloyd, who was subsequently appointed receiver in the cause. The cause coming on upon further consideration, the question was who was entitled to the rents which accrued in the interval between the death of the intestate and the birth of the plaintiff. Another question was, whether Edward Priest Richards was entitled to a share in the 5,000l. secured under the settlement of 1825 by the 1,000 years' term, either in his own right or as administrator of his sister Mary, or whether his interest had not merged by the acquisition of the fee of the estates subject to the term. Mr. Freeling for the plaintiff: As to the entailed estates, the presumptive heiress has no title to the intermediate rents: 10 & 11 Will. III. c. 16; and as to the fee simple estates, her right is to retain only what *she may have actually received before the birth of the posthumous child. Rents which accrued, but were not received by the presumptive heiress before the plaintiff's birth, belong to the plaintiff Goodale v. Gawthorne (1). All that the cases show This is, that no account can be had of rents so received. Here the rents were not received by Mrs. Treherne, and belong to the infant. As to the 5,000l., E. Priest Richards was entitled to one share in his own right, because he was not a person who became entitled to the first estate of inheritance, and his elder brother alone was excluded. He was also entitled to the share of Mary as her administrator, and beneficially to one-half of it. Both of these interests merged in the fee simple of the estate charged with the 5,000l. when the estate descended upon E. (1) 97 R. R. 252 (2 Sm. & G. 375). 3 Atk. 203; see 97 R. R. p. 253, n. It appears from the Registrar's book that the decree in Basset v. Basset was not, as the report in Atkyns implies, a declaration merely that the posthumous heir was not entitled to an account, but a declaration "that the rents and profits of the settled estates belonged to the plaintiff from the time of his father's death, and that the rents and profits of the lands in fee belonged to the plaintiff from the time of his birth only." (3) 3 Wils. 516. (4) 4 Ves. 334; see 4 R. R. 205. Priest Richards. Lord Compton v. Oxenden (1), is an authority Mr. C. T. Simpson, for the widow and administratrix of I have no interest in the question as to rents. As to the In ascertaining what is the interest of a person, for the purpose of presuming or not presuming merger, the Court cannot look at the fact of the estate being sufficient to cover all charges upon it. To enter into such questions would lead the Court into the same difficulties which arose out of the doctrine about illusory appointments. (He cited Grice v. Shaw (2), Forbes v. Moffatt (3), Davis v. Barrett (4), Earl of Clarendon v. Barham (5).) Mr. Cotton, for Mrs. Treherne: The right of the so-called presumptive heiress is a strict common law right, by virtue of an actual estate in the lands, to the rents accruing before the birth of the posthumous child. Goodale v. Gawthorne is the only authority which suggests that actual receipt of the rents is necessary, and the passage in Co. Litt. 55 b, was not cited on that occasion. The estates to which the plaintiff is entitled as tenant in tail by descent are not settled estates within the meaning of the statute, which applies only to interests in remainder. Therefore these rents also follow the common law rule: Basset v. Basset. Mr. Freeling, in reply: I admit that the presumptive heir has a qualified estate, *and may therefore retain rents received; but on the birth of a posthumous child the estate vests in him by relation from the death of the ancestor, and carries with it all the rents not received in the meantime by the presumptive heir. With respect to the merger, Grice v. Shaw does not apply, because that was the case of an estate tail. In the case of a fee simple the onus of rebutting merger is on those who (1) 90 R. R. 831 (2 Ves. Jr. 261). (4) 92 R. R. 209 (14 Beav. 542). RICHARDS v. RICHARDS. [ *759 ] [ *760 * |