JOYCE J. construed strictly. It must be taken away in as express and clear a way as it is given. 1909 PETRE'S SETTLEMENT TRUSTS, In re. LEGH v. PETRE. Hughes, K.C., and C. J. Mathew, for persons claiming under assignments by Philip, Lord Petre, in revocation of the settlement. On the death of Bernard, Lord Petre, Philip, Lord Petre, became tenant for life under the limitations of the Petre settlement and entitled to the actual possession of the Petre estate. His power of revocation therefore arose. It is true that under the deed of January 22, 1896, some one else became entitled in virtue of Philip, Lord Petre's right to receive the rents and profits during his life; still he himself was actually entitled in possession. This case is covered by the decision in Hogg v. Jones (1), where there was a gift of heirlooms by reference to the possession of real estate, and it was held that the heirlooms went to a person who was in fact deprived of the possession of the real estate by disentail. The use of the word "actual" does not necessarily advance the meaning of the word to which it is applied: Stroud's Judicial Dictionary, 2nd ed., p. 32. Any argument based on the cases under the Settled Land Act, such as In re Morgan (2) and In re Jones (3), may be illustrative but cannot be conclusive. The only document to be looked at is the original settlement of 1868, and the governing words are "under the limitations of the settlement." The power of revocation clearly arose. [They also referred to In re Lord Chesham's Settlement (4) and Vaizey on Settlements, p. 1349.] Hartree in reply. The cases as to heirlooms do not apply here. Cur. adv. vult. Dec. 7. JOYCE J. (after stating the facts). Upon the death of Bernard, Lord Petre, without issue, Philip, Lord Petre, became tenant for life in possession of the Petre estates, at least nominally if not actually. In ordinary language he did not become entitled to the possession of the estates, still less to the actual possession, because, if by "actual possession" physical possession is meant, upon the death of Bernard the person who (1) (1863) 32 Beav. 45. (3) (1884) 26 Ch. D. 736. (2) (1883) 24 Ch. D. 114. (4) [1909] 2 Ch. 329. 1909 PETRE'S TRUSTS, became entitled to such actual possession and the receipt of JOYCE J. the rents and profits of the estates was the assignee under the deed of assignment of 1896. But the words in the proviso creating the power of revocation are "shall become entitled," SETTLEMENT and so on, "under the limitations contained in the Petre settlement or and any resettlement of those estates," those words "under the limitations of the Petre settlement or any resettlement" limit and qualify the expression "actual possession." Now if Philip, Lord Petre, had purchased the previous life estate of Bernard, Lord Petre, he would have been entitled to the physical possession; but would he have become entitled to the possession of the estates "under the limitations of the Petre settlement"? Having regard to the case of Truell v. Tysson (1), to which I think my attention was not called by any counsel who argued before me, I think it would be difficult to say that, in the event which I have supposed, Philip, Lord Petre, would not have become entitled to the possession of the estates under the limitations of the settlement; but it could not possibly have been intended that the existence of this power of revocation should be accelerated in any such way as that, namely, by the purchase by Philip, Lord Petre, of the previous life estate of Bernard, Lord Petre. I observe that in a previous clause of this document, a clause with reference to the division amongst the children in default of appointment of the funds forming the subject of the settlement, this fund is not to go to all the children, but to the children with an exception; and there is excepted, amongst other children, any child who before attaining the age of twenty-one "becomes entitled to the first vested estate of freehold in remainder immediately expectant on the estate for life of the said Philip Benedict Joseph Petre under the said settlement, provided the said Philip Benedict Joseph Petre had become entitled to the actual possession or to the actual receipt of the rents and profits of the Petre estates." Upon consideration I think that clause does not assist me, because I strongly suspect the words "under the limitations of the (1) (1856) 21 Beav. 437. LEGH PETRE. JOYCE J. settlement have per incuriam been there left out. Another observation I must make is that under this power of revocation, 1909 PETRE'S if Philip came into the actual possession, whatever that meant, SETTLEMENT for a single day, he could then have revoked the trusts of the husband's trust fund. TRUSTS, In re. LEGH Now it appears (I am quoting from Vaizey on Settlements, p. 1349) that "In several cases tenants in tail in remainder were treated as persons entitled to the possession, so as also to entitle them to personalty, which was in one case to be enjoyed by the persons successively entitled to the possession of the settled realty," &c.; and Mr. Vaizey suggests the addition of the word "actual" and the use of the expression "actual possession" with the idea of preventing any such result as that. Having regard to all this, and to what was said in the judgment in Hogg v. Jones (1), which was cited to me, upon the whole I think that "entitled to the actual possession under the limitations" means here entitled to such possession, looking to the terms of the settlement, and not regarding anything else. I think that the purchase of a previous life estate would not confer such actual possession as would be required to entitle Philip, Lord Petre, to exercise this power; and that a previous mortgage or assignment by Philip, Lord Petre, of his life interest would not prevent his becoming entitled to the actual possession under the limitations within the meaning of that term as used in this clause conferring the power of revocation. Upon the whole, therefore, though it may appear somewhat strange at first sight, I think that Philip, Lord Petre, did, upon the death of Bernard, Lord Petre, without issue, become entitled to the actual possession of the estates under the limitations of the Petre settlement, although there had been a previous assignment by Philip, Lord Petre, of his life estate, and I think that upon the true construction of the marriage settlement the power of revocation consequently arose. Solicitors Simpson & Bowen; Witham, Roskell, Munster & Weld; Fooks, Chadwick, Arnold & Chadwick. (1) 32 Beav. 45. G. A. S. NOTTIDGE v. DERING. [1909 N. 632.] RABAN v. DERING. [1909 R. 781.] Settlement-Tenant for Life-Power to appoint Portions—Disentailing Deed— Under a marriage settlement made in 1832 estates stood limited in 1854 to the use of A. for life, remainder to the use of trustees for a long term of years to secure 20,000l. as portions for the younger children of the marriage, with remainder to B. (A.'s eldest son) in tail male, with remainders over; and the settlement contained a power for A. by deed or will to appoint the further sum of 10,000l. as portions for younger children. In 1854 B., with A.'s consent, executed a disentailing assurance by which the estates were assured (subject to the uses and estates created by the settlement anterior to B.'s estate tail and to all powers to such precedent estates annexed) to such uses as A. and B. should by deed jointly appoint. Thereupon A. and B., in exercise of their joint power, created a mortgage over the estates; they also created a further mortgage over the estates partly by the exercise of their joint power and partly by a grant of A.'s life estate. In each case, upon the construction placed by the Court upon the mortgages, the lands were assured by the operative part subject to the power to appoint the further sum of 10,000l. as portions. Each mortgage contained a joint and several covenant by the mortgagors for quiet enjoyment," and that free and clear and freely and clearly acquitted and exonerated or released" or otherwise indemnified of, from, and against (inter alia) former or other gifts, leases, jointures, portions, and all other incumbrances whatsoever. A. died, having by his will charged the estates with the further sum of 10,000l. as portions for younger children. Questions of priority having arisen as between these further portions and the mortgages:— Held, that the covenant for quiet enjoyment did not enlarge the operation of the security and did not amount to a release by A. of his power to appoint further portions; and therefore that the further portions had priority over the mortgages. Scrope v. Offley, (1736) 1 Bro. P. C. 276, distinguished. APPEAL from a decision of Neville J. upon a special case. (1) By an indenture of appointment and release (hereinafter called "the settlement") dated April 7, 1832, being the settlement executed on the marriage of Sir Edward Cholmeley Dering and (1) [1909] 2 Ch. 647. Y VOL. I. 1910. 1 C. A. 1910 Jan. 27, 28; C. A. 1910 v. DERING. RABAN v. DERING. Dame Jane Dering, estates in the county of Kent were limited (subject as to a part thereof to a yearly rent-charge of 1000l. then NOTTIDGE previously limited to Dame Henrietta Geary for her life and to a term of 400 years for securing the same) to the use of Sir E. C. Dering for his life, with remainder to uses limiting to Dame Jane Dering a yearly rent-charge of 12007. if she survived her husband and a term of 300 years to trustees for securing the same, with remainder to trustees for a term of 600 years from the death of Sir E. C. Dering, with remainder, subject to the said yearly rent-charge of 1200l. and to the two terms of 300 years and 600 years and to the trusts thereof respectively, to the use of the first and every son of the marriage successively in tail male, with remainders over. The trusts of the term of 600 years were to levy and raise 20,000l. as portions for the younger children of the marriage, and the settlement also contained a power for Sir E. C. Dering at any time to charge the settled estates with the further sum of 10,000l. for portions for the younger children of the marriage as he should by deed or will appoint, and to limit any term of years upon trusts to raise the same by sale or mortgage. The settlement also conferred upon Sir E. C. Dering a power to jointure a future wife and to charge portions for the children of a future marriage and the usual powers of leasing. By a supplemental settlement dated May 5, 1832, certain other estates in the county of Kent were settled to the same uses and upon and for the same trusts and subject to the same powers as were in and by the settlement limited and contained concerning the estates comprised therein. There was issue of the marriage E. C. Dering, who was the eldest son, and several other children. E. C. Dering attained the age of twenty-one years on July 21, 1854. By a disentailing deed dated October 30, 1854, which recited (among other things) the power to raise the further sum of 10,000. for portions, E. C. Dering, with the consent of his father, Sir E. C. Dering, as protector of the settlement, granted unto Francis Geary and Julius Deedes, their heirs and assigns, all the estates then subject to the settlement and supplemental settlement of 1832 (but subject to the rent-charge of 1000l. to |