The plaintiff tendered to the defendants (the trustees) the balance due for his subscriptions down to the end of the thirteen. years, and he applied for a reconveyance of his mortgage security and the delivery up of the title-deeds.

The trustees, however, refused to comply with the plaintiff's request, on the ground that he was bound, by the terms of the mortgage deed and rules of the society, not only to pay the subscription on his shares for thirteen years, but also to continue his subscriptions until the termination of the society, which would not occur until the full sum of 120l. for each unadvanced share, with all expenses and liabilities of the society, could be fully satisfied.

The plaintiff filed a common claim for redemption, *claiming to have the title-deeds delivered to him, and a receipt endorsed on his mortgage, according to the provisions of the Act.

Mr. R. Palmer and Mr. Roxburgh for the plaintiff [distinguished Mosley v. Baker (1) and Fleming v. Self (2): The right of redemption here depends on the 21st rule, which was introduced with the express object of preventing the uncertainty in the former cases as to the duration of the society. The right to redeem is distinct from the liability to pay subscriptions subsequent to the thirteenth year, and the extended duration of the society under the 32nd and 33rd rules].

Mr. Lloyd and Mr. Welford for the trustees [contended that the mortgage, being given to secure the subscriptions payable in respect of the shares prepaid, covered everything which might become due from the mortgagor before the expiration of the society, and on those terms only could the plaintiff redeem, as in Mosley v. Baker (1), Fleming v. Self (2), Seagrave v. Pope (3)]. Mr. R. Palmer, in reply. THE MASTER OF THE ROLLS:

In this case, the answer made by defendants to the claim of the plaintiff is, that the covenant of the deed stipulated that the mertgagor should pay the amount so long as the society should endure; that its duration is not limited to thirteen years or to any other number of years, but that it might be less or more; that it is limited to last as long as may be necessary in order to provide a fund sufficient to pay every unadvanced member the sum of 120l. per share.

The rules referred to are these: the 1st, which provides that the subscription shall be paid "until the *object of this society

(1) 77 R. R. 27 (6 Hare, 87; 1 H. & Tw. 301).

(2) 98 R. R. 414 (3 D. M. & G. 997). (3) 91 R. R. 292 (1 D. M. & G. 783).

be fully accomplished," and the 32nd and 33rd, which state that the society is only to terminate when all the unadvanced members receive 120l. a share. It is said, that this was a species of partnership, that the same principle is applicable to the advanced and unadvanced members, all of whom are to receive 120l. per share, or property of that value.

I concur generally in this argument; and I think that the computation relative to thirteen years was a mere approximation of the anticipated duration of the society, but which might be more or less. But admitting the whole of this to be correct, it does not dispose of the question before me, which is this: What was the contract of mortgage of the 25th April, 1850, between the plaintiff and the trustees of the society? I think that this is determined by the express terms of the 21st rule.

It is, I think, impossible to get over the words of the 21st clause, and when the contract has been wholly performed by the plaintiff on his part, refuse to give him the benefit of it, because it is inconsistent, not with the words, but with the spirit of the arrangement. Mr. Lloyd argued, that when two rules are conflicting, you must look at the nature of the transaction, in order to discover which of them is to prevail, and that effect must then be given to the one so distinguished. I think, however, that this principle is not applicable to the present case, for the rules are not contradictory. It was necessary to fix some limit to the probable duration of the society. This was done in order to obviate the difficulty which would arise, in the previous cases of the advanced and withdrawing members, and to allow an advanced member to redeem on some fixed terms. It was for this purpose that a period of thirteen years was specified, and the 21st rule framed. This does not determine the duration of the society, but it does determine the terms of the contract between the parties, and the condition on which the plaintiff must be allowed to redeem.

Since the case was argued I have been furnished with the judgment of Baron MARTIN in a case of Farmer v. Smith (1), and I fully concur in the construction placed on the rules and mortgage of this society. The Court of Exchequer has expressed its opinion that the society was not terminated at the expiration of thirteen years, and that every advanced member must pay his subscription until the funds of the society are sufficient to realize 1201. for each unadvanced member. But still the mortgagor, on complying with terms of 21st rule, will be entitled to have the deeds returned to him, and to have a receipt endorsed on his mortgage. I adopt the decision of the Court of Exchequer,

(1) 118 R. R. 388 (4 H. & N. 196).

1859. CH. 26 BEAV. 521.

and assuming that the plaintiff may be required to continue
hereafter to pay his subscription, I still think that he is entitled
to the benefit of [the] contract, which, according to [the] 21st
rule of [the] society, provides for redemption on certain terms.
I must make a decree for redemption, according to [the 21st
rule, without prejudice to any action which may be brought
against the plaintiff in respect of subscriptions due from him
subsequent to September, 1858, when the thirteen years expired.

The plaintiff is entitled to his costs.

YOUNG v. YOUNG.

(26 Beav. 522–524.)

from the payment of his debts.'

and testamentary expenses

A testator bequeathed his personal estate to his wife, "discharged He then devised his real estate in Herefordshire in trust to sell and pay "all his just debts, funeral in exoneration of his personal estate, and he devised his real estates in Norfolk, without any expressed trust for payment of his debts. The produce of the Herefordshire estates being insufficient to pay the debts: Held, that the Norfolk estates were next liable to pay them in exoneration of the personal estate. THE testator bequeathed to his wife "all his plate, linen, &c., &c., and all other his personal estate and effects, for her own absolute use and benefit, discharged from the payment of his debts, but subject to the payment of the sum of 100. to his sister." He then devised his real estate in Herefordshire to two trustees for sale, and out of the produce "in trust to pay, satisfy and discharge all his just debts, funeral and testamentary expenses," in exoneration of his personal estates; and after making the aforesaid payments, upon trust to pay over the residue to three other trustees. He then specifically devised five cottages at Hillgay, in Norfolk, to his wife for life, with ultimate remainders over to his four nephews and his niece in fee. He afterwards devised the residue of his real estates in Norfolk to the three trustees upon trust for sale, and to invest the produce, together with the surplus of the purchase-money of his Herefordshire estates, and pay the income to his wife for life, and after her death to the plaintiff for life, with remainder to his four nephews and his niece.

The testator died in 1855; the trustees sold the Herefordshire. property, but the produce, after paying the expenses and a mortgage on it, was insufficient to pay the whole of the testator's debts.

Doubts arose as to the proper order in which the assets of the testator ought to be applied in payment of his debts. The plaintiff insisted, that his real estate at Hillgay and the other real estate in Norfolk *were by the will, made liable to be so applied, after the real estate in Herefordshire, in priority

to the general personal estate. The defendants, the four nephews an cl the niece, on the contrary, insisted that the testator's personal estate ought to be so applied, after the real estate in Herefordshire, in priority to the real estates at Hillgay and in

Norfolk.

To determine the point a special case was prepared and the question submitted for the opinion of the Court was as follows: Whether, upon the true construction of the testator's will, his personal estate ought to have been applied, in priority to his real estate in Norfolk, or his real estate in Norfolk in priority to his personal estate, in payment of such of his debts as were not discharged out of the purchase-moneys of his said eal estate in Herefordshire.

Mr. Selwyn and Mr. Blackmore, for the plaintiff, relied on Morrow v. Bush (1).

Mr. Field, for the nephews and niece, argued, that the general terms of exoneration in the first part of the will were afterwards explained and limited by the specific devise of a particular property to pay those debts.

Middleton (2).

Mr. W. D. Lewis for the trustees.

THE MASTER OF THE ROLLS:

He cited Colvile v.

I am of opinion that the personal estate is exonerated in this case. The will gives the testator's personal estate to his wife "for her own absolute use and benefit *discharged from the payment of his debts. That means she is to take the personal estate discharged of all the debts. If I were to read it otherwise I must introduce some other words, such as these: "except so far as the produce of my Herefordshire estate may be insufficient to pay," or "except so far as the fund after provided may prove insufficient for that purpose."

The case of Morrow v. Bush is, I think, decisive on the subject, and Colvile v. Middleton does not touch it. In that case I observe that Morrow v. Bush was cited.

Here there is a complete exoneration of personal estate from the payment of the testator's debts, and if so, then, after exhausting the produce of the Herefordshire estate, they must fall on the only other fund, which is the real estate in Norfolk.

(1) 1 Cox, 185.

(2) 52 R. R. 231 (3 Beav. 570).

1859. Feb. 22.

March 24.

Rolls Court,
ROMILLY,
M.R.

[ 525]

[ *526 ]

TAITE. SWINSTEAD (1).

(26 Beav. 525-532; S. C. 5 Jur. N. S. 1019; 7 W. R. 373.)

An estate was devised to trustees for different persons in fifth shares, some of which shares were given to living persons absolutely, and the others to living persons for life, with remainder to their children in fee. An unlimited power of sale over the whole estate was given to the trustees: Held, that this power of sale was valid and could be exercised over the whole estate, so long as any of the trusts of any of the shares remained to be performed.

THE testator, Noah Slee, by his will, dated in 1829, devised a piece of freehold building ground to four trustees and their heirs, upon the trusts following:

As to one undivided fifth part thereof, for his son, John Slee, and his wife and children, in the manner that other part of his property was devised for their benefit.

As to one other undivided fifth part thereof, for his son, Noah Slee, his heirs and assigns.

As to one other undivided fifth part thereof, for his son, Josiah Slee, his heirs and assigns.

As to another undivided fifth part thereof, for his son-inlaw, T. H. Gould, and Elizabeth his wife, their heirs and assigns.

And as to the remaining undivided fifth part thereof, for his son-in-law Samuel Taite, and Mary Benson his wife, and their children, in the same manner that other part of his the said testator's property was devised for their benefit.

"But if his said trustees should think it desirable to sell the said piece or parcel of ground, then upon trust that they his said trustees, or the survivors or survivor of them, or the heirs or assigns of such survivor, should, as soon as conveniently might be after his decease, absolutely sell and dispose of the said piece or parcel of *ground and hereditaments," and stand possessed of the proceeds of the said sale, upon the like trusts as were thereby declared of and concerning the said piece or parcel of ground.

There was also a maintenance clause during minority, and a declaration that the trustees' receipts should be good discharges.

The testator died in 1830. His trustees, in 1858, entered into a contract to sell the property to the defendant. At this time, the parties beneficially interested in the property were

(1) Such a power is not necessarily determined by the fact that all the shares are absolutely vested in persons who have become sui juris: In re Cotton's Trustees and The School Board for London (1882) 19 Ch. D. 624, 51 L. J. Ch. 514, 46 L. T. 813; In re Lord

Sudeley and Baines & Co. [1894] 1 Ch. 334, 63 L. J. Ch. 194, 70 L. T. 549. See also In re Horsnaill, Womersley v. Horsnaill [1909] 1 Ch. 631, 78 L. J. Ch. 331, 100 L. T. 603, where other cases on that point are cited and considered.-O. Â. S.