The decision of Peterson, J., in Lyne's Trusts, In re; Lyne v. Gibbs (noted on page 25, Mag.), has been reversed by the Court of Appeal, which held that an interest in the proceeds of sale of real estate settled upon a trust for sale which has not been executed is personal estate within the meaning of section 1 of Lord Kingsdown's Act (Wills Act, 1861) (88 L. J. Ch. 1). A lunatic mortgagee, when the mortgage debt is paid off and he becomes trustee of the mortgaged property for the mortgagor, is within the exception in section 1 of the Lunacy Act, 1911, of "mortgagees, not being also trustees, for he does not become a trustee until he has ceased to be a mortgagee. The Chancery Division has, therefore, no jurisdiction to make an order vesting the mortgaged property in the mortgagor; the jurisdiction remains in the Judge in Lunacy. The reconveyance of the mortgaged estate after payment of the mortgage debt is one of the duties incident to an estate conveyed by way of mortgage which are excluded from the definition of trust in section 341 of the Lunacy Act, 1890. James' Mortgage Trust, In re (88 L. J. Ch. 17). Tithe Act, 1918. 8 & 9 Geo. V., Cap. 54. (Continued from page 56, Mag.) 46 4. (2) An agreement made under this section may provide, and, in default of such agreement, on the application of the owner of the land or any part thereof, the Board of Agriculture and Fisheries for the purpose of the redemption of a rentcharge for the redemption of which an application is made on or before the first day of January, nineteen hundred and twenty-one, may, if they think fit, determine, that the consideration money shall be discharged by an annuity payable yearly or halfyearly for a period not exceeding fifty years, consisting of interest at a rate not exceeding five per centum per annum on the consideration money, and of such sum as would be sufficient if the periodical payments thereof were accumulated at compound interest at a rate not exceeding four per centum per annum to produce an amount equal to the consideration money at the end of the said period, and in any such case the Board shall by order direct the discharge of the consideration money by such an annuity as aforesaid and shall charge the land therewith, and the order shall contain such provisions for giving effect to the agreement or determination and for protecting the interests of persons interested in the rentcharge as the Board may think fit, and after payment of the first instalment of the annuity the rentcharge shall cease and be extinguished. In the case of any such annuity payable to Queen Anne's Bounty on behalf of any benefice or cure, Queen Anne's Bounty, in determining the portion thereof payable year by year by way of income to the spiritual person entitled in respect of the benefice or cure, may make any necessary provision for securing that the portion accumulated shall at the end of the term produce an amount equal to the consideration money. (3) An agreement by an owner of a rentcharge under this section shall not be valid (a) if made by a spiritual person entitled in respect of his benefice or cure, except with the consent of Queen Anne's Bounty, or, in the case of a rentcharge affected by the Welsh Church Act, 1914 (4 & 5 Geo. 5. c. 91), of the Commissioners of Church Temporalities in Wales; or (b) if made by a person (not being a spiritual person so entitled), who is not empowered to sell the rentcharge unless he obtains the consent of some other person, except with the consent of that other person. (4) This section shall not apply as respects. any tithe rentcharge with respect to the redemption of which proceedings are pending at the passing of this Act. 5. Provision of money for redemption by limited owners. 1-(1) So much of section eleven of the Tithe Act, 1846 (9 & 10 Vict. c. 73) (which enables a limited owner of land to charge on the land the consideration money and other moneys payable in respect of the redemption of a tithe rentcharge issuing out of the land), as fixes the rate of interest on the charge or requires an annual reduction of the charge, shall cease to have effect. (2) Money applicable to the purchase of land to be settled or held to or on any uses or trusts, shall be applicable in or towards the redemption of a tithe rentcharge which is charged on land settled or held to or on the like uses or trusts. 6. Power to charge on land money payable for redemption of tithe rentcharge.]—(1) If the consideration money payable in respect of the redemption of a tithe rentcharge is not paid or discharged within one month after the same becomes payable, the Board of Agriculture and Fisheries, on the application of the owner of the rentcharge, may make an order in favour of the owner of the rentcharge, or other the person entitled under the Tithe Acts, 1836 to 1891, to receive the consideration money, charging the land with the payment of the amount of such consideration money and the costs properly incurred by the applicant in obtaining the charge, with such interest, by such instalments and with such directions for giving effect to the charge as the Board may think fit; and where a charge is so created, then after the payment of the half-yearly portion of the rentcharge which accrues due next subsequently to the time of the creation of the charge, the rentcharge shall cease and be extinguished. (2) A charge created under the provisions of this section or section four of this Act shall have priority over every other then existing charge and incumbrance affecting the land, whether created under the powers of an Act of Parliament or otherwise, and such a charge shall be a land charge within the meaning of the Land Charges Registration and Searches Act, 1888 (51 & 52 Vict. c. 51). 7. Payment of consideration money into court in certain circumstances.]-Where any person fails to exercise within such time as the Board of Agriculture and Fisheries may direct the options given by section nine of the Tithe Act, 1846, as to the application of consideration money for redemption of a rentcharge, the consideration money may be paid into court in manner provided by that section. 8. Statutory declaration for purpose of redemption.]-(1) For the purposes of the redemption of tithe rentcharge the Board of Agriculture and Fisheries may require the owner of the rentcharge to make a statutory declaration stating (a) the nature and extent of his estate and interest in the rentcharge; (b) the date and short particulars of the instrument under which his estate or interest is derived; (c) the names and addresses of the trustees, if any, under such instrument; and (d) the incumbrances, if any, affecting the rentcharge; and the Board may accept a declaration made under this section for the purpose of the redemption. (2) If the owner of a rentcharge fails to make a declaration as required in pursuance of this section the Board may direct the redemption money for the rentcharge to be paid into court as in a case where the owner is only entitled thereto for a limited estate. 9. Power of Queen Anne's Bounty to pay expenses of redemption.]-Queen Anne's Bounty may pay or agree to pay out of redemption money payable to them in respect of any tithe rentcharge to which any spiritual person is entitled in respect of a benefice or cure such expenses of redemption of the rentcharge as they in their discretion may think fit, and may also pay out of any such redemption money the cost of redeeming any tithe rentcharge issuing out of any glebe land belonging to the spiritual person in respect of the same benefice or cure. 10. Corn rents, &c.]-(1) The powers of the Board of Agriculture and Fisheries under the Tithe Act, 1860 (23 & 24 Vict. c. 93), to convert corn rents into tithe rentcharges may be exercised at any time on the application, in writing, of the owners of land liable to the payment of the major part in value of corn rents or of the persons to whom the major part in value of the corn rents are payable. (2) The tithe rentcharge to be awarded on the conversion of any corn rents shall be such as, in the opinion of the Board, is equal in capital value to the corn rents converted. (3) The provisions of this Act which relate to redemption of tithe rentcharge, except the First Schedule, shall apply to corn rents, rentcharges, and money payments (other than rentcharges payable under the Extraordinary Tithe Redemption Act, 1886 (49 & 50 Vict. c. 54), which are liable to redemption under the Tithe Acts, 1836 to 1891. 11. Short title, construction, and repeal.]— (1) This Act may be cited as the Tithe Act, 1918, and the Tithe Acts, 1836 to 1891, and this Act may be cited together as the Tithe Acts, 1836 to 1918. (2) In this Act the expression "owner shall have the same meaning as in the Tithe Act, 1891 (54 & 55 Vict. c. 8). (3) The enactments mentioned in the Second Schedule to this Act are hereby repealed to the extent specified in the third column of that Schedule. SCHEDULES. FIRST SCHEDULE. [Sections 4-10 (3).] Method prescribed for Ascertainment of 1. The Board of Agriculture and Fisheries shall estimate the annual sum payable in perpetuity which is equal to the variable rentcharge payable under the Tithe Acts, 1836 to 1891, as amended by this Act, and the sum so estimated is in this Schedule referred to as the gross annual value. 2. The compensation for redemption shall be such sum as in the opinion of the Board is sufficient, after payment of the cost of investment, to produce when invested in Government securities a permanent annuity equal to the gross annual value after deducting from that value the average amount paid or payable by the tithe owner in respect of the rentcharge for the three years immediately preceding the date of the application to redeem on account of rates and land tax, and such sum not exceeding two and a-half per cent. of the gross annual value as in the opinion of the Board represents the necessary cost of collection of the rentcharge. 3. For the purpose of the redemption of a rentcharge for the redemption of which an application is made on or before the first day of January nineteen hundred and twenty-one, the gross annual value of the rentcharge shall be the original commuted amount thereof, and the compensation shall be twenty-one times that amount after such deductions therefrom as aforesaid. An Executor's Right of Retainer. Savage, In re; Cull v. How rd ([1918] 2 Ch. 146; 87 L. J. Ch. 599) affords an important point to be noticed by the profession in regard governing the subject is to be found in Cherry v. to an executor's right of retainer. The principle Boultree (4 My. and Cr. 442), and Courtney v. Williams (15 L. J. Ch. 204), end is this: Where any one as a legatee claims as such a portion of the assets of a testator in payment of the legacy and is himself a debtor to the testator's estate it is against conscience that he should take anything out of the estate until he has made good what he owes to it. This is the sense of the view given by the Rt. Hon. Sir James Wigram, V.C., who decided Courtney v. Williams (supra). There need be no actionable 44 duty or obligation on the legatee to pay what he owes, and in this respect it is apprehended that the enunciation of the principle by Kekewich, J., in Akerman, In re; Akerman v. Akerman ([1891] 3 Ch. 212; 61 L. J. Ch. 34) is faulty because he regards the person owing the money as one "bound to increase the general mass of the estate by a contribution of his own," namely, the payment of the debt. This makes it a legal obligation-which it is not, rather than a duty founded in conscience -which it is. And the remedy which enables the executor to ensure that the debtor-legatee makes good what he owes " is what is called the executor's right of retainer or power to impound. It allows him to deduct or retain in his hands, out of the share or interest due to the debtor-legatee from the estate, the amount which represents the debt owing from the latter. Or to express it in the form announced in some of the cases, it is as if the executor said to the legatee: "I admit your right to the legacy and I will pay you, of course, with the assets of the testator; but you have yourself assets in your own hands-pay yourself your legacy pro tanto out of those assets. See Jeffs v. Wood (2 P. Wms. 128), Campbell v. Graham (1 Russ. and M. 453). It is plain beyond a cavil that in such a case the equitable rule, that he who seeks equity must do equity, would rebut at once any demand by the legateedebtor for full payment. But this right to retain is limited solely to cases where there is a retention of money payable to the legateedebtor as against money due from the latter as a debtor to the estate. And it is important to note that it has no sort of application to any other case than one wherein there is money in the shape of a debt due to the testator's estate by the legatee, and per contra, money to be paid in the shape of a legacy to the legatee: See per Sargant, J., in Savage's Case (supra). In the case of Savage, S., a spinster by her will in 1896 bequeathed to one H. investments amounting to £1,150 in certain stocks. Residue, she gave to C., but should C. predecease her (which happened) then to C.'s children. H. was an intimate friend of S., and in 1903, being in financial difficulties, borrowed £500 from her on a promissory note. Interest on this was paid by H. in 1904, but nothing subsequently, and the evidence showed that S. not only did not ask for the interest but told H. not to worry 66 as she (S.) would destroy the note. On S.'s death, however, her executor discovered the note (the debt being then Statute-barred) and issued an Originating Summons to determine whether an executor ought to retain any and what part of certain stocks specifically bequeathed to a legatee so as to answer the debt of such legatee to his testatrix. In this very case it is plain that H. was not bound to increase the general mass of the estate by a contribution of his own," because the debt was Statute-barred, and the remedy against him accordingly taken away. As for H.'s intention to destroy the note, that goes for nothing, because, to use the language of North, J., Milnes, In re; Milnes v. Sherwin (53 L. T. Rep. 534), even if S. did not intend to ask H. for the money the cases of Cross v. Sprigg (6 Hare 552) and Peace v. Haines (11 Hare 151) show that there would have been no release of the debt at law or in equity. It is here we see the value of the assertion of suc' a right as retainer. Although the remedy in the above case is taken away it is, as Wigram, V.C., has said, well settled that if the creditor by means of a lien or any other lawful means can pay himself without resorting to an action against the person of the debtor he may lawfully do soCourtney v. Williams (supra), at p. 552. follows that if the right to retainer existed in Savage's Case the executor could retain or impound such proportion of the legacy as would represent the debt due. It was, however, held in that case that although the gift to the debtor (as legatee) was of something like money or which might be easily turned into money, the executor had no right to retain any part of the stocks to answer the debt to the testatrix's estate. And the reason lay in this: It was not a case in which there was money payable to the legatee on the one side, and money due from the legatee as a debtor to the estate on the other. The bequest was a specific bequest of something other than money, although no doubt money's worth. The thing to be given or handed to the legatee was to be given, not in the shape of money, but in the shape and character in which it was left in the testatrix's hands at her death-namely, as stocks. The mere fact that the subject-matter of the gift is like money, or as good as money, or easily changed into money, stands for nothing. The peculiar subject of retainer is It money and money only, and whatever may be the various forms the succedanea of money may take, they are not that which alone submits to the operation of retainer-money itself. It is not even that what is given is specific in the legal sense, for that may be the quality of a source purely, equally as of a determined and distinctive thing in the nature of property: See Taylor, In re; Taylor v. Wade (infra). The source from which the money is to come may be a specific source as in Taylor's Case; it may be the proceeds of the sale of a specific property as in Milne's Case (supra); that is quite immaterial. The test is simply: Is the gift, to come into the hands of the legatee, money?-nothing more, nothing less. Taylor's Case ([1894] Ch. 671) demonstrates quite clearly this test. There it was decided that where a debtor to a testator's estate is a specific legatee of the profits of a business represented by moneys in the hands of the executors, the executors may retain such moneys as against the debt. Chitty, J., there said: "If this rule (of retainer) were universal there would be no right of retainer in the present case. But I find here on either side a liquidated demand. The executors have money in hand payable to the legatee, and I think I should be unnecessarily narrowing the doctrine of retainer were I to hold that the right did not exist in this case. The person to pay and the person to receive is the same. The mass of the estate is diminished by the non-payment of a debt which is due to the testator's estate from the legatee. In my opinion the executors have the right of retaining these profits as against the debt due from the legatee -a simple case of money to be paid (albeit from a specific source) on the one hand, and money owing by the legatee on the other. Nominating or selecting the source made no matter inasmuch as the source was in its character money, and was to be paid or given as such. The person to be paid already had money in his hands which was assets of the testator's estate, and by the simple operation of a balance of accounts only so much as represented the difference between what the legatee already had and what he was entitled to receive was to be paid. But it may chance by the action of the executor himself that what otherwise would be a case of a money gift simpliciter to which the rule would attach may yet by that action be placed outside its grasp. This further enforces the purely monetary incidence of the doctrine. Suppose A. by will to bequeath to B. £500, and B. to owe A.'s estate £500 in respect of a Statute-barred debt. The executor sets aside stocks or other specific property belonging to A. 's residuary estate to meet that legacy. What is the position? Although by the will the gift is of money, that which will actually reach the hands of B. is not money; that which is to be given B. is not money— yes, it is money's worth, something in substitution, but not money. Ergo the rule does not operate, and the executor could not retain the subject-matter in part or in entirety in satisfaction of the £500 owing by B. to the estate: Ballard v. Marsden (L. R. 9 Ch. 374). B.'s claim is clearly no longer one against the mass of the estate. That prerequisite prescribed by Cherry v. Boultree and Courtney v. Williams (supra) is not available any longer. The appropriated item is no longer a constituent part of the estate at all-it has been set aside, detached from the estate altogether. The executor has in fact become a trustee of the earmarked legacy and cannot retain any moneys he may claim as executor. The legatee can now go against the item appropriated as a trust fund without in any way interfering with the general estate. If it depreciates he cannot claim refundment from the general estate; if it appreciates he reaps the benefit. In parity of reasoning it is conceived that if A. by will directs that a sum of money is to be invested by his executors and trustees in certain stocks for B. his debtor, no retainer could be exerted against that money by the executor. in respect to B.'s debt by reason that what is to come into his hands is not money but specific securities. The money in the executor's hands is earmarked for a specific purpose; in B.'s hands it is stocks. That what has been observed forms the basis of the rule and that within those prescribed limits only has it application is eminently clear, because the authorities, in the words of Chitty, J., in Taylor's Case (supra), leave no doubt that as against a specific devise, which is outside the duties of an executor, there is no retainer. It is equally plain that in the case of a specific bequest of leaseholds there is likewise no right of retainer. The two things cannot be measured one against the other, and the same rule prevails also as against specific chattels. If in such a case the right did exist |