t. LANE.

MACLURCAN these tithes was a mention of property as to which there was a then present interest in the covenantor; and it was a perfectly legitimate argument, to the extent to which it might be made available, to say, that if it were necessary expressly to except property as to which there was a present right, though only arrears were recoverable, the language must have pointed at property of that description, which would have been included if it had not been expressly excluded. That was of considerable weight. Then, as to the rest, the jumble of the words "shall or may" and "be or become" was such as, no doubt, upon a strict construction of the words, to be read reddendo singula singulis, would lead to this interpretation, "shall be seised or may become seised or possessed;" but, reading the words in their natural order, they were, "shall or may at any time be or become;" and if the words "shall or may at any time be or become " were read in their natural order, the word "may came before the word "be." It was very well to say, that, reddendo singula singulis, the use of the word "become" gave a sense of futurity to all; but, taking the words as they stood, "may be possessed," they would apply to any property which might be acquired in possession; and the reference to "arrears of tithes ' seemed to sanction that view. It was perfectly clear that the language of the recital was more ample in terms than that of the covenant. It recited, in an instrument under seal, what the parties proposed to do; and if under an instrument, they had failed to carry out an intention clearly expressed. According to what he understood to be the legitimate principle of interpretation, an effect must be given to that language which was the largest and widest in its scope. Suppose the matter were reversed, and that in the recital there was a limited expression, and that by the Act itself the words were enlarged, then, by a settled rule of construction, you were not to cut down the language of the covenant by referring to the recital. In like manner, if the recital was of an intention to act in a much larger and wider way, and to embrace property clearly indicated by a covenant to be found in a subsequent part of the deed, if that covenant fell short of what was deliberately recited, the true principle of construction was to give effect to that interpretation which should be sanetioned by a clear recital. During the argument he referred to that great repository of learning, Sheppard's Touchstone, and there he found that which he thought authorised him to read this covenant with the assistance of the recital in this instrument, and, so reading it, to come to the conclusion, that if this estate, which was now become vested in fee, was not devested by the

LANE.

[60]

father, and came to the covenantor, it was an estate which MACLU RCAN accrued to him upon the death of his father, who must be held to be included in the expression, "of any person or persons whomsoever;" that it must be held subject to the effect of the covenant, and was therefore bound by the trusts of the settlement, i.e. as to one moiety. Now, he saw that by a decree there was a declaration already that the effect of this covenant was to create a lien or charge upon all the lands. That declaration was not sought to be disturbed, and he must follow out the principle of the decree by considering that the creditors. could not now succeed in extricating from the effect of this covenant a moiety of this estate, which was an estate tail in remainder at the date of the settlement, but which upon the death of the father became an indefeasible estate in possession, and which for the first time accrued to the son upon the death of his father. Perhaps he ought to say, that, speaking with most unfeigned respect of the recorded decisions of other Judges, the reported case of Blythe v. Granville certainly appeared to him to be a case well decided. It was a case upon the property of a wife, and a case in which the late VICECHANCELLOR OF ENGLAND came to a conclusion upon grounds which he distinctly stated. He said, with perfect justice, upon the view of the settlement, "It is plain that what the parties to the settlement meant to do was to deal with all the wife's property that was in a tangible shape at the time of the settlement;" and they meant that all her other property should be "settled in like manner, when it should be in a tangible shape." Every one must feel that to bring under the operation of the settlement property not tangible, and as to the tangibility of which there might be some doubt, was not always a wise and judicious course of proceeding. But until the recent criticism upon it occurred, he never heard that there was any doubt thrown upon the case, or upon the principle of the decision. upon which it went, which was the principle of giving a clear interpretation of the language of the instrument as indicated by the intention of the parties. Whether the criticism passed upon Blythe v. Granville was in any other sense well founded. it was not for him to say; but finding that that decision had been discountenanced by a learned Judge, he was bound to say that he really was not struck with anything which had been said as showing that Blythe v. Granville was improperly decided.

R.R.-VOL. CXV.

63

1858. Dec. 3.

WOOD, V.-C. [116]

GOOLD v. TEAGUE (1).

(5 Jurist, N. S. 116-117; S. C. 7 W. R. 84; 32 L. T. O. S. 251.)

A testator, by his will, gave and bequeathed to trustees his "leasehold estates and securities for money." Prior to the date of the will he was owner of certain leasehold property, but at the date of the will he had contracted to sell it, the purchasers, until completion, becoming his tenants at an agreed rent: Held, that the leaseholds contracted to be sold did not pass by the will to the trustees, either as leaseholds or as securities for money."

DEMURRER. The point raised was upon the will of the testator in the cause, and the question was, whether, under a bequest of all his leasehold estates, and monies in the funds, and securities for monies, which he might die possessed of, certain leaseholds, which at the time of his will were under agreement for sale, passed. Thomas Mitchell, the testator, made his last will, dated the 6th November, 1812, which, so far as is material, was as follows: "All my leasehold estates, and the monies in the funds, and securities for monies, which I might die possessed of, I give and bequeath unto Edward Cooke and William Griffin, and the survivor of them, his executors or administrators, upon trust, nevertheless, that they, my said trustees, or the survivor of them, or the executors or administrators of such survivor, do and shall, out of the rents, interests, profits, and proceeds thereof, pay unto my dear mother Elizabeth Mitchell the clear annuity or annual sum of 401., which I hereby direct to be paid to her for her life, monthly; and all the rest and residue of the profits, proceeds, rents, interests, or dividends of my said estates, monies, or securities for monies, I direct my said trustees to pay unto my dear wife" (Edith Mitchell) "or her assigns, for and during her life; and in case she should survive my mother Elizabeth Mitchell, then I direct them, or the survivor of them, or the executors or administrators of such survivor, to pay the said annual sum of 401. hereinbefore directed to be paid to my said mother during her life, to her, my said dear wife, for and during the term of her natural life, (for her separate use); and upon this further trust, that they, the said Edward Cooke and William Griffin, or the survivor of them, his executors or administrators, do and shall, after the death of my said dear wife, pay unto Susan Collins, for and during her life, all the rents, profits, proceeds, dividends, and interests of my said estates and monies herein before given and directed to be paid to her, my said wife; and also, from and after the death of my said dear mother, if she shall survive my said wife, I hereby direct my

(1) Questioned by CHITTY, J., who held that a vendor's lien for unpaid purchase-money might pass under a

bequest of "securities for money": Callow v. Callow (1889) 42 Ch. D. 350, 58 L. J. Ch. 698.-O. A. S.

said trustees or trustee for the time being to pay unto the said Susan Collins (during her life) all the proceeds, dividends, and interests of monies which I have hereinbefore given and directed my said trustees to pay my said mother, so as the said rents, profits, proceeds, dividends, and interests of such monies shall not be subject or liable to the debts or management, control or disposition, of any husband of her, the said Susan Collins; and upon this further trust, that they, the said Edward Cooke and William Griffin, or the survivor of them, or his executors or administrators, do and shall, immediately after the death of them, the said Edith Mitchell and Susan Collins, divide equally all and singular my said estates and monies between and among the child or children (if more than one) of her, the said Susan Collins, that shall be living at her decease, and Thomas and Edith Mitchell. And my will is, and I hereby direct my said trustees, that in case there should not be any child or children of her, the said Susan Collins, living at the time of her death, that they, my said trustees or trustee, do and shall, out of the monies which shall be in their hands, pay unto the said Thomas and Edith Mitchell the sum of 100l. each, and divide all the rest and remainder of my said estates and monies, and securities for monies, equally amongst all and every my next of kin." In the month of April, 1808, an agreement was executed by the testator and John Good for the sale to the latter of certain leasehold premises, being a portion of the leaseholds in question in this suit. That agreement, after stating the title of Mitchell, recited that Good had agreed with Mitchell for the purchase of the premises, and that such purchase was to have taken place as from the 5th April then last, but that, Mitchell having lost one of his title deeds, Good had refused to complete. It was then agreed between the parties that Mitchell would use his utmost endeavours to find the deed, and would, on payment of the purchase-money, so soon as the deed should be found, execute an assignment of the premises to Good for the residue of the term then vested in Mitchell; and it was further agreed, that until Mitchell could produce the missing deed, it should be lawful for Good to occupy the premises, paying therefor the yearly rent of 14l. 14s. In the month of May, 1808, an agreement was executed by the testator and Thomas Richardson for the sale to the latter of the remaining portion of the leasehold premises in question in this suit. This agreement was, mutatis mutandis, in the same. terms as the agreement with Good. By an order dated the 19th January, 1857, and made in a cause of Seager v. Fisher, and In re the Trustee Act, 1850, the plaintiffs were appointed

GOOLD

v.

TEAGUE.

[117]

GOOLD v.

TEAGUE,

trustees of the will of Thomas Mitchell, and the leasehold estates then subject to the trusts of the will, and the right to sue for any chose in action for the time being, subject to the same trusts, were vested in them as such trustees. On the 9th August, 1858, letters of administration with the will annexed were granted to the defendant Susan Teague. The sale to Richardson was in the year 1858 actually completed, and the sum of 1601. for purchase-money paid to the defendant Susan Teague. The agreement with Good was not completed by a sale, but in the year 1858 the party in whom the interest of Good was vested assigned such interest to the plaintiffs for 501. The plaintiffs contended that the leaseholds in question passed to the trustees of the will of Mitchell, and that they, as representing the original trustees, and by virtue of the vesting order, were now entitled to the 160l. paid on the completion of the sale to Richardson, and to the leasehold premises agreed to be assigned to Good, upon the trusts now subsisting therein under Mitchell's will. The defendants demurred to this bill, contending that the leaseholds did not pass by the bequest to the trustees.

Rolt, Q.C., and Southgate, in support of the demurrer: From the terms of the contract to sell there was a conversion of the leaseholds: Lawes v. Bennett (1), Townley v. Bedwell (2), Collingwood v. Row (3). They therefore did not pass under a devise of all the testator's leasehold estates.

Willcock, Q.C., and Faber, contrà:

Upon the entire will, the case falls within the reasoning of Drant v. Vawse (4), and the Court will therefore hold that the proceeds of the estate passed to the trustees. (Upon this point they referred likewise to Wall v. Bright (5).) But apart from this, the testator uses the words "securities for money," which are large enough to carry the proceeds.

Sir W. P. WooD, V.-C., considered the case concluded by the authority of Lawes v. Bennett, and the other cases of that class. A general devise of leaseholds would not pass leaseholds contracted to be sold. In this case there was simply a general devise of the testator's leasehold estate. At the date of the devise the leasehold estate in reference to which this question arose was leasehold no longer, by reason of the rule of the COURT that the contract must be taken as if completed. had, however, been contended that the words "securities for

(1) 1 R. R. 10 (1 Cox, 167).

(2) 9 R. R. 352 (14 Ves. 590).

(3) 112 R. R. 435 (26 L. J. Ch. 649).

It

(4) 57 R. R. 459 (1 Y. & C. C. C.

580).

(5) 21 R. R. 219 (1 Jac. & W. 494).