No. 6. Phillips v. Gutteridge, 32 L. J. Ch. 2. If the daughter received less than the £60 during her life, would not her representatives be entitled after her death to continue the receipt of the dividends until the deficiency was made up? Mr. Malins and Mr. Rudall referred to The Attorney-General v. Poulden, 3 Hare, 555; Earle v. Bellingham, 24 Beav. 445; 27 L. J. Ch. 545; Mills v. Drewitt, 20 Ibid. 632. Mr. Greene and Mr. Beavan, for the annuitant, were not called upon. The LORD CHANCELLOR said that the decree was right. The general rule was, that an unlimited indefinite charge upon "rents and profits" was a charge upon the corpus. Here the charge was "out of the rents and profits" to pay the annuity to his daughter for her life; it was not out of the rents and profits during her life. The right of the trustees was general and indefinite. The charge, therefore, on the rents and profits continued until the annuity was satisfied. The decision in Foster v. Smith went upon this, that the effect of the gift over was to reduce the charge on the rents and profits to a charge during the life of the annuitant; but on the death of the annuitant, the trustees were to convey over the estate to the testator's sisters; and the right, therefore, to receive the rents and profits ceased on the death of the annuitant. Of necessity, therefore, in Foster v. Smith the trust to receive the rents and profits was construed to be a right to receive them during the life of the annuitant. In Earle v. Bellingham, the Master of the Rolls followed Foster v. Smith, and there the trust was, after the death of the annuitant, to transfer a specified sum; and there was, therefore, an intention to have the corpus kept in its entirety for the benefit of those who came afterwards, and who were intended to have the corpus in its integrity. But here there were no such words; but the gift over was in terms made subject to what was necessary for the legal operation of the antecedent gift, and the party claiming the residue could only claim what remained after the effect of the antecedent gift was exhausted. Did, then, this charge upon the rents and profits constitute a charge upon corpus? and his Lordship was of opinion that it did, and he found nothing to rebut that in the terms of this will. He could not, therefore, alter the decree, as he considered that the Vice-Chancellor had put a proper interpretation upon the will; and the annuitant must, therefore, continue to receive the annuity out of the corpus. Where the testator directed his trustees to pay to his widow £100 a year out of a certain fund consisting of the residue, after paying debts, of the proceeds of his estate, and then directed that during the lifetime of his wife the trustees should pay the residue of the income of the fund to other persons, and after her death directed the residue of the fund to be divided amongst a class, Vice-Chancellor Sir W. PAGE WOOD decided that the intermediate gift of the surplus income during the life of the annuitant, together with a discretionary direction for postponing the conversion, indicated an intention that the residue of the fund which was to be divided at the annuitant's death meant the residuary fund out of which the income was payable; and that although the income of that fund was not sufficient to pay the annuity, the arrears were not chargeable upon the corpus: Stelfox v. Sugden (1859), Johnson, 234. But in Hickman v. Upsall (1860), 2 Giff. 124, where the testator bequeathed a debt or sum of £1000 which was due to him, to trustees upon trust (when called in or paid) to invest the same upon securities, and to stand possessed of the debt and of the interest to accrue due thereon from his decease, and also of the securities, upon trust thereout to pay the yearly sum of £30 to the plaintiff (a daughter), and to pay to other persons during the life of the daughter certain aliquot parts of the residue of the interest or dividends; and from and after the decease of the plaintiff, he gave the said debt (in aliquot parts) to others, 66 the Vice Chancellor, Sir J. STUART, on the ground that the securities as well as the interest were expressly given in trust to pay the annuity, decided that the capital was liable to make good the annuity. In an Irish case, in 1887, Re Moore's Estate, 19 L. R., Ir. 365, there was a bequest of leasehold lands of S. Upon trust, out of the rents and profits of said lands, to pay my just debts, ... and subject thereto, out of the rents and profits of my said lands, to my wife J. M., during her life, an annuity or yearly rent-charge of £150 per annum, and subject thereto I bequeath the said lands of S. upon trust to receive the rents and profits, and to apply the same for the maintenance, &c. of my son," and upon his attaining 21, to assign him the lands and accumulations (if any) of the said rents and profits, &c., it was held by MONROE, J., on the authority of the principal case, and distin guishing Stelfox v. Sugden, that the annuity was a charge upon the corpus of the leaseholds. - Where an annuity charged on the rents and profits of land is in arrear, the person entitled to the arrears is entitled in equity to have them raised by sale or mortgage of the estate; and the Court will make a decree accordingly, although the person claiming relief is entitled to legal remedies by distress and perception of rents. Cupit v. Jackson (1824), 13 Price, 721; Scottish Widows' Fund v. Craig (1882), 20 Ch. D. 208; 51 L. J. Ch. 363. Where the owner of land liable to pay annuities for lives charges the inheritance to secure them, and then by his will gives the land to a tenant for life and remainderman, the annuities must be capitalized, and the burden shared by the tenant for life and remainderman in proportion to the value of their respective interests: In re Muffett, Jones v. Mason (1888), 39 Ch. D. 534, 57 L. J. Ch. 1017, a decision of CHITTY, J., following Bulwer v. Astley (1843), 1 Phil. 422, 13 L. J. Ch. 329; Yonge v. Furse (1855), 20 Beav. 380, 24 L. J. Ch. 643; and Yates v. Yates (1860), 28 Beav. 637, 29 L. J. Ch. 872. AMERICAN NOTES. It has been held to the contrary of the principal case in this country. In Delaney v. Van Aulen, 84 New York, 16, the testatrix gave the residuum of her estate in trust, "to receive the rents and profits of the real estate, to invest the personal estate, and to apply the rents and profits, and the income of the personal estate," to the use of her husband B. for life, except to pay an annuity to C. There was no devise on bequest over after C.'s death. The rents and profits proved insufficient to pay the annuity. Held, that only the rents and profits were chargeable. The Court distinguished the principal case on the ground that here, unlike that case, "the right to receive the profits is not general and indefinite; it has a limitation of time." The Court cited Heneage v. Lord Andover, 3 Y & J. 360; Allan v. Backhouse, 2 V. & B. 65; Forbes v. Richardson, 11 Hare, 354; Bootle v. Blundell, 1 Mer. 192; Green v. Belchier, 1 Atk. 505; Wilson v. Halliley, 1 R. & M. 590; Small v. Wing, 5 Bro. P. C. 66; Baker v. Baker, 6 H. L. 616; Birch v. Sherratt, L. R., 2 Ch. App. 642. Each case, the Court say, is to be considered on its own circumstances, and the testator's intention derivable from the whole will and the circumstances is to prevail. "We cannot fail to perceive that the rigid rule stated in Allan v. Backhouse (supra), has been relaxed, and that the Courts may now exercise their judgment." The Court queried whether deficiencies in payments might be supplied from increased avails in subsequent years; but in Pierce's Estate, 56 Wisconsin, 560, it was held that this could not be done where the annuity was payable out of the proceeds of the testator's farm, "each and every year," and was payable quarterly the will makes no provision for any possible deficiency. In Nudd v. Powers, 136 Massachusetts, 273, the testator bequeathed to his daughter, for life, a certain sum of money a month. "out of the rents" of certain houses, the land being devised to others, subject thereto, and after their death and that of the daughter, the same were given over forever, with the statement that "said legacy conveys a fee simple in all my said real property "to the last taker. Held, that the corpus was not charged, and that this No. 7. Carmichael v. Gee, 5 App. Cas. 588, 589. Rule. - or the life estate could not be sold to provide a fund for her. Citing Wilson v. Halliley, 1 R. & M. 590; Foster v. Smith, 1 Phil. 629; Philipps v. Philipps, 8 Beav. 193; Earle v. Bellingham, 24 Beav. 445. There was also a condition against selling intoxicating drinks on the premises, and an absence of any power to sell. "The intention expressed is clear, and the question is purely one of intention. Baker v. Baker, 6 H. L. Cas. 616," etc. So in Stephens v. Milnor, 24 New Jersey Equity, 358, it was held that " an annuity or yearly sum of $200, to be paid yearly and every year for fifteen years from and after any decease," out of certain income, is not chargeable on the corpus. The corpus will be charged with the annuity, if the intention appears. Degraw v. Clason, 11 Paige (New York), 136; Davis' Appeal, 83 Penn. St. 348; Nash v. Taylor, 83 Indiana, 349; Owens v. Claytor, 56 Maryland, 129; Hawley v. James, 5 Paige Chancery (New York), 318; 3 Lawy. Co-Op. ed. 734. No. 7. CARMICHAEL v. GEE. RULE. WHERE a testator directs such a sum of money to be invested as will produce a certain annuity, and gives that annuity to A., and the residue of his estate to others, without anything to show that the fund invested should remain in its integrity for ultimate distribution; then the direction to invest is presumed to be merely ancillary to the gift of the annuity; and if the amount originally invested becomes insufficient or if the estate is insufficient to answer the annuity, the deficiency must be made good out of the capital. [588] Carmichael v. Gee, 5 App. Cas. 588-598 (s. c. 49, L. J. Ch. 829-833). Appeal from an order of the Court of Appeal which had reversed a previous order of Vice Chancellor HALL in an administration suit of Gee v. Mahood, 9 Ch. D. 151. Robert Gee, by a will dated the 5th of November, 1868, appointed his then wife, Elizabeth Gee (now respondent), the Rev. W. P. Trevelyan, and Samuel Mahood, his executrix [* 589] and executors * and trustees, and he gave by his will some No. 7. - Carmichael v. Gee, 5 App. Cas. 589, 590. specific and pecuniary legacies, and an annuity of £20 to one M. T. Dribble, for her life, payable quarterly. He then proceeded as follows: "I give, devise, appoint, and bequeath all other the real estate to which I shall be entitled at my decease; and I bequeath the residue of my personal estate to which I shall be entitled, to my said wife and W. P. T. and Samuel Mahood, and the survivor and survivors of them, their heirs, executors, &c., according to the nature and quality thereof respectively : Upon trust that my said wife and W. P. T. and S. M., their heirs, executors, &c., do and shall from time to time, and at all times hereafter, receive and take the rents, &c., upon the trusts hereinafter declared." The first trust was to grant building leases. not exceeding 1000 years "of all or any part of my said real estate," and, when they should think fit, " to sell and dispose of all my real and personal estate," or parts thereof, as therein mentioned. And they were to stand possessed "of the moneys arising from the sales," in trust to invest in the stocks of Great Britain or India, or on mortgages of copyhold or freehold estates, "with liberty for the trustees with the consent in writing of my said wife during her life," to vary the investments. “And upon farther trust to set apart a sufficient portion of such investments as will produce the annuity of £1200 a year which I bequeath to my said wife for her life, payable quarterly on" the usual quarter days, "the first payment to be made and become due on the first of such days as shall happen after my decease, such annuity, in case of my said wife's second marriage, to be reduced to the annual sum of £150 [which was to be paid as the other would have been]. And, subject to such investment in favour of my said wife, in trust to set apart £5000 other part thereof for my dear daughter Zara on her attainment to the age of twenty-one years, or marriage, which shall first happen, to be settled on her and her children as the trustees shall, by deed, declare. And as to the entire residue of my said trust estate, and as to that part thereof set apart in favour of my said wife, after her death, and as to such part thereof as shall be no longer required to be set aside, in consequence of her second marriage, in trust as to one moiety for all and every the three children of my late dear daughter Jane Theophila Carmichael, in equal shares." * The [* 590] other moiety was to go to Zara. If the children of Theophila should die before a vested interest was acquired, the |