Now, in Massey v. Parker (2) a question arose as to the effect of the word "sole." In that case Lord Cottenham (then Sir C. Pepys) makes the following observations: "The cases require very distinct and unequivocal expressions, to create a separate interest in the wife. In Tyler v. Lake the Lord Chancellor says that the husband is not to be excluded, except by words which leave no doubt of the intention; and of that principle the case of Tyler v. Lake, which is also reported before the Vice Chancellor, and the case of Stanton v. Hall (3), afford strong illustration. In neither of these cases did the claim of the wife prevail; although in Stanton v. Hall the whole machinery of the instrument proved that such must have been the intention, but the required words of exclusion were wanting; and in Tyler v. Lake the trustees were directed to pay the shares of the trust fund into the proper hands of the married women, to and for their own use and benefit; and if they should be dead, to pay the same to their husbands. Such being the rule, is there in this case no doubt of the intention to exclude the husband? The true construction is quite the other way. There is no mention of the husbands, nor any direct allusion to marriage. There is, indeed, a gift to the children of her grandchildren, but there is nothing to shew that the testatrix had present to her mind the right which future husbands of her grandchildren would obtain in their property. It is immaterial to consider what effect the words might have had if used with reference to future husbands of her grandchildren, because I am of opinion that they are in this case used with reference not to any control of such future husbands of the grandchildren, but to the possible control of the mother." If, then, I find the word "sole" used in contradistinction to something else than the rights of the husband, I cannot construe it to exclude the husband's rights. But in the present case it is clear that "sole" is made use of for no other purpose (2) 2 Myl. & K. 174; s. c. 4 Law J. Rep. (N.S.) Chanc. 47. (3) 2 Russ. & M. 175; s. c. 9 Law J. Rep. (N.S.) Chanc. 111. than to shut out the rights of the husband; and looking at the case of Adamson v. Armitage, which was followed by Inglefield v. Coghlan, I think that I ought not to consider the word "sole" insufficient to create a separate use, unless where, as in Massey v. Parker, there is some one else to whom it may be considered to refer. Here, however, the frame of the will shews that the testator contemplates the legatee's husband, and the word "sole" must therefore mean "independent of her husband." This circumstance distinguishes the case from Gilbert v. Lewis, before Lord Westbury, where there was a mere gift to an unmarried woman and nothing to shew that the possible husband was in view. Although, therefore, the case is not quite free from doubt, I think I ought to order the money to be paid out to the petitioner on her separate receipt. The lessee of a house which had been notoriously used for many years as a brothel, assigned his term absolutely to a purchaser for value, knowing that the rent and premium would be paid out of the profits of the immoral trade carried on there. Among the lessee's covenants contained in the original lease was a covenant to deliver up the premises in good repair at the expiration of the term, and also not to permit the same to be used as a brothel. At the termination of the lease the lessor compelled the lessee to pay a sum of 651. for dilapidations and certain arrears of rent. The lessee submitted to the payment and claimed over against the estate of his assignee under a covenant contained in the assignment for indemnity in respect of all lessee's covenants:-Held, that the assignor was not entitled to recover, the whole transaction and every obligation arising out of it being tainted with immorality. This was an adjourned summons, under an order granted in the above suit for administering the estate of Edmund John Lacey, deceased, on behalf of his creditors. In The plaintiff claimed a debt of 651. under the following circumstances: 1843 the plaintiff, Henry Smith, took a lease of the Fountain Tavern, in Exeter Street, Strand, for twenty-one years, at a yearly rent of 150l. The lease contained the ordinary covenant to keep the premises during the term, and yield them up at the expiration of the term, in good repair, and also an express stipulation that the house should not be used as a bagnio or brothel. In December, 1845, the plaintiff contracted to sell the lease to Lacey (who for some years previously had been in occupation of part of the premises as a brothelkeeper) for 1,400, including furniture and fixtures. As an accommodation to Lacey, the transaction was carried out by an underlease for four years, the purchasemoney being made payable by instalments as rent in addition to the original rent reserved by the lease. At the expiration of the underlease (the instalments having been duly paid) the plaintiff in March, 1850, executed an absolute assignment of the residue of the term to Lacey; this assignment contained the usual assignee's covenant to pay the rent and perform the lessee's covenants as reserved and contained in the original lease, and to indemnify the plaintiff in respect thereof. At the termination of the lease the plaintiff was called upon, under threat of legal proceedings, to pay to the original lessor 651. for some small arrears of rent and for dilapidations. The plaintiff submitted to the payment, and now claimed over against his assignee's estate. The validity of the claim was contested on the ground that the assignment was made in pursuance of an illegal agreement between the parties that the tavern should be used as a brothel. Evidence was adduced shewing that it had been so used for a period of forty years, and that the rent and consideration money were enhanced far beyond the legitimate value of the premises in consequence of such use. On the other hand it was shewn that a transcript of the covenant contained in the original lease against any improper use of the premises had been inserted both in the underlease and in the assignment to Lacey. The plaintiff also in crossexamination swore that there had been no engagement or understanding between himself and Lacey as to the nature or character of the business to be carried on there. Mr. Baily and Mr. D. Jones, for the plaintiff, contended that they were entitled to recover the debt under the assignee's covenant in the assignment, by which he was liable to the performance of the covenants contained in the lease and to indemnify his assignor in respect of any breach thereof Burnett v. Lynch, 5 B. & C. 589 ; s. c. Mr. Glasse and Mr. Barnard, for the defendant (Lacey's executor).-The validity of the plaintiff's debt must be determined in equity upon the same principle as at law- Whittaker v. Wright, 2 Hare, 310; s. c. 13 Law J. Rep. (N.s.) Chanc. 367. No legal demand can arise out of a contract based on an immoral or illegal consideration. Here the rent reserved and premium taken were excessive. There having been a participation by the plaintiff in the profits arising from an improper user of the premises, his debt is not recoverable at law or in this court. The case comes within the principle of the authorities Selwyn's Nisi Prius, 1, 68 (12th edit.) Girarday v. Richardson, 1 Esp. 13. The Gaslight and Coke Company v. Turner, 6 Bing. N.C. 324; s. c. 9 Law J. Rep. (N.S.) Exch. 336. Collins v. Blantern, 1 Smith's Lead. The Queen v. Rice, 1 Law Rep. C.C. 21; s. c. 35 Law J. Rep. (N.S.) M.C. 93. Mr. Baily, in reply.-The cases do not affect the principle of Burnett v. Lynch. Where the ground landlord comes upon the assignor of a lease, the law imputes all legal liability to the legal assignee. Our claim is quite irrespective of the use to which the premises were applied. In all the cases cited the immoral purpose formed part of the contract. Here there was an express prohibition against any such use. Moreover, this is not an attempt to recover rent, but money advanced by us for the use of the defendant. If the whole transaction is void, as contended by the defendant, then the original lease was bad, and our assignment was voluntary. KINDERSLEY, V.C., after stating the circumstances of the case, continued as follows: Now from the evidence it is clear that this house has been notoriously used for this wretched purpose during a period of not less than forty years; and I cannot resist the conclusion that the plaintiff not only knew of its having been so used, but also knew that it was Lacey's intention to continue the same immoral use of the premises, and that he contracted for the assignment over to Lacey, with the prospect of being paid out of the profits of this immoral trade. A great many cases have been cited to shew that no legal right can be created in respect of such a transaction. The case which appears to me most nearly in point is that of Jennings v. Throgmorton, where, in an action for the use and occupation of a lodging under a weekly tenancy, although it did not appear that the lodging was originally let for purposes of prostitution, yet it was held that the plaintiff could not recover the weekly rent which had accrued since the time of his being fully informed of the defendant's mode of life and of her object in occupying the lodging. So, again, in Bowry v. Bennett, Lord Ellenborough very clearly laid down the principle which would influence the Court in cases of this kind. He says that "it must not only be shewn that the plaintiff had notice of the defendant's mode of life, but that he expected to be paid from the profits of her prostitution, so that he (the plaintiff) might appear to have done something in furtherance of it." Now it appears to me that this principle is clearly applicable to the present case. Can any one doubt but that the plaintiff expected to receive payment of that excessive rent and premium for the premises out of the profits of this immoral trade? And although he had no lien, or anything in the nature of a lien, upon those profits, yet he must have been perfectly aware that, without carrying on such a business, Lacey would be unable to continue in the occupation of the premises upon the terms of his contract. Then it has been argued that this is not an attempt to recover rent, but money, which Lacey ought to have paid, and which the plaintiff was forced to pay under his original covenant with the lessor; and therefore, putting out of the question any impediment arising from the vicious use of the premises, the plaintiff is entitled to recover this money against Lacey's estate, as being in effect money paid by the plaintiff to the use of Lacey. But it appears to me that this claim is, in fact, tainted by the immorality of the whole transaction, just as much as if it were a claim for rent; and every right or obligation whatever arising out of this contract must be affected by the same taint. I cannot therefore allow any arguments to prevail in favour of the plaintiff's claim, and I am of opinion that the plaintiff is not entitled to recover this sum as a creditor of Lacey's estate. Solicitors-Messrs. Johnston & Jackson, for plaintiff; Messrs. Walter & Moojen, for defendant. Married Woman-Equity to a Settlement-Real and Personal Estate-Election -Compensation as to Part. Under the settlement made upon the marriage of M, his daughter C. became upon his death, subject to the rights of her husband, tenant in tail in possession of certain real estate and absolutely entitled to a share of personalty. M. by his will gave to C. an annuity of larger value than her share under the settlement for her separate use, which she was required to accept in lieu of her share under the settlement. C's husband was an insolvent, and his assignee refused to give up her husband's interest in the settled property: -Held, that as to the share of personalty, which was outstanding in trustees, the Court, electing on C.'s behalf to take under the will, could order it to be made over in accordance with the testator's directions, but that, as to the realty, the Court could not affect the estate which had passed to the assignee, and that C. must make compensation to the amount of rents and profits withheld. At the date of the settlement next hereinafter stated, Henry, late Lord Maynard, was seised in fee of the freehold and copyhold hereditaments and absolutely entitled to the personal estate therein specified. Under this settlement, made upon Lord Maynard's marriage, certain freeholds stood limited immediately before his death to the use of Lord Maynard for life, with remainder to the use of the children of the marriage, in such shares and for such estates as Lord Maynard should by deed or will appoint, and in default of appointment to the use of such children as tenants in common in tail, with cross-remainders between them, with an ultimate remainder to the use of Lord Maynard in fee; and certain copyhold estates were settled by way of trust in a similar manner; and two sums of stock were vested in trustees upon trust for Lord Maynard for life, and after his decease for the children of the marriage, as he should appoint, and in default of appointment for such children equally, the shares of the sons to be vested at twentyone, of the daughters at twenty-one or marriage. There were five children, one son and four daughters, of the marriage who attained twenty-one. One of them died in February, 1865, without issue, and another of them, Charlotte, in the year 1834 intermarried with Adolphus Capel; no settlement was made upon the marriage, and as there had been issue of the marriage, Adolphus Capel was by the curtesy tenant for life of the real estate. Charlotte Capel and her husband were still living. In 1850, and again in 1855, Adolphus Capel took the benefit of the Insolvent Debtors Acts then in force, and all his property became vested in Mr. Stansfeld, as provisional assignee. Lord Maynard, by his will, dated the 29th of April, 1843, gave to Mrs. Capel an annuity of 1,2007. a year for her life, for her sole and separate use, and he declared that the provision made by his will for his son and daughters should be accepted by them respectively in full for any share or interest they might have in the property comprised in his marriage settlement, and that they respectively should execute such instruments and do such other acts as his trustees might think requisite for relinquishing such shares, it being his wish and intention that the same settlement so far as regarded his son and daughters, and any interest thereby given to them, should be annulled and made void. The general residue of the testator's property was given to the trustees upon certain trusts in the will mentioned. Lord Maynard died on the 19th of May, 1865. The share coming to Mrs. Capel under the settlement was of much less value than the annuity given to her by the will, and, besides, was not secured to her separate use. Mrs. Capel had therefore declared that she accepted the annuity in full of her share and interest under the settlement, and that she was willing to do all necessary acts for relinquishing the latter to the trustees of the will. The assignee of her husband, however, alleged that all the interest which Mrs. Capel or her husband in her right took under the settlement was now vested in him, and he disputed Mrs. Capel's right to oust or disappoint him or Mr. Capel's creditors by her election. Mr. Capel was willing to concur with his wife in executing a disentailing deed. This was a petition by the trustees, praying, amongst other things, a declaration as to the course which they ought to take in reference to Mrs. Capel's annuity. Mr. Rolt and Mr. Faber, for the petitioners. Mr. W. M. James and Mr. Freeling, for Mrs. Capel. It is clearly for Mrs. Capel's benefit to take under the will in preference to the settlement, and the Court will elect for her accordingly. Mr. Osborne and Mr. Briggs, for the assignee of Mr. Capel.-As to the personal property comprised in the settlement, we admit that it is subject to the wife's equity. The Court may therefore give up for her whatever it would settle upon her and her children. As to the real estate, however, the case is different, for the limitations of the freeholds are legal and the estate of the husband in right of his wife is actually vested in the assignee, and the Court cannot compel him to convey away his estate. Pulteney v. Lord Darlington, 7 Bro. P.C. edit. Toml. 546, 547; s. c. 2 Ves. jun. 544, 560. Gretton v. Haward, 1 Swanst. 409, see p. 413, note. Brodie v. Barry, 2 Ves. & B. 127. 1 Roper on Husband and Wife, p. 30, note (2nd edit.). Mr. Amphlett, Mr. Walford, Mr. Schomberg, Mr. Dewsnap and Mr. M. W. Hunter, for other parties. Mr. W. M. James was heard in reply to the argument of Mr. Capel's assignee. WOOD, V.C.-As to the personal estate, subject to the settlement, it is not reduced into possession, for the fund is outstanding in trustees. The Court can, therefore, lay its hands upon this fund and say, that, as the benefit of the wife requires, it must be made over to the trustees of the will. But as to real estate, I cannot divest the estate of the assignee. To that extent, therefore, the Court is unable to elect on Mrs. Capel's behalf in favour of the will, and she must therefore, to that extent, make compensation to the trustees of the will. The minutes declared that Charlotte Mary Capel, electing to take the annuity of 1,2001. a year, under the will of Henry, late Lord Maynard, her election should be without prejudice to the interest of the assignee in respect of the marital right of her husband. Solicitors-Messrs. Walker & Jerwood, for petitioners (the defendants in both suits); Messrs, Capron, Brabant & Dalton; Mr. A. H. Clapham; Messrs. Ellis & Ellis; Messrs. Hunter, Gwatkin & Hunter; Messrs. F. H. & H. H. Walford; Messrs. Walker & Twyford, for parties served with petition and notice of decree. { GRIGGS v. GIBSON. No. 2. WOOD, V.C. A power of charging the inheritance given under a will to a tenant for life, who dies before the testator, cannot be exercised by such tenant for life under the 33rd section of the Wills Act. Henry, late Lord Maynard, by his will, dated the 29th of August, 1843, devised his real estates to the use of his son Charles Maynard for life, with remainders over. The will provided that it should be lawful for the said Charles Maynard, at any time during his life, and for every other person thereby made tenant for life of the said estates, as and when they respectively should be entitled to the possession or to the rents and profits of the same estates, by any deed, or by their respective last wills, or any codicil or codicils thereto, to appoint unto all or any of their respective children, and whether he, she or they should then have attained the age of twenty-one years or not, any annual sum of money not exceeding 4001. for each of such children, to be issuing out of and charged upon all the said estates, and to be paid to such children during their respective lives. And the said Charles Maynard was further empowered to limit a term to trustees for better securing the payment of such annuities. The said Charles Maynard, by a codicil, dated the 1st of December, 1864, after reciting that his father, Lord Maynard, who was then living, but who had authorized |