V. DONCASTER. Statement. to accept and take of a conveyance to them or him, or their 1856. or his heirs, of a divided moiety of the said hereditaments, DONCASTER (free from all incumbrances as therein before mentioned), under and by virtue of the power of partition and division thereinbefore contained; and it was thereby further declared and agreed, that, upon such conveyances being made to them the said trustees or trustee of the settlement for the time being, of the said undivided or divided moiety, as the case might be, of the said hereditaments in Princes-street, Manchester, or of any part or parts thereof, they and he should stand seised of or possessed thereof, as of the nature of real estate, To, for, and upon such and the same uses, trusts, ends, intents, and purposes, and with, under, and subject to such powers, as well of sale as of exchange or partition, and all other powers, provisions, conditions, limitations, declarations, and agreements as were thercin mentioned, limited, or declared of and concerning the several hereditaments and premises thereby granted, or to, for, or upon such and so many of them as would be then existing or capable of taking effect. There was issue of the marriage one child only, William Thompson Doncaster, who was born in October, 1834, and who, on his birth, became under the settlement entitled as tenant in tail in remainder to the said settled hereditaments and premises; and, as the said bill alleged, entitled absolutely in remainder to one moiety of the moneys to arise from the sale of the said hereditaments and premises in Princes-street, Manchester. This child died shortly afterwards, leaving his father the said William Doncaster, surviving, who thereupon, the bill alleged, became entitled to the interest of his said child in the said moneys to arise from the sale of the said hereditaments and premises in Princes-street, Manchester, aforesaid. The hereditaments and premises in Princes-street, Man 1856. DONCASTER บ. DONCASTER. chester, were, in the month of January, 1846, sold for the sum of 1210l. 605l., part of this, was thereupon paid into the hands of the trustees of the settlement, and was subsequently by them paid over to A. M. Doncaster. William Doncaster, by his will, dated the 18th of January, 1849, devised and bequeathed to Godfrey Tallents and Robert Griffin all his real and personal estate, upon trust to sell, and to pay and divide the residuary proceeds equally amongst the Plaintiffs in this suit; and the testator appointed the said Godfrey Tallents and Robert Griffin executors and trustees of his will. He died on the 20th of January, 1849, and his will was duly proved by the said Godfrey Tallents and Robert Griffin, who afterwards, on the 9th day of June, 1855, procured letters of administration to the said William Thompson Doncaster, the only child of the said William Doncaster. The bill prayed a declaration, that the hereditaments in Princes-street, Manchester, which, under the trusts of the will of William Thompson, were converted into personalty, remained so converted under the trusts of the settlement of the 20th day of August, 1823. And that, under the trusts of the said settlement, the said William Thompson Doncaster, deceased, on his birth became entitled to an absolute vested interest in a moiety of the moneys to arise from the sale of the said hereditaments; and that the same, on his decease, became vested in his father the said William Doncaster, deceased, and passed by his will to the Plaintiffs; and that the said Godfrey Tallents was a trustee for the Plaintiff of the moneys in his hands, which had arisen from the sale of the said hereditaments; and also of the said sum of 605l. so paid to the said A. M. Doncaster, as aforesaid, subject to the life interest therein of the said A. M. Doncaster; and that the said A. M. Doncaster might be decreed to repay the said sum of 605l. to the said Godfrey Tallents upon the trusts of the said settlement. Mr. Rolt, Q. C., and Mr. Berkeley, for the Plaintiffs. Mr. De Gex, (Mr. Cairns, Q. C., with him), for the Defend ants. The arguments are fully stated in the judgment. The cases cited were Foley v. Burnell (a), Vaughan v. Burslem (b), The Countess of Lincoln v. The Duke of Newcastle (c), and Boydell v. Golightly (d). [The VICE-CHANCELLOR, at the conclusion of the Defendants' arguments, said, that he had a strong impression in favour of the Plaintiff; but that, if upon consideration he should think it necessary, he would call for a reply in a few days.] VICE-CHANCELLOR SIR W. PAGE WOOD (after shortly stating the limitations in the settlement of the real estate, continued as follows:-) The effect of these limitations is, that each child, at its birth, would take a vested interest in tail, subject to be devested or reduced by the execution of the power, which was a power of exclusion, or by the property being divided into more shares, in the event of other children being born. This being the limitation of the settled estate, the settlement having recited, that the father of Anna Maria Doncaster had directed certain estates at Manchester to be sold, and the produce given in moieties to her and her sister, Anna Maria Doncaster, with the concurrence of her intended husband, assigned the money to be produced 1856. DONCASTER ย. DONCASTER. Argument. Nov. 7th. Judgment. VOL. III. D K. J. 1856. DONCASTER V. DONCASTER. Judgment. from the sale to the trustees of the settlement, upon trust to invest, and with powers to vary the securities; " and upon further trust to pay the yearly and other interest, dividends, and proceeds of the whole of the said moneys, estate, and premises thereby assigned, or intended so to be, and the rents and profits to be received until sale of the said estates late of the said William Thompson, and also pay and apply the principal of the same respectively, to such person or persons, for such uses, ends, intents, and purposes, and in such manner and form, and subject in all respects to such and the same powers, provisoes, contingencies, declarations, and agreements as were therein before expressed and declared concerning the payment and application by them the said trustees of the rents and profits of the said hereditaments and premises therein before mentioned to be thereby granted and released, concerning their release and conveyance of the said hereditaments and premises respectively, or as near thereto as circumstances and the nature of the case would admit.’ The omission of the word "and" is of no real importance here; it should have been," and concerning their release and conveyance of the same hereditaments and premises respectively." It is sufficiently plain to enable me to give the same meaning as if the word "and" were there; that is to say, reddendo singula singulis, the corpus was to be dealt with as the conveyance was directed to be made, and the income was to be paid as the rents and profits of the real estate. No one ean doubt that there was a clear and distinct settlement of this personal property, by reference to and upon the same trusts as the land. The first objection raised was, that the Court, although it might have been bound by Foley v. Burnell (a) and Vaughan v. Burslem (b), and that class of cases, where there is a (b) 3 B. C. C. 101. (a) 1 B. C. C. 274. clear and distinct reference to trusts of real estate, ought to make a distinction where words of conveyanee occur, as in every limitation of the corpus of the estate here, "in trust for and to be released and conveyed unto;" and it was argued, that this was an executory trust, as a conveyance was directed to be made, and that, therefore, the Court was at liberty to give to the limitations a construction, which would more facilitate the presumed intent of the parties, and was not tied down so rigorously by the strict rule of law, as if it had been simply a trust for these parties. I think, however, that, in this case, the words "to be released and conveyed" are by no means indicative of an executory trust; but they simply amount to a direction that the property is to be held in trust for these parties. There is a perfectly clear limitation of the equitable interest in the estate, and a mere direction superadded, that there shall be a release and conveyance according to the equitable interest, and nothing which indicates any special form or mode of conveyance; and the simple execution of the trust would be to clothe every person to whom a distinct equitable interest is limited, with the legal estate in that interest. I do not think, therefore, that any reliance can be placed upon these words" to be released and conveyed." Then, if so, independently of the other parts of the settlement, upon which I must say a word presently, the case seems to me clearly to fall within the authority of Foley v. Burnell (a) and Vaughan v. Burslem (b), and is distinguishable, upon the very ground on which Sir Edward Sugden distinguished those cases, from Potts v. Potts (c), where he held that a chattel interest in a newspaper was, upon the death of the tenant for life, to be assigned to the party who would then be in possession under the limitations of the settlement, and that it did not fall within the cases of Foley v. Burnell (a) and Vaughan v. Burslem (b); the application of which rule, in that case, 1856. DONCASTER บ. DONCASTER. Judgment. (a) 1 B. C. C. 274. (b) 3 B. C. C. 101. (c) 3 J. & L. 353. |