Ex parte [ *375 ] [ *376 ] April 16. lawfully to be begotten, and to the heirs of their respective bodies lawfully issuing. He then proceeded as follows: "And in default of such issue, then I give and devise the said dwelling-houses, gardens and premises unto Sarah *Marder, my daughter, for and during the term of her natural life, and from and after her decease, then I devise the said dwelling-houses and premises unto the child and children of her body lawfully to be begotten, and to the heirs of their respective bodies lawfully issuing." The testator died in 1776 and his widow in 1795. The testator's daughter married Tanner, and had six children; she died in 1840, and in 1844 Henry Marder died without having had issue, at which time some of the children of the testator's daughter were dead. The property was compulsorily taken under the Tiverton Market Act (6 Geo. IVi c. cxxxix.) for the purpose of the Act, and the purchase-money was paid into Court, and invested in 416l. 1s. Consols. A disentailing deed having been executed, a petition was presented by some of the children to obtain payment out of Court of the fund, and a question arose as to the estates taken by the children under the above devise. Mr. R. Palmer and Mr. Karslake, in support of the petition, contended that the word "respective," attached to the gift to the heirs of the bodies of the children, had the effect of severing the respective shares of the children, and of creating a gift to a class of children as tenants in common in tail. Mr. Berkeley, for the Tiverton Market Company, asked for his costs out of the fund. (THE MASTER OF THE ROLLS: No; it is for their benefit that there should be no investment.) Mr. Selwyn, for one of the children: The children take as joint tenants for their lives and the life of the *survivor, with separate inheritances in tail, for a gift to several (who cannot intermarry), and the heirs of their bodies, is a joint tenancy for life, and several inheritances in tail. [He cited Forrest v. Whiteway (1), Edwards v. Champion (2), and Doe d. Littlewood v. Green (3).] I am of opinion that these words create a joint tenancy for life, (1) 77 R. R. 645 (3 Ex. 367) (2) Reported on appeal in 98 R. R. 109 (3 D. M. & G. 202). (3) 51 R. R. 550 (4 M. & W. 229). ex with several inheritances in tail. It is not disputed that "if lands be given to two men, and to the heirs of their two bodies begotten, in this case the donees have a joint estate for the term of their two lives, and yet they have several inheritances in tail" (1). But it is contended, that in the present case, the word "respective " creates a tenancy in common in tail, and that the expression applies not only to the inheritance, but to the whole *estate of the children. I think, however, that the word "respective presses only that which the law would imply without it. If lands were given to a man and woman, and the heirs of their bodies, this would be an estate in special tail (2), and the word "respective," if introduced before the word "heirs," would have the effect of making the man and woman joint tenants for life. It would be the same as if the gift were to a man and woman who could not marry, and the heirs of their bodies. So if an estate were devised to two and their heirs, they would be joint tenants in fee simple, and if not severed the survivor would take the whole; but if the words "respective heirs" were introduced, and it were a devise to A. and B. and to their respective heirs, I should be of opinion that they were joint tenants for life, with several inheritances in fee. I think I must give the same effect to these words as I should in the case suggested, and I must confine the application of the word "respective " to the inheritance given after the estate to the children. If the devise had been "to the children and the heirs of their bodies, respectively," I should have held them tenants in common in tail. Here the expression "respective" is limited to the inheritance, and these are fit words to create a joint estate for life, with several estates of inheritance in tail. I think it would be impossible to give any other construction to these words, if the question arose upon a deed, and there is nothing from which I can come to a different conclusion when they are used in a will. The children were therefore joint tenants for the term of their lives, with several inheritances in tail. IN RE LEWIN'S TRUST. (20 Beav. 378-379.) [Wife's equity to a settlement. Special order made by arrangement between the parties.] Ex parte [ *377 ] 1855. March 29. April 16. (1) Littleton's Tenures, s. 283. (2) Littleton's Tenures, s. 16. 1855. April 18. Rolls Court. [ 380 ] [381] YONGE v. FURSE (1). (20 Beav. 380–383; S. C. 3 W. R. 383; 25 L. T. O. S. 113.) A. B. purchased an estate in consideration of an annuity. It was thereupon charged upon the purchased and also on another estate, and A. B. covenanted to pay it. On A. B.'s death: Held, that his liability was in the nature of a personal debt, and that consequently his personal estate was the primary fund for payment of the annuity. IN 1848, the testator, John H. Furse, purchased "the Beaford estate" from Wheeler, in consideration of a life annuity of 5001. By the conveyance, after reciting that the annuity was to be secured by the covenant of the testator and a charge, Wheeler conveyed the estate to Furse and his heirs, to the use and intent that trustees should receive thereout a rent-charge of 500l. a year, during the vendor's life, in trust for the vendors, with powers of distress and entry, &c., and subject thereto, to the use of Furse absolutely. Mr. Furse covenanted to pay the life annuity, and by an indenture of even date, he also charged an estate of his own, called Hartland, with payment of it. The testator died in August, 1854, intestate as to his real and as to the residue of his personal estate, and the question now arose, between his heirs and next of kin, which was the primary fund for the payment of this annuity. His co-heirs contended, that it was payable out of the personal estate, and the next of kin insisted, that it was charged primarily on the Beaford and Hartland estates. Mr. R. Palmer and Mr. Surrage, for the plaintiffs: The annuity is payable out of the personal estate. The deed of conveyance recites, that the annuity was to be secured by the covenant of the testator and by a charge. The covenant, being mentioned first, shows that it was the first security, and the word secured" points to the personal obligation alone. Mr. Follett and Mr. C. C. Barber, for the other co-heir: The security for payment of the annuity is threefold: first, the covenant by the testator to pay; secondly, the charge on the purchased estate; and thirdly, the charge on the auxiliary estate. Now the contract is primâ facie a personal contract, and the Covenant to pay is absolute, the primary fund, therefore, for payment is the personal estate, as in the case of a mortgage: Waring v. Ward (2). (1) Followed, as to the first point, in In re Muffett (1888) 39 Ch. D. 534, 57 L. J. Ch. 1017, 59 L. T. 499; but in that case no question arose as to the relative liability of the real and personal estates. By Locke King's Act (17 & 18 Vict. c. 115), which had no application to the estates of testators who died before 1855, and by the amending Act of 1877 (40 & 41 Vict. c. 34), charges on land are now primarily payable thereout unless a contrary intention is shown. Another question in the same suit is reported in 8 D. M. & G. 756.—O. A. S. (2) 5 R. R. 130 (7 Ves. 332, 336). Mr. Bagshawe and Mr. Bagshawe, jun., for some of the next When a mortgage is given as a security for raising a sum of money for a special purpose, and not to secure a debt of the mortgagor, even though the mortgagor covenants to pay the money, it is not primarily payable out of the personal estate. The covenant is “merely a matter of form and only auxiliary." In Graves v. Hicks (2), a father agreed to secure a marriage portion for his daughter, and mortgaged land for that purpose, and he covenanted to pay the money; it was held, that the mortgaged land was not to be exonerated out of the personal estate. This is a legal rent-charge payable out of the estate, and the personal covenant is merely thrown in as an additional security, it being the intention, that the real estate should bear the burden: Ker v. Clobury (3). In Hickling v. Boyer (4), a testatrix having bequeathed leasehold property, which was held subject to a covenant to repair, it was held, on general principles, that the legatee must take it cum onere, and subject to the dilapidations. existing at the testatrix's death. Mr. Jessel (in the absence of Mr. Roupell), for the testator's This is a case of a simple rent-charge. No authority can be produced for the position, that the personal estate is the primary fund to pay a legal rent-charge, and it is contrary to every principle to be derived from the decided cases. There are three classes of cases, first, where the money secured is the debt of the party securing it; secondly, where it is not, but arises from some arrangement, by which he has agreed to secure it; and thirdly, where, properly speaking, there is no debt at all, but a sum is to be paid or raised under the provisions of a *settlement, or the like, and in order to raise it, the owner of the estate, besides creating the charge, has entered into a covenant to pay it. According to the decisions, the personal estate is primarily liable, in the first case, but not in the latter. Where the estate is the original and the covenant only an additional and auxiliary security, there, as between legal and personal representatives, the first must be exhausted before recourse can be had to the second. Mr. Lloyd and Mr. Henry Stevens, for trustees. THE MASTER OF THE ROLLS: I cannot distinguish this from the ordinary case of the purchase (1) 62 R. R. 161 (2 Hare, 408). (2) 6 Sim. 398. (3) Sugd. Conc. View, 137. money for an estate being allowed to remain a charge upon it. The case is not embarrassed by the person who advances the money or allows it to remain being also the vendor, for if a third party had advanced the money to purchase an estate, and in consideration of the advance the purchaser had given him a rent-charge on the estate and had covenanted to pay the annuity, I should have had no hesitation in coming to the conclusion, that this would be a debt of the purchaser, payable primarily out of his personal estate. Here a debt was contracted by the purchaser to the vendor; for the purpose of securing it, he gave a charge on the estate and a personal covenant to pay it, which bound his personal estate. It can make no difference whether the purchase-money was to be paid in a gross sum, or from time to time, by way of an annuity for life; it is equally a debt and charge upon the personal estate, and in either case the personal estate is the primary fund to pay it. HARRIS v. THE NORTH DEVON RAILWAY COMPANY. (20 Beav. 384-388.) Directors had power, on nonpayment of calls, to sue for them or forfeit and sell the shares. They proposed to a shareholder to relieve him from further liability, on his consenting to an absolute forfeiture. He assented, but the directors, having afterwards discovered that he was in good circumstances, refused to complete. The COURT declined to compel the directors specifically to perform the contract. The discretion of directors to forfeit shares for nonpayment of calls is a trust, to be exercised for the benefit of all the shareholders. THE defendants, the North Devon Railway and Dock Company, were incorporated by Acts of Parliament, and, by the 68th section of the first of those Acts, the directors of the Company were empowered to make calls on shares, and it was thereby enacted, that if any owner of shares should neglect or refuse to pay the calls thereon, it should be lawful for the Company to sue for and recover the same, or to declare the shares forfeited, and to order them to be sold; provided that no advantage should be taken of any forfeiture without giving notice to the shareholder in writing, and observing the other formalities therein mentioned. In another of the Acts, passed in 1847, the Companies Clauses Consolidation Act was incorporated. The plaintiff was at first a registered proprietor of 150 shares, but these were subsequently reduced to 50, on which there being arrears of calls, amounting to 400l., unpaid, a correspondence relative thereto took place between the plaintiff and the solicitors of the Company, which resulted in a letter from the solicitors to the plaintiff, dated 8th November, 1854, and written by the verbal order of the board of directors, stating that the directors had come to the determination of allowing the plaintiff, if he pleased, to forfeit his shares; that, |