executors, administrators or assigns, should sustain, expend, or be put to for or by reason of the non-payment of the said yearly sum of £50 or £200 (as the case might be), or any part thereof respectively, at the days or times and in manner thereinbefore mentioned for the payment thereof, and should pay, and apply, and dispose of the same monies accordingly. And upon further trust that they, the said Samuel Robert Topping and Robert Loosemore, or the survivor of them, or the executors, administrators and assigns of such survivor, should permit and suffer the said William Knapman, his heirs, appointees, executors, administrators or assigns respectively, to receive and take the residue or surplus of the rents, issues and profits of the said several freehold or leasehold here-[128]-ditaments and premises. And the settlement contained a proviso for cesser of the term on satisfaction of the said trusts. The marriage was shortly afterwards solemnised. William Knapman died in August 1835, having by his will confirmed the jointure of £200 to his widow, and devised the estates, subject thereto, to his son, Henry Knapman, whom, together with the said Sarah Knapman, he appointed executor and executrix of his will. From the testator's death until the death of Henry Knapman, in July 1840, Sarah Knapman received the rents of part of the hereditaments, but not to a sufficient amount to satisfy her jointure during those years, and considerable arrears were due to her in respect thereof at the time of her death in March 1852. Sarah Knapman died intestate, and John Loosemore became her legal personal representative, and also the administrator de bonis non, &c., with the will annexed of William Knapman, her deceased husband. John Loosemore filed the bill in this suit against the trustees of the settlement of 1833, and against Mary Knapman, who, as devisee of all the real estate of Henry Knapman, was beneficially entitled to the hereditaments and premises comprised in the settlement, subject to the jointure, insisting that these hereditaments were primarily liable to the jointure, and praying for an account, and that Mary Knapman might be decreed to pay to the Plaintiff what should be found due, upon taking such account, in respect of the jointure. Mr. Rolt, Q.C., and Mr. Elwin, for the Plaintiff. The jointure is primarily charged on the real estate. The rule is without exception, that where the real estate is charged with the payment of a gross annual sum, and the consideration for the charge has not increased the per-[129]-sonal estate of the owner, the real estate is the primary fund, whether there be a covenant by the owner to pay the annuity or not. In Lanoy v. The Duke of Athol (2 Atk. 444) Lord Hardwicke says, "Though there is this covenant, it is truly said by the Defendant's counsel that the personal assets are not the original fund charged, and in that respect differs from a mortgage or any other incumbrance; for, there being a borrowing and a lending in the case of a mortgage, the real estate is considered only as a pledge, and the personal estate, which is the natural fund, is liable in the first place; but this rule has never been carried so far as to extend it to a provision upon a settlement:" Lechmere v. Charlton (15 Ves. 193), Graves v. Hicks (6 Sim. 398). Mr. Glasse, Q.C., and Mr. G. Lake Russell, for the Defendants. The personal estate is primarily liable to this annuity. The covenant of the settlor to pay the annuity created a debt against his personal estate, and throws the onus of proof upon those who contend that the personal estate is not first liable. The cases cited were principally cases of portions, in which, of course, the real estate is the primary fund, because, from the very nature and name of a portion, it is obviously part of the real estate itself which is divided in this manner among children; but the same consideration does not apply to a jointure. Lanoy v. The Duke of Athol (2 Atk. 444) was the only case in which the charge was of an annuity, and there the real estate was limited "to the use that" the annuitant should receive the annuity, and no doubt powers of distress and entry were given, so that the annuitant might have gone to the tenants occupying the land, and demanded the rents. But here the recital in the deed is only of an agreement to secure the [130] jointure "in manner thereinafter expressed;' and that manner is, by a demise to trustees for a term, upon the trusts thereinafter mentioned, and then, first of all, there is a covenant by the settlor for payment of the jointure on certain specified days; next, the primary trust of the hereditaments is for the settlor until forty days after default in payment of the annuity, and then upon trusts for securing the annuity; so that, not only had the annuitant no legal interest in the lands, but she had positively none at all until forty days after default in paying her jointure. The reply was not called for. THE VICE-CHANCELLOR [Sir W. Page Wood]. I think, although there is a distinction to be found in the cases, that I am bound on principle to hold that this is a charge primarily on the real estate. First of all, there is the decision of Lord Hardwicke in Lanoy v. The Duke of Athol (2 Atk. 444). I believe there are prior cases, but that is the leading case on the subject. He says in effect that, although where there is a covenant for payment the personal assets are first charged, this is not extended to provisions in a settlement; and the ground must be that which is pointed out in the argument in Lechmere v. Charlton (15 Ves. 193) that, in a security of this description, there is not any benefit accruing to the personal estate of the party who is the debtor, but the whole arrangement is merely for the purpose of securing a jointure or portion; and, the personalty not having received any benefit, the true intent is that the real and not the personal estate should be the primary fund. That was the ground of the decision in Graves v. Hicks (6 Sim. 398). In that case there was an agreement [131] to secure a sum of £6000 by way of mortgage; and the Vice-Chancellor takes a distinction which is nice, but of some importance, as to what would have been the effect if the wording there had been different-if it had been an agreement to pay and not to secure the £6000. (See 6 Sim. 403.) The use of the word 66 pay" might have been evidence of an anterior debt, as the question was whether it was a debt at the time of the settlement. That question is asked here, and the answer must be that no debt then existed. Then the question arises-which is the only difficulty occasioned by the peculiarity of this case-whether the form of the settlement is such as to indicate an intention that the personal estate is to be the primary fund; for such an intention must be expressed in the deed, if the principle is that, there being no benefit to the settlor's personal estate, as between his real and personal representatives an intention is not to be prima facie imputed to him, of securing the debt on his personal estate. But the intention appears to me to be upon the whole frame of the deed, to make a charge by way of mortgage on real estate, as a provision by way of a settlement, which, as in Graves v. Hicks (Id. 398), must make the real estate the primary fund, unless clear evidence to the contrary be found in the deed. If the deed had contained a recital that, "whereas on the said marriage William Knapman had agreed to secure an annuity of £200 by way of mortgage, the case would have been identical with Graves v. Hicks (Id. 398). That, however, is not the recital, but it recites an agreement to secure the annuity "in manner hereinafter expressed." If the settlor had said I intend to secure it by way of mortgage, the deed would have been in this form: There would have been a covenant to pay the annuity, and a term created to secure it; and the deed would have contained a proviso that the mortgagor should hold until default, which is the common [132] form of deeds of mortgage. No question could then have arisen. The case would have been like Graves v. Hicks (6 Sim. 398). But the recital is merely that the security is to be made "in manner hereinafter expressed;" and the form of the deed is this: There is first a demise for a term upon the trusts thereinafter mentioned; and then there is a covenant to pay the jointure annuity at certain fixed periods; and then a trust to allow the settlor to hold until default, and forty days after default to raise the money. It occurred to me that the Defendants might say, supposing the lady, or her executors, to have sold before the forty days had elapsed, and to have been fortunate enough, by the effect of the proceeding, to have recovered the annuity, could the executors urge that the money was to be raised out of the land? The answer to that would be that the Court considers that the essence of the transaction is a mortgage, and the principle of Lanoy v. The Duke of Athol (2 Atk. 444) would apply, namely, that where the personal estate takes no benefit the election of a third party to sue upon the covenant would not disturb the equities of the parties; and although the personalty was obliged to pay the money before actual default, yet the real estate, and not the personal estate, was the primary fund out of which it should come. I observe that the learned editor, in Lechmere v. Charlton (15 Ves. 196), has printed the following part of the argument in italics :-"The cases in which the personal estate is applicable in exoneration of the real estate are all cases where a personal debt is contracted, by which the personal estate has been augmented and the real estate was only pledged." Probably the reason for doing so was that that part of the argument shews the principle upon which the decision rested. I do not, however, rely upon that, but upon the decision in Lanoy v. The Duke of Athol (2 Atk. 444), and the view which the ViceChancellor took in asking, in Graves v. Hicks (15 Ves. 196), [133] whether any debt was due at the time? Asking the same question here, and it appearing that there was no debt, and no augmentation of the personal estate, I must hold, according to the authorities, that the transaction is to be regarded as a security made by the settlor upon his marriage, in which, his personal estate taking no benefit, the onus is thrown upon those who wish to make it liable to shew some reason for doing so. [133] In the Matter of THE TRUSTS of the WiLL OF JOHN COLSON. In the Matter of THE TRUSTEE RELIEF ACT, 10 & 11 VICT. c. 96. Nov. 5, Dec. 9, 1853. [S. C. 2 Eq. R. 257; 23 L. J. Ch. 155; 2 W. R. 111.] Will. Construction. Enjoyment of Repairing Fund accelerated by barring the Entail in the Estates. A testator bequeathed a sum of stock to trustees, upon trust, during sixty years from his death, if the law should allow, or, if not, then during the lives of his two sons and of the survivor, and twenty-one years after his death, to lay out the dividends in repairing and insuring the houses, &c., on his farms, called H. and S. (it being his desire that upon no account should the timber of such farms be cut down during the said term of sixty years, on pain that the person so cutting such timber should lose all interest in the said estates as if he were dead), and upon trust to pay the surplus, if any, of the said dividends equally among the persons for the time being in possession of the estates under his will, during the continuance of the said trust; and immediately after the expiration thereof to transfer one moiety of the said stock to the person then in possession of the H. farm, such person being one of his sons, or a descendant of a son; but if not, then to the descendants of the testator's brothers and sisters, and to pay the other moiety in like manner to the person in possession of the S. farm. And the testator devised the H. farm to the same trustees, in fee, upon trust for his son John, for ninety-nine years, if he should so long live, remainder to the use of his first and other sons in tail, with divers remainders over. And the testator devised the S. farm in like manner for the benefit of his son James and his issue. John and James, and their eldest sons, barred the entail in remainder in the said farms and resettled the same, and, the stock having been transferred into Court under the Trustee Relief Act, petitioned for the payment out of the fund to them. Held, that the fund being intended for the benefit of the sons and their issue, the period for the enjoyment of the capital had been accelerated by barring the entail, which had determined the restriction against cutting down timber. John Colson, by his will dated the 8th of November 1817, appointed Wilson Dormer, William Lampard, John Killow and George Doswell executors and trustees thereof; and he thereby bequeathed the sum of £2000 £5 per cent. Bank annuities, if he should have such stock at the time of his death, and, if not, then such stock to be [134] purchased out of his personal estate, unto the said trustees, their executors, administrators and assigns, upon trust, yearly and every year, for the term of sixty years, to commence and be computed from the day of his death, if the rules of law would so far permit, but if not, then during the lives of his two sons thereinafter named, and the life of the survivor of them, and the period of twenty-one years from the death of such survivor, to pay, lay out and expend the interest, dividends and annual produce arising therefrom, or such part thereof as might be requisite and necessary, in and towards keeping the dwelling-houses, buildings, gates and fences of his freehold estate, called Hall Court Farm, and his copyhold estates, called Stredfield Farm and Row Ash Farm, in the parish of Droxford in the county of Southampton, in good and substantial repair, and in insuring the same dwelling-houses and buildings respectively against fire; it being his will and desire, and he thereby directed, that upon no account or pretence whatever the timber or trees standing or growing upon the said freehold and copyhold estates should be cut during the said term of sixty years by the person or persons who, for the time being, would be entitled to the said estate, on pain that the person or persons who should cut such timber, or any part thereof, or cause the same or any part thereof to be cut, should thereby lose all interest, benefit and advantage in his estate and estates as if he or they were from that time dead. And upon this further trust, that the said trustees, or the survivor of them, his executors and administrators, should, after keeping the said freehold and copyhold estates in perfect repair as aforesaid, pay and apply the surplus (if any) of the interest, dividends and annual produce of the said sum of £2000 £5 per cent. Bank annuities unto and equally between the persons who for the time being and who from time to time should be in possession of the said freehold and copyhold estates under and by virtue of that his [135] will, during the continuance of the trust aforesaid; and from and immediately after the expiration thereof, upon trust to pay, assign, transfer and set over one moiety of the said sum of £2000 £5 per cent. Bank annuities unto the person who should then be in possession of the said freehold estate, called "Hall Court Farm," or the rents and profits thereof, under and by virtue of that his will, provided such person should be one of his said sons, or a descendant of either of his said sons. But in case such person, who should then be in possession as aforesaid, should not be one of his said sons, or a descendant of either of his said sons, then to pay, assign, transfer and set over the same moiety unto and equally between the descendants of his brothers and sisters then living, per capita, and not per stirpes, to be equally divided between them, share and share alike. And upon further trust to pay, assign, transfer and set over the other or remaining moiety of the said sum of £2000 £5 per cent. Bank annuities unto the person who should then be in possession of the said copy hold estates called "Stredfield" and "Row Ash Farm," or the rents and profits thereof, under and by virtue of that his will, provided such person should be one of his said sons, or a descendant of either of his said sons; but in case such person, who should then be in possession as aforesaid, should not be one of his said sons, or a descendant of either of his said sons, then to pay, assign, transfer and set over the same moiety unto and equally between the descendants of his, the testator's, brothers and sisters then living, per capita, and not per stirpes, to be equally divided, share and share alike. And the said testator thereby devised all his freehold messuage, tenement or farmhouse, lands, hereditaments and estate, situate in the said parish of Droxford, called "Hall Court Farm," to the said trustees and their heirs, to the use of his son, John Colson (hereinafter called John Colson, the father), for the term of ninety-nine years, if he should so long live, without [136] power either to cut timber or to do or commit any manner of waste whatsoever, but with full impeachment of waste; with remainder to the use of the said trustees and their heirs, during the life of the said John Colson, the father, upon trust to preserve contingent remainders; with remainder to the use of the first and every other son of the body of the said John Colson, the father, successively, according to seniority, in tail; with remainder to the use of the daughters of the said John Colson, the father, as tenants in common in tail, with cross-remainders amongst them in tail; with divers remainders over. And the said testator thereby also devised all his copyhold farmhouse, lands and hereditaments, called Stredfield Farm, situate in the said parish, to the said trustees and their heirs, to the use of his son, James Colson, without power either to cut timber or to do or commit any manner of waste whatsoever, but with full impeachment of waste; with remainder to the use of the first and every other son of the said James Colson, successively, in order of seniority, in tail; with remainder to the use of his daughters as tenants in common in tail, with cross-remainders amongst them in tail; with divers remainders over. The testator died on the 21st of January 1830; and the will was, on the 6th of May 1830, proved by the four executors. The testator, at the date of his will and at his decease, was seised of the Hall Court farm for an estate in fee-simple, and of the Stredfield farm for an absolute customary estate of inheritance, and was at his death possessed of the Row Ash farm for the residue of a term of 1000 years from the 8th of January 1778. The £5 per cent. annuities, bequeathed by the said will, were, during the said testator's life, converted into £4 per [137] cent. annuities, with the addition of a bonus of £5 per cent.; and a sum of £2100 £4 per cent. annuities, which had since been converted into £3, 5s. per cent. annuities, was accordingly appropriated and set apart to answer the said legacy of £2000 £5 per cent. annuities. By an indenture, duly inrolled in Chancery, and dated the 14th of April 1849, John Colson, the father, and John Colson, his eldest son, disentailed the Hall Court farm, and conveyed it to the use of such person and for such estates as the said John Colson, the father, and John Colson, the son, by any deed or deeds should direct, limit or appoint; and in default thereof, and subject thereto, to the former uses to which the said premises were previously subject. And by another indenture of even date the said Hall Court farm was settled to the use that John Colson, the son, should receive a yearly rent-charge of £100 out of the said estates; and, subject thereto, to the use of certain trustees for 500 years, to secure the same; with remainder to John Colson, the father, for life, with remainder to trustees to preserve contingent remainders, with remainder to John Colson, the son, for life, with remainder to trustees to preserve contingent remainders, with remainder to his first and other sons in tail male, with divers remainders over. By an indenture, dated the 24th of July 1830, John Colson, the father, assigned unto the said John Colson, the son, his executors, administrators and assigns, all the estate, interest, claim and demand of him, the said John Colson, the father, in the said sum of £2100 £3, 5s. per cent. annuities, and the interest, dividends and annual produce thereof. By an indenture, dated the 29th of March 1849, and duly inrolled in Chancery, the said James Colson and his eldest son, James Henry Colson, disentailed the said Stredfield [138] farm, and settled it with the appurtenances to the use of the said James Colson and his assigns during his life, and, subject thereto, to the use of the said James Henry Colson, his heirs and assigns for ever. The executors of the will of John Colson, the father, transferred the said sum of £2100 £3, 5s. per cent. Bank annuities into the name of the Accountant-General, under the provisions of the Trustee Relief Act. James Colson, James Henry Colson and John Colson, the son, now petitioned that the rights and interests of the Petitioners, and of all other parties, if any, interested in the said sum of £2100 Bank £3, 5s. per cent. annuities, and the dividends thereof, might be ascertained and declared; and that, in case the Court should be of opinion that John Colson, the son, was entitled to the corpus of one moiety thereof, the same might be transferred to him; but in case the Court should be of opinion that John Colson, the son, was entitled only to the dividends thereof, that he might be let into the receipt of the dividends of the lastmentioned moiety thereof; and in case the Court should be of opinion that James Colson and James Henry Colson were entitled to the other moiety thereof, that the same might be transferred to them, or as they might direct; but in case the Court should be of opinion that James Colson was entitled only to the dividends thereof for his life, that he might be let into the receipt of the dividends of the said last-mentioned moiety. Mr. Bagshawe, sen., and Mr. Platt, for the petition. [The Vice-Chancellor referred to Lord Barrington v. Liddell (2 De G. Mac. & G. 480), where an accumulation was directed for a certain time, and then a distribution after that time, and one [139] question was whether a division could be made immediately that the law stopped the accumulation; and Lord St. Leonards held that the time for division was not accelerated. Here the intention to prevent cutting the timber had been frustrated by barring the entail; and the question was whether the time for the enjoyment of the fund could be thereby accelerated.] Mr. Giffard, for some of the Respondents. Mr. Keene, for brothers and sisters, and descendants of brothers and sisters, of the testator; and Mr. Bagshawe, jun., for the executors and trustees of the will. |