Baynham obtained letters of administration to his father, and died. Richard Eikley, the surviving life in the lease, died on the 3d of October, 1785. Lucy Baynham obtained letters of administration with the will annexed to Thomas Landon, the elder. She also obtained administration to Thomas Landon, the son, and to her mother Mary Baynham and administration de bonis non to her father George Baynham.

No application having been made for renewal of the lease previous to August, 1786, and no step having been taken in consequence of that neglect, Lucy Baynham caused a written notice

*

according to the provisions of the lease, dated the [* 297] 4th of August, 1786, to attend in the church porch for

that purpose on the 21st to be fixed on the door of the church of Stretton. She also caused a copy of the notice to be served upon the agent for the Hospital; who upon the death of Eikley procured the tenants to attorn, and received the rents and profits of the premises.

Lucy Baynham attended according to the notice: but no person attending for the Hospital, and her applications for renewal being rejected, she filed the bill, praying, that the Defendants should be decreed to grant a new lease upon payment of such fine and upon such terms as to the Court should seem just and reasonable.

Mr. Graham and Mr. Short, for the Plaintiff. The decisions by the House of Lords upon the late cases from Ireland seem to incline against the renewal of these leases: Vipon v. Rowley, 1774; Kam v. Hamilton, 1776; Bateman v. Murray, 1779; but in this case the Plaintiff is entitled by express words to renewal, whenever any life or lives shall drop; and the delay arises from poverty. In Lord Ross v. Worsop, 4 Bro. P. C. 411, and Rawstorne v. Bentley, 4 Bro. C. C. 415, a renewal was decreed. Where one part of a covenant is in opposition to another, and they cannot be reconciled, upon the principle of the construction of deeds the former ought to stand, and the latter to be rejected.

Mr. Lloyd and Mr. Stanley, for the Defendants, were stopped by the Court.

MASTER OF THE ROLLS [Sir RICHARD PEPPER ARDEN]. I shall lay the Irish cases out of the question. They went upon what Lord Lifford calls a local equity. They had gone on upon the idea, that a renewal might be claimed at any distance of time. Lord Thurlow upon the appeal to the House of Lords in Bateman v. Murray disavowed that; and said, he could not sitting here administer an equity, which did not arise upon the case; and the decree made in Ireland was reversed; upon which an act of Parliament was procured in Ireland to put an end to it. You will see a very elaborate · judgment of Lord Lifford's in Vernon and Scriven's Reports (1).

I strongly protest against the argument used by the learned Judges in Cooke v. Booth, Cowp. 819, as to construing a legal instrument (1) Boyle v. Lysaght, and Magrath v. Lord Muskerry, Vernon and Scriven's Reports, 135, 166.

by the equivocal acts of the parties and their understanding upon it; which I will never allow to affect my mind. That case was sent to law by Lord Bathurst. The learned Judges thought fit to return an answer to the Chancellor, that the legal effect was a perpetual renewal, upon the ground, that by voluntary acts, which the parties might or might not have done, the parties themselves had put a construction upon it (1). Mr. Justice Willes stated that as his only ground. Lord Mansfield made it his chief ground: but that ground was disapproved by Lord Thurlow; and is, I think, totally unfounded. I never will construe a covenant so. I never was more amazed; and Mr. Justice Wilson who argued it with me, was astonished at it. When it came back, Lord Bathurst not having retained the Great Seal long enough for it to come again before him, it came before Lord Thurlow; who said, that sitting as Chancellor when he asked the opinion of a Court of Law, whatever his own opinion might be, he was bound by that of the Court of Law; therefore he decreed a renewal; but said, he should be very glad, if Mr. Booth would carry it to a superior tribunal. We had a consultation; and I wrote to Mr. Booth upon it: but he being only tenant for life, refused to appeal. There stands the case of Cooke v. Booth. I see, I have put a note to that case, referring to Tritton v. Foote, 2 Bro. C. C. 636; which is a positive determination against the claim (2). I collect therefore from these cases this; that the Courts, in England at least, lean against construing a covenant to be for a perpetual renewal, unless it is perfectly clear, that the covenant does mean it. Furnival v. Crew, 3 Atk. 83, which is relied on in Cooke v. Booth, had clear words for a perpetual renewal; which made it impossible to construe it otherwise.

[* 299]

In this case how could it be upon the death of the first life at "the expiration of these presents?" Those are extraordinary words. The construction for the Plaintiff is, that the lessor will renew, whenever any life or lives shall drop; that it does not say, that if they come at the end of the third life, they may not have a renewal. I admit it upon that clause: but see the proviso, that follows; that if upon or after the death of any of the life or lives, the said Thomas * Landon, his executors, &c. shall refuse or neglect to renew, &c. Whatever doubt there may be upon the first part, there can be none upon this clause; unless it is argued, that Lord Carnarvon not taking advantage of it proves, that he did not understand it so: but I lay out of the case the conduct of the party not availing himself of that clause. I cannot argue, as the Court of King's Bench did in Cooke v. Booth; and am clearly of opinion, the lessee has not entitled himself to the benefit of the covenant; and they might, if they pleased, have ejected him for not applying, when the first life dropped. Therefore the right

(1) Post, 694; vol. xvi. 156.

(2) Sce Bridges v. Hitchcock, 1 Bro. P. C. 522.

of renewal is forfeited; the Plaintiff has no claim here; and the bill must be dismissed (1).

1. A COVENANT for renewal of such a nature as would virtually lead to a grant in perpetuity, will never be enforced in Equity, where no sufficient consideration for such a grant appears, and where the parties have not expressed themselves in language devoid of all ambiguity. See, ante, note 4 to Taylor v. Stibbert, 2 V.

437.

2. The principal case was considered as one clear of all shadow of doubt in Maxwell v. Ward, 1 M'Clel. 466.

3. The dictum, ascribed in the report of the present case to Lord Thurlow, that, “when he asked the opinion of a Court of Law, he felt bound by it, whatever his own opinion might be," has not been acquiesced in. Lord Eldon, and Chief Baron Richards, held it to be clear, that a Court of Equity, though it may think fit to direct a case to a Court of Law, is not bound by the certificate of the Court of Law. Prebble v. Boghurst, 1 Swanst. 323; Maxwell v. Ward, 11 Price, 18.

HALES v. MARGERUM.

[ROLLS.-1796, DEC. 23.]

TESTATOR gave 1000l. stock to a married woman for her separate use, and whenever she should die, to be absolutely in her own power to dispose of by will or writing purporting to be her will to any person or persons, purpose or purposes, she should think proper: but, in case of failure of any such disposition or appointment, to go over: this is not a power, but an absolute gift, qualified only to exclude the husband upon the death of his wife: therefore it passed by general words in her will. (a)

SAMUEL RUTTER by his will gave to his executors 1000l. Consolidated Bank Annuities upon trust " for the sole use and benefit of my daughter Elizabeth Tichborne, the same not to be subject to the debts, incumbrances or control or engagements, of her husband Robert Tichborne, or any other husband she may hereafter be married to; and all interests and dividends, which shall become due and payable for the same after my decease, shall be paid to her for her own separate use and benefit only; and her own receipt notwithstanding her coverture shall be to them or either of them a sufficient discharge during her life; and whenever she shall happen to die, the said 10007. Annuity Stock shall be absolutely in her own power to dispose of by her last will and testament or any deed or writing purporting her last will and testament to any person or persons or to

(1) Bayly v. The Corporation of Leominster, 3 Bro. C. C. 529, ante, vol. i. 476, and the references in the note.

(a) As to the execution of a power, see ante, note (b) to Standen v. Standen, 2 V. 589. In the present case the absolute property being given, the power becomes nugatory, and is construed to be nothing more than an anxious expression by the donor, that she may have an uncontrolled power of disposing of the property. 2 Story, Eq..Jur. 1394, and cases cited. Smith v. Bell, 6 Peters, 68; Mr. Chancellor Kent has critically reviewed the authorities in his learned opinion in the case of Methodist Episcopal Church v. Jaques, 3 Johns. Ch. 86–114.

any purpose or purposes, she shall think proper; her being under coverture at the time of her death or any other restriction or pretence to the contrary in any manner notwithstanding: but in case of failure of any such disposition or appointment then and in such case the said 1000l. stock shall devolve to and become the right and property of my grand-daughter Elizabeth Tichborne, to be paid or assigned and transferred to her so soon after the decease of her mother as the same can conveniently be done."

*

Elizabeth Tichborne, the grand-daughter of the testator, married William Everest; and she died in the life of her mother, [*300] the daughter of the testator; who by her will after giving some legacies proceeded thus: "All my freehold messuages, lands, woods, and hereditaments, and also all my stocks, funds, moneys and securities, and all other my real and personal estate and effects whatsoever I give, devise and bequeath, the same respectively unto and to the use of Samuel Margerum," his heirs, executors, administrators and assigns, respectively upon trust for the benefit of such of her three grandchildren, Elizabeth, Frances, and Robert Everest, as shall live to attain the age of twenty-one, as tenants in common, and to their, her, or his heirs, executors, administrators and assigns, respectively; the issue of any dying under twenty-one to take the share of the deceased parents; with survivorship upon the death of any, and a limitation over upon the death of all, her said grand-children, under age without leaving issue.

Elizabeth Everest married Charles Hales.

The object of the bill was to have the benefit of the disposition made by the will of Elizabeth Tichborne; and the question made at the bar was, whether she had by her will executed the power of appointment over the 1000l. stock bequeathed by the will of Samuel Rutter.

The cases cited were Sir Edward Clere's Case, 6 Co. 17. b. Ex parte Caswell, 1 Atk. 559. Andrews v. Emmot, 2 Bro. C. C. 297. Buckland v. Barton, 2 Hen. Black. 136, and Standen v. Standen, (ante, Vol. II. 589.)

MASTER OF THE ROLLS. [Sir RICHARD PEPPER ARDEN]. I suspended my opinion in this cause with some expectation of the final determination of Standen v. Standen; which is gone to the House of Lords (1).

I have no difficulty upon this case; for it is stronger than even Standen v. Standen; and I am clearly of opinion, that under the words of the will this sum of 1000l. Bank Annuities was to all intents and purposes the absolute property of this married woman, as fully as any married woman can enjoy an absolute gift, and merely qualified in respect of her situation as a married woman, lest upon her death it should go to her husband. Upon that ground it is out of all the cases; Andrews v. Emmot, Buckland v. Barton, and Stan

(1) The decree in Standen v. Standen has been since affirmed, 6 Bro. P. C. 193. See the note, ante, vol. ii. 594.

den v. Standen. The question is, whether she had a mere power and whether the general words, she has used in her will, are an execution of that power, and are sufficient to show, the testatrix intended to comprehend the subject. Andrews v. Emmot is a leading case upon this point; and has perfectly and clearly established, that to execute a power there must be a direct reference to it, or a clear reference to the subject, or something upon the face of the will, or independent of it some circumstance, which shows, the testator could not have made that disposition without having intended to comprehend the subject of his power. In Standen v. Standen that case is fully commented upon by the Lord Chancellor. The will contained only general words; and the question was, whether they would comprehend a sum of money, originally the wife's, which the husband, in case he should die without children, had power to dispose of, but not if he should have children. When the testator made his will, his wife was alive, and the circumstances might or might not change. At his death his circumstances were so much reduced, that without the sum, over which he had that contingent power, there was not sufficient to pay the legacies. Lord Kenyon very properly refused to go into that evidence. The Lord Chancellor says, non constat, what was his situation, when he made the will. Therefore in that case both Lord Kenyon and the Lord Chancellor were of opinion, that his estate could not be held fairly to comprehend the sum, over which he had that power of disposition.

Upon full consideration of this case, and fully agreeing with what is laid down in Andrews v. Emmot and Buckland v. Barton, I am of opinion, his is not a mere power to dispose, but an absolute gift, qualified only as to her situation as a married woman, and to prevent the husband from taking as administrator in case of her death. If the interests of married women are criticised, as this has been, I do not know, how property could be given to a married woman: it would be all power. When this testatrix gives all her stock and all her real estate, she does mean to include this sum. It must be included under the word " my; being an absolute interest in her. I do not now want the authority of Standen v. Standen; though I do not quarrel with it.

WITH respect to the execution of powers, see, ante, notes 1 and 3 to Bull v. Vardy, 1 V. 270, note 4 to Standen v. Standen, 2 V. 589, and note 5 to Blake v. Bunbury, 1 V. 194.