Ashton v. Langdale.

decided since Sparling v. Parker, at variance with it, or that any case has been decided since Walker v. Milne, at variance with it. A great deference is certainly due to these cases, but they are not necessarily binding on the court. If, then, I should have a strong and undoubting opinion that they are erroneous, I ought to decide otherwise than in conformity with them. But I have not such an opinion. On the contrary, if the case had now come before me for the first time, clear of all decisions, I should decide respecting the canal and railway shares as Lord Langdale has done. I decide, then, accordingly with reference to these shares.

With regard to the debentures, I think that they cannot be deemed to come within the act. There is no reference in the form of the debentures to any interest or benefit arising from real estate, and it has not been shown by extraneous means that that character belongs to them. It is a personal obligation to pay a debt, which may certainly be enforced against property, but not otherwise than as in the case of other personal obligations.

Then, as to the shares in the banking company. It is contended that they are within the act, because land may be acquired for the offices for carrying on the business of the company, or for investment, or in respect of bad debts. This kind of property, however, is not the object of the formation of the company, which is merely a trading society. I think that it is a reasonable construction that such shares should not be held obnoxious to it merely from the fortuitous possession of real estate. The words of the 1st section are, "manors, lands, tenements, rents, advowsons, or other hereditaments, corporeal or incorporeal, whatsoever, nor any sum or sums of money, goods, chattels, stocks in the public funds, securities for money, or any other personal estate whatsoever, to be laid out or disposed of in the purchase of any lands, tenements, or hereditaments." Certainly property of this description does not come within these words. Then, the words of the 3d section are, "lands, tenements, or other hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect any lands, tenements, or hereditaments, or of any stock, money, goods, chattels, or other personal estate, or securities for money to be laid out or disposed of in the purchase of any lands, tenements, or hereditaments, or any estate or interest therein, or of any charge or incumbrance affecting or to affect the same." I think that it would not be a reasonable interpretation of this act to say, that these shares are an estate or interest in land under the words which I have mentioned. I regard the case which has been cited, Myers v. Perigal, with great respect; but I cannot agree with such an extended construction. Here, then, is an existing authority from which I deem it right to depart; which I accordingly do.

I think also that the scrip is not within the words. There is no binding authority on that point.

The only remaing cases are the mortgages of railway undertakings, which I do not decide in favor of the commissioners, and the counsel for the commissioners must confine their observations to them.

Quennell v. Turner.

The Solicitor General and Mr. W. M. James then contended that Walker v. Milne. the railway mortgages were not within the act.

KNIGHT BRUCE, V. C. Railway shares, I think, are not covered by the words of the act, and are not within the meaning of it; but mortgages of the undertakings and the tolls proceed from the corporation directly, and plainly are an incumbrance on, and directly and immediately charge, hereditaments, namely, tolls and the land itself from which the tolls are obtained.1

QUENNELL V. TURNER.2

March 17 and 18, 1851.

Bequest

Misdescription - Devise "EsCopyholds- Annuity- Primary Fund for Payment.

Construction

G. T. was entitled to a life interest in freehold and copyhold estates, and also in three sums of stock; the legal estate in the freeholds was vested in trustees, but the copyholds had never been surrendered to them, and many of the freehold and copyhold lands were let together; the three sums of stock were standing in the names of the trustees in the Bank of England. G. T. was also absolutely entitled in remainder to moiety of the freehold and copyhold estates, and in the stock. G. T., upon his second marriage, by a covenant and his bond, secured an annuity of 200l. a year to his wife for life, and by his will he confirmed the settlement, and said, "I charge all and every my freehold hereditaments and estate and moneys standing in my name in the public funds with the payment of the annuity, to my wife; and subject to the said annuity, I devise and bequeath the same freehold hereditaments and estate and moneys in the funds to my niece and godchild, S. Q., her heirs, executors, administrators, and assigns, with remainder to her two sisters, &c. All the rest and residue of my real and personal estate, subject as to my personal estate to the payment of my just debts, &c., and legacies, I devise and bequeath unto my wife, her heirs, executors, administrators, and assigns." The testator had no moneys standing in his name, and upon a suit by the devisee:

Held, that the testator meant his interest in the stock standing in the name of the trustees, to which he was entitled in remainder :

Held, also, that the personal estate, as the primary fund for payment of the annuity, was not exonerated by the charge made upon the freeholds and the moneys in the funds: Held, also, in the absence of any intention apparent on the will, that the word "estate" "did not include the copyholds, and that they did not pass.

By indentures of lease and release, bearing date respectively the 3d and 4th of June, 1796, being the settlement made in contemplation of a marriage between Sally Clifton and the Rev. George Turner; the release being made between Sally Clifton of the first part, the Rev. George Turner of the second part, and John Hilton, John Peyto Shrubb, and the Rev. John Roberts of the third part, the said Sally Clifton granted and released divers freehold hereditaments situate near Guildford, in the county of Surrey, to the said trustees, their

1 It was at the hearing stated that it was the intention of the parties to carry an appeal in this case directly to the house of lords. The amount of the property in question was about 250,000l.

2 20 Law J. Rep. (N. s.) Chanc. 237.

Quennell v. Turner.

heirs and assigns; and George Turner and Sally Clifton covenanted, within one month after the solemnization of the marriage, to surrender certain copyhold lands held of the manors of Paddington Pembroke, Westcott, and Dorking, in the county of Surrey, to which Sally Clifton was entitled, unto the said trustees, that they might be admitted. And the said Sally Clifton also assigned divers leasehold premises unto the said trustees; and also a bond, dated the 24th of August, 1787, and all moneys thereby secured, and a sum of 10177. Os. 11 d., secured by an indenture of mortgage, dated the 2d of July, 1783. It was also agreed that the sum of 27251., 51. per cent. consols, standing in the name of the said Sally Clifton, should be transferred to the trustees; and it was declared that the freeholds, copyholds, leaseholds, and all other the personal estate should be held by the trustees upon trust to pay the rents and profits, dividends, and income, to George Turner, for life; and in case there should be only one child of the marriage, if it should be a son the said trustees were to transfer the sum of 1017. 0s. 111⁄2d. and 2725l., 5l. per cent. consols, and the div idends and interest thereof, unto such persons as she, the said Sally Clifton, should, at any time, by deed or will appoint; but in case there should be only one child of the marriage, and it should be a daughter, the trustees were to stand seized and possessed of the freehold, copyhold, and leasehold hereditaments and premises, and the annuities, in trust for such persons as Sally Clifton should by deed or will appoint; and in case there should be no such son or daughter, nor any issue of such son or daughter, living at the time of the decease of the survivor of the said G. Turner and Sally Clifton, then that the said trustees should, after the death of both, convey, surrender, assign, transfer, and pay the freehold, copyhold, and leasehold messuages, lands, &c., and the annuity, stocks, funds money on mortgage and premises, and the rents, issues, dividends, interest, profits, and produce thereof, upon such trusts and for such purposes as were therein previously declared concerning the same, in case there should be only a son or only a daughter of the said marriage. The settlement also gave the trustees a power of sale and exchange, with the consent of G. Turner and Sally his wife, and the survivor of them, and it was declared that the moneys produced by the sales should be laid out in the purchase of lands, which were to be settled to the uses thereby declared.

The marriage was duly solemnized, and on the 2d of January, 1797, Sally Turner, by virtue of the power contained in the indenture of settlement of the 4th of July, 1796, duly made her will in the presence of three witnesses, and upon failure of the limitations in the settlement in favor of her son and daughter and their issue, she directed, limited, and appointed the sum of 500l. to be raised from the sale of part of the sum of 27251., 5l. per cent. annuities, for the use and disposal of her cousin Charlotte, one of the daughters of the Rev. Dr. James Weller, her executors, administrators, and assigns; and the testatrix directed the trustees of the settlement to transfer so much of the 51. per cent. annuities as would be sufficient to raise and pay the 5007.; and as to the remaining part of the said 27251., 51. per cent.

Quennell v. Turner.

annuities, the testatrix bequeathed and appointed the same, and the 10177. Os. 11 d. due on mortgage, and all other moneys in the settlement, and all interest and dividends then due on the same, unto and between her husband George Turner and her cousin Cary Hampton Weller, their executors, administrators, and assigns, in equal shares and proportions. And the said testatrix directed the said trustees to pay, assign, or transfer the said respective sums and moneys to G. Turner and C. H. Weller, or to their respective executors, administrators, and assigns. And the said testatrix directed and appointed all the freehold, copyhold, and leasehold messuages, &c., and hereditaments and annuity of which she was seized at the time of making the settlement, and the rents, issues, and profits thereof, unto and for the absolute use and benefit of her husband G. Turner and her cousin C. H. Weller, their heirs, executors, administrators, and assigns, forever, as tenants in common.

In 1798, Messrs. Hilton, Shrubb, and Roberts had received the whole sum of 10177. Os. 114d., and invested the same in the purchase of 6977. 19s. 8d. and 690l. 11s. 6d., old 5l. per cent. bank annuities, in their names.

In May, 1799, Messrs. Hilton, Shrubb, and Roberts, in pursuance of their power, sold certain parts of the hereditaments for 9501., which they invested in their names in the purchase of 16961. 8s. 7d., reduced 31. per cent. annuities; 13127. 2s. 6d. and 581. 13s. 4d., parts of which were subsequently applied for the redemption of the land tax upon some of the settled estates, and left a sum of 325l. 11s. 9d. reduced 31. per cent. annuities only.

Messrs. Shrubb and Roberts survived Mr. Hilton, and in May, 1819, they, during the life of Sally Turner, sold other parts of the settled estates for 15002., which was invested in the sum of 2155l. 14s. 5d., 3l. per cent. reduced annuities, in their names.

In 1805, 1808, and 1817, various parts of the settled estates were exchanged for other hereditaments.

On the 9th of May, 1819, Sally Turner died, without having altered or revoked her will, there never having been any issue of her marriage with George Turner.

C. H. Weller, by his will, dated the 13th of May, 1819, after devising a house at Brighton to his sisters Mary and Charlotte Weller and their heirs, as tenants in common, gave all the rest and residue of his estate and effects, both real and personal, of what nature or kind soever, after payment of his just debts, funeral and testamentary expenses, to his said sisters, equally to be divided between them, their executors, administrators, and assigns, and he appointed them executrixes of his will.

C. H. Weller died on the 20th of May, 1819, without having revoked his will, which was proved by both the executrixes.

On the 7th of December, 1820, in contemplation of a marriage between George Turner and Ellen Meliora Hilton, a settlement was executed by which 6000l., her fortune, was secured for her benefit. George Turner, by the same deed, also agreed to secure her an annuity of 2001. a year for her life, in case she should survive him; and by

Quennell v. Turner.

a bond of even date, George Turner became bound to Adam Chadwick and John Roberts in the penal sum of 3000l., conditioned to be void on payment by the heirs, executors, or administrators of the said George Turner, to the said Ellen M. Turner in case she should survive him, for the remainder of her life, of one annuity of 2001. a year, free from taxes and without any abatement. It was also, by the indenture of settlement, declared that the annuity of 2001. a year was to be taken in lieu of all dower and thirds.

This marriage was duly solemnized in January, 1821, and John Roberts having died, by indentures of release and appointment, dated the 10th and 11th of September, 1823, and made between Joseph Shrubb of the first part, George Turner of the second part, and N. Hilton and Percival Walsh of the third part, Messrs. N. Hilton and P. Walsh were appointed trustees of the settlement of the 4th of June, 1796, in the place of Joseph Shrubb, John Hilton, and John Roberts, and the real and personal estate, with the exception of the copyhold hereditaments, (which had never been surrendered,) were vested in N. Hilton and P. Walsh upon the trusts of the settlement of 1796.

On the 28th of May, 1824, Adam Hilton was appointed a trustee of the settlement of 1796, in lieu of N. Hilton, who had died, and in like manner the trust estate was again vested in P. Walsh and Adam Hilton.

At the date of the will of George Turner, and at the time of his death, the estates and property subject to the trusts of the indenture of settlement of the 4th of June, 1796, consisted of certain farms, some of which comprised lands of freehold and copyhold tenure, but which were let together, and occupied as one farm, and of divers freehold and copyhold cottages and lands, and of a freehold rent charge of 21. 8s. issuing out of Hawkhurst Farm. It also consisted of 43197. 4s. 8d., new 41. per cent. annuities, of 24811. 6s. 2d., reduced 31. per cent. bank annuities, of 130l. 14s. 4d., 3l. 10s. per cent. annuities, standing in the names of Adam Hilton and P. Walsh in the books of the Bank of England, but by the trusts of the settlement the sums of 24811. 6s. 2d. and 1307. 14s. 4d. were to be laid out in the purchase of real estate, to be settled upon the uses to which the lands sold were subject.

George Turner, by the will of his wife Sally, dated the 2d of January, 1797, was entitled to a moiety of the freehold and copyhold estate, and to a moiety of the sums of stock, subject only to the legacy of 500l. to Charlotte Weller, and on the 24th of July, 1835, he, by his will, after confirming the settlement made on his second marriage, said, "I do hereby charge and make chargeable all and every my freehold hereditaments and estate in the county of Surrey, and moneys standing in my name in the public funds, with the payment of the said annuity to my wife, which is to be paid free from all expenses and deductions whatsoever. And subject to the payment of the said annuity, I give, devise, and bequeath the same freehold hereditaments and estate and money in the public funds to my niece and godchild Sarah Quennell, her heirs, executors, administrators, and assigns, forever, provided that in case my said niece and