the several claimants; which is done not because bond debts are payable out of the land, but only because such a course affords a more easy remedy to bond creditors. In [346] Morley v. Morley (1 Jur. (N. S.) 1097) the Lord Chancellor said: "The statute of Westminster gives the right to a judgment creditor to take, not the whole of the lands, but half of the lands in execution of the writ of elegit as it is called; but the right that a bond creditor has against the lands of the giver of the bond when he sues the heir, whether that be a right by statute or, as I believe it is, a right by common law, is a right to treat the heir as being a debtor, and to recover judgment against him on the debt, but limited in this way, that he is to take his execution from the lands that have descended upon the heir from the ancestor, and according to the form that is expressly stated in the judgment, and then upon that a writ of elegit issues to the sheriff, commanding him to inquire of what lands the ancestor died seised, and what descended to the judgment debtor, and of what lands the judgment debtor was seised at the time the writ was sued out, and those lands he was desired to extend and take in satisfaction of the debt. This being the nature of the legal rights of bond creditors, what is the course that this Court takes in respect of such debt? Why, I take it that this Court does not give, or affect to give, to such creditors, equitable rights, any more than it would to simple contract creditors, or to bond creditors in respect of the personal assets; and, although equitable rights are enforced in this Court, it is merely that this Court makes itself auxiliary to giving a more convenient redress, because it is intended to be practically the same, or that which they would all have got at law, if they had all sued concurrently."

I cannot, therefore, hold that this case comes within the 40th section of the 3 & 4 Will. 4, c. 27. If I did, I do not think that the person liable to pay under that section would be the tenant for life of the obligor's real estate for the purpose of holding a payment by him to have the effect of keeping the debt alive as a charge against the

estate.

[347] The bill must be dismissed, but, as the question is new, without costs. Mr. Willcock, Q.C., referred the Court to another case of Dundas v. Blake (11 Ir. Eq. 138).

[S. C. 2 Jur. (N. S.) 277. See Cockayne v. Harrison, 1872, L. R. 13 Eq. 434 ; Myers v. Washbrook [1901], 1 K. B. 362.]

Farming Stock. Legatee for Life. Profits Distinguishable. Bailiff.

Farming stock and implements of husbandry are not things que ipso usu consumuntur, and therefore a gift of them for life does not confer on the legatee for life the absolute interest in them.

A farmer bequeathed farming stock and implements of husbandry and residuary real and personal estate to trustees, upon trust to permit his wife to have the full benefit and enjoyment of the same for life, and then to sell them, and divide the proceeds among his children. The widow, after the testator's death, with the assistance of her son, who was one of the trustees and a legatee in remainder, carried on the testator's farm, and took additional land to farm on lease in the name of her son. On the death of the widow: Held, that the lease of the additional land, and the stock thereon, belonged to her estate, and the stock on the original farm to the estate of her husband.

Held, that the son was bailiff of the widow, and, on his making a claim to be beneficially entitled to the additional land and the stock thereon, which was not supported by any evidence proving a gift of it to or a purchase by him, he was made to pay the costs occasioned by such claim; but an inquiry was directed whether any and what sum was proper to be allowed him as bailiff.

Benjamin Wright, by his will and codicil, dated in 1826 and 1827 respectively, after directing that all his just debts, funeral and testamentary expenses and charges should be paid and discharged by his executrix thereinafter named; and, after certain

specific bequests, gave, devised and bequeathed all the rest, residue and remainder of his estate, both real and personal, whether in possession, reversion, remainder or expectancy, and parts and shares of estates, and all and singular his right, title and interest therein or thereto, and wheresoever the same might be situate, and of which he should or might die seised; and all his household goods and furniture, plate, linen and china, and household effects whatsoever, farming stock and implements of husbandry, debts, sum and sums of money, and securities for money and other the personal estate of which he should or might die possessed, unto and to the use of his son, the Defendant John Wright, his son-in-law, the Defendant George Groves, and the testator's wife Elizabeth, and [348] their heirs, upon trust that his said trustees, or the survivors or survivor of them, his heirs, executors and administrators, should permit and suffer his wife to have the full use, benefit and enjoyment of the same during her life, if she should so long continue his widow and unmarried; and from and immediately after the decease or marriage of his said wife, upon further trust to convert into money all and singular the estate and property thereinbefore devised and bequeathed to his said trustees as aforesaid; and, for that purpose, to execute all necessary contracts, acts, deeds and conveyances in the law whatsoever; and, upon further trust, to pay and divide the same money unto, between and amongst his son, the Defendant John Wright, his daughter, the Plaintiff Mary, the wife of the Defendant, George Groves, and his daughters, the Plaintiff Elizabeth, the wife of the Plaintiff, Jacques Husband, and the Plaintiff Frances, now the wife of the Plaintiff, Thomas Orton, and his son, the Defendant Benjamin Wright, in equal shares and proportions, and their respective executors and administrators; and he appointed his said wife his sole executrix.

The testator died on the 13th of October 1827, and his will and codicil were, shortly after his death, proved by the said Elizabeth Wright.

The only further facts which seem necessary to be stated for the purposes of this report, are the following:

Elizabeth Wright subsequently entered into possession of all the testator's property, and paid his debts, which exceeded the value of the whole property so given to her for life, including the farming stock and effects. The widow, therefore, received no advantage from her husband's assets; all the farming stock, however, remained unsold, and the widow therewith continued to carry on the farm. Afterwards, she took additional land adjoining to farm, on a leasee, in the [349] name of John Wright; and she, together with John Wright and two of her daughters, who were now Plaintiffs in this suit, lived together on the farms so occupied by her; and by degrees more farming stock was added to that left by the testator, to enable her to carry on the larger farm. The widow, moreover, changed the name which was on the farming stock and utensils of the testator, and put her own name upon them; and John Wright never, during her life, made any change in that respect, nor in any way, except that, on taking the larger farm in 1840, it was taken in his name, and he therefore became liable to the rent. Elizabeth Wright died on the 30th of June 1853, intestate. The Defendant, Benjamin Wright, took out administration to her. He and John Wright and the three female Plaintiffs were the sole next of kin of the said Elizabeth Wright.

The bill was filed to carry into execution the trusts of the will of the said Benjamin Wright, and to administer his real and personal estate, and also the personal estate of the said Elizabeth Wright, his widow.

The principal question that arose was, to whom the farms and farming stock thereon belonged on the death of Elizabeth Wright.

John Wright carried on the farm business after the widow's death, and now claimed to be beneficially entitled to the farm which was taken in his name, and to the stock upon it.

The arguments are sufficiently noticed in the judgment.

[350] Mr. James, Q.C., and Mr. Chapman Barber, for the Plaintiffs.

Mr. Daniel, Q.C., and Mr. E. F. Smith, for John Wright, cited Acheson v. Fair (3 Dru. & War. 512), Giddings v. Giddings (3 Russ. 241), Walker v. Woodward (1 Russ. 107).

Mr. Toller and Mr. Torriano, for the other Defendants.

[THE VICE-CHANCELLOR. I have a strong impression that this farming stock was the property of the widow. I do not think that I ought to allow the case to go to

law. The stock certainly was not the property of John Wright, who seems to have been bailiff of the widow, if not a trustee; and a question may arise whether he cannot claim something as bailiff for managing the farm.]

Mr. James, Q.C., in reply, cited England v. Downs (6 Beav. 269).
Judgment was reserved.

Feb. 21. VICE-CHANCELLOR Sir W. PAGE WOOD, after stating the facts and commenting on the evidence, proceeded to give judgment as follows:

The effect of the transactions seems to be that the widow remained at the time of her death the owner of the farm; and that John Wright was her bailiff, giving his services for the benefit of his mother and sisters and himself, who were all living upon this property, and were, during the widow's life, supported by means of it; and I think that, when the additional farm was taken, it was taken by the widow, and, as it was stocked by her, I must hold that the stock, as well as the farm, was hers.

[351] The legal points which arise upon these facts are peculiar, and present more difficulty.

The first question is on the effect of the bequest of farming stock to the widow for life, and a direction that, after her death, the whole should be sold without any direction for carrying on the business. I cannot think that the doctrine relating to things quae ipso usu consumuntur can have any application to a gift of farming stock. That doctrine applies to a personal use exhausting the subject of gift. I must regard the intention of the testator. He says nothing, it is true, about carrying on the business; but what could the widow have done with the property so given to her? Could she have sold it? It might have been sold with her consent; but, in that case, surely the income only of the proceeds must have been paid to the widow for life. That is, perhaps, begging the question of the application of the doctrine as to things quæ ipso usu consumuntur; but no case has been cited in which, the whole of the testator's farming stock having been the subject of the gift, that doctrine has been held to apply. Where all the wine in a house is given to one for life, of course the legatee for life may drink it. And there was a case in which carriage-horses were held to come within the same rule; but there the tenant for life had actually used them. Here, farming stock is given for the benefit of the testator's widow for life. She could not personally use it so as to consume it; the only use she could so personally make of it would be to sell it. By such a bequest the testator must, I think, have intended that his widow should have the use of the stock, contemplating that she would carry on the business of the farm with it. She might have allowed the stock to be sold, and have taken the income of the produce for life, leaving the capital to the legatees in remainder; or, if not, I must suppose that the testator contemplated that she would carry on the business; and if, in the course [352] of such business, it was necessary that any part of the farming stock should be sold, then the substituted stock would follow the course of the original subject of the bequest.

Then the difficult part of the case is this: The widow, being entitled to use this farming stock during her life for her own benefit, would of course be entitled to all the profits which she made by such use. She seems to have found the farm business profitable, and she extended it; and, instead of 60 acres, I find that she occupied 240 acres. Would it be just that the fruits of her personal labour should be added to the estate of the testator, when, certainly, if she had invested it in the funds, no one could say it was not her own? So, if she had bought an estate, or if she had taken another farm a few miles off, and had applied her surplus profits in stocking it, keeping sufficient stock on the farm of the testator to carry it on as usual, all that the legatees in remainder could have claimed would have been the stock on the sixtyacre farm, and not that which had been bought with the profits made by the labour of the tenant for life, any more than they could have claimed the money if she had invested her profits in the funds. Therefore, if the two farms which the widow occupied had been separate, no difficulty would have arisen on this point. The stock on the sixty-acre farm would then have belonged to the testator's estate, and the stock on the other farm would have been her own. England v. Downs (6 Beav. 269) does not assist me on this point. That was a case of a different character; Lord Langdale there felt the difficulty of the point which I have now to consider. A lady

Her

had settled to her separate use property in the nature of stock-in-trade. husband appropriated it, and applied it to his own use, it being in the nature of trust property; and Lord Langdale seems to have considered that, as the husband had done so, he could not as against his wife claim the accretions; but that the accretions of the trust [353] property must belong to the trust and that was all that he decided. Lord Langdale's words in his judgment in that case are: "Here the wife was entitled for her separate use; she might have received the profits of this trade, and either spend them or lay them out in increasing the capital. If she laid out those profits in increasing the capital, which would be for her separate use, could her husband at any time have the right to say that the increase of capital should be for his benefit, and not continue for the purpose for which she intended to increase the capital belonging to the trade? Mr. Chandless very forcibly put the case, how would it be as to the wife herself? If the wife herself had received the different sums of money which became due in the course of the business, and, instead of spending that money, had thought fit to lay it out in increasing the capital, would it not have been necessary for her to say, I intend this increase of the capital as a permanent investment for the benefit of the trust? I think that is a question of some difficulty. I do not think that is quite so clear as it has been considered to be in argument."

In this case the widow rightly took possession of the property. It was her property, to use, if she thought fit, for the purpose of carrying on the business; and having properly so used it, the question is, is the property to be treated as if it were simply trust property, in which case, if a trustee mixes the trust property with his own, he is bound to distinguish such parts of it as he claims to be entitled to. It is said the rule is the same in case of a person claiming to be the beneficial owner of property; and, no doubt, if there were a substantial difficulty in distinguishing the different parts of it, that would be the result. But I think that there is, in this case, a means of distinguishing it, though I shall have to put the parties to some expense in the mode of doing that, which must be the consequence of the course which they have taken in this matter.

[354] If the widow had simply carried on the farm, and with the surplus profits had stocked another farm, the stock on the original farm would belong to the testator's estate, and the other stock would be the widow's own. I think the same rule may be applied, and that I may make a declaration to the effect that the widow of the testator, having carried on the farming business of the testator after his death, and having therein employed the farming stock and effects bequeathed to her for life, and having also carried on the business on additional land which was afterwards taken in the name of John Wright, was entitled to all such farming stock and effects as, at her decease, were on the said additional farm, and would be properly attributable to, and would be fit and proper for the carrying on of, the farming business upon such additional land; but that the testator's estate was entitled to all such farming stock as was on the original land, and was proper for carrying on the farming business of the testator at his death. Then there must be an inquiry what, according to this declaration, should be taken to be the farming stock of the testator and of the widow respectively, and the respective values thereof at the time of the decease of the widow.

I now proceed to consider what are the rights of John Wright in this matter. It was argued that I ought to leave this question to be decided in an action of trover; but I think that such action, or any other proceeding at law, could not properly determine the specific rights of the parties in a case circumstanced like the present. To say nothing of the fact that the administrator has declined to proceed at law, the case seems to be necessarily one for the decision of a Court of Equity, and I have no difficulty in coming to the conclusion that John Wright was not the owner of any part of this property. I shall, therefore, declare that the farm on which the widow resided at the time of her death was occupied and farmed by John Wright as [355] bailiff or agent of the widow; and that the farming stock and effects thereon at the time of the decease of the widow formed part of her personal estate, and ought to have been sold at her decease. Inquire of what the stock and effects on the said farm now consist, because there may have been an alteration since her death; and then declare the same, that is, what it now consists of, including any accretions made to

the said stock and effects, as the same existed at the death of the widow, by means of the employment and use thereof by the said John Wright, ought to be deemed to be part of the personal estates of the testator and of the widow respectively, and ought to be apportioned between the two estates according to the respective values of such stock and effects at the death of the widow as shall have been apportioned to their said estates.

Another question is, what is to be done as to John Wright's position in respect of the property? I do not think it fair to exclude him from all compensation for carrying on this business; and I am of opinion that I should treat him as a bailiff for the widow, and not simply as her trustee, which character I think it is impossible to consider that he held. I shall therefore direct an inquiry, whether he has expended any money of his own, independently of his receipts as bailiff of the widow, in carrying on such farming business, and what is proper to be allowed him in respect of such payments. Then inquire whether he is liable for the rent or otherwise in respect of the said farm being taken in his name, and direct that he is to be indemnified against such liability out of the estate of the widow. Inquire whether any and what sum is proper to be allowed to the said John Wright for the management of the said business, regard being had to his having been maintained thereout, and to any excess of his receipts over his payments in respect thereof. Let all necessary accounts be taken for the purposes aforesaid. Appoint a receiver, with liberty to any of [356] the parties to propose themselves; because I do not wish to dispossess John Wright, if he can give proper security. Tax the costs of the Defendant, Groves, occasioned by this unfounded claim of John Wright to be the owner of the property, and order John Wright to pay those costs. Inquire whether any and what part of the testator's real estate has been sold since his decease, and by whom the produce thereof has been received, and how the same and every part thereof has been applied. Sell the rest of the testator's real estate. Take the usual account of the personal estate of the widow. Tax the costs of the Plaintiff and of the Defendant, Groves, of so much of the suit as was occasioned by the unfounded claim of the said John Wright to be the owner of the said farming stock and effects, and direct the said John Wright to pay such costs; and no further costs are to be allowed in respect of so much of the said suit as relates to such claim. Reserve further consideration and the other costs of the suit. Liberty to apply. NOTE.-There were other matters in the decree not material to this report.

[357] TEE v. FERRIS. Feb. 22, 1856.

[S. C. 25 L. J. Ch. 437; 2 Jur. (N. S.) 807. Followed, Rowbotham v. Dunnett, 1878, 8 Ch. D. 437. See In re Stead [1900], 1 Ch. 241; In re Maddock [1902], 2 Ch. 231.]

Charity. Mortmain. 9 Geo. 2, c. 36. Secret Trust. Wills. 7 Will. 4

Testator devised real and personal property to F. and the Plaintiffs, their heirs, executors, &c., as tenants in common; and by a memorandum of even date, addressed to them and signed by the testator but not attested, he expressed his confidence that they would appropriate the property to charitable objects.

On the day of the testator's death the will and the memorandum, which for sixteen months had been kept secret by the testator, were read over to him in the presence of F. by a solicitor, who was in attendance at the testator's request, communicated through F., to take instructions for a codicil. The Plaintiffs remained in ignorance of the existence of the memorandum, and of its contents, until after the testator's death. Held, that, with respect to F., the case was the same as if the testator had himself communicated to him the contents of the memorandum; and that F.'s silence when the memorandum was read was equivalent to an undertaking on his part to carry the testator's intentions, as therein expressed, into effect; the Court therefore declared that the one-fourth share given to F. was affected by the trusts