No. 3. In re Earl of Chesterfield's Trusts, 94 Ch. D. 648–654.

v. Cox, L. R., 8 Eq. 343; 38 L. J. Ch. 569; Wright v. Lambert,

6 Ch. D. 649; and it is so laid down in Jarman on Wills,

4th ed. p. 609.

But in an unreported *case of Beavan [* 649] v. Beavan (the principal case, No. 2, ante, p. 288, et seq.), decided in 1869, before Cox v. Cox, L. R., 8 Eq. 343; 38 L. J.

Ch. 569, and Wright v. Lambert, 6 Ch. D. 649, this * very [* 650] question was argued, and it was held that compound

interest should be allowed.

[CHITTY, J. I do not see on what ground the remainderman, * rather than the tenant for life, should be enti- [* 651] tled to what is in substance attributable to income. ]

Beavan v. Beavan, ante, p. 288, certainly appears to adopt the more logical * principle. It seems also right [* 652] that the calculation should be made as from the testator's death, and not from the expiration of a year afterwards.

[CHITTY, J., referred to In re Grabowski's Settlement, L. R., 6 Eq. 12; 37 L. J. Ch. 926.]

*Romer, Q. C., and Bromehead, for the respondents, [* 653] the Earl of Carnarvon and Lord Porchester:

We think Beavan v. Beavan lays down the more correct principle for calculating an apportionment in such a case as this. CHITTY, J. :

It appears to me that Beavan v. Beavan, adopts the right principle, and I therefore follow it in the present case.

The order stating the opinion of the Court was, so far as is material, in the following form:

"Upon the petition, &c., this Court is of opinion that the said Tynte moneys are apportionable between principal and income by ascertaining the respective sums, which, put out at £4 per cent. per annum on the 1st of December, 1871, *the day [* 654] of the death of the seventh Earl of Chesterfield, and accumulating at compound interest calculated at that rate with yearly rests, and deducting income tax, would, with the accumulations of interest, have produced, at the respective dates of receipt, the amounts actually received; and that the aggregate of the sums so ascertained ought to be treated as principal and be applied accordingly, and the residue should be treated as income: And that the amount apportioned in respect of income is payable to the Earl of Carnarvon in his own right, and as representing his late wife, Evelyn, Countess of Carnarvon, deceased: And that the

No. 4. - Rede v. Oakes. - Rule.

policy moneys, including bonuses, after deducting and repaying the sums advanced for premiums with simple interest at 4 per cent., are apportionable and distributable in the same way: And this Court is also of opinion that the legacy and other duty is payable out of capital and income according to their respective liability thereto: And that the costs of the petitioners and respondents of this petition ought to be apportioned between capital and income according to their respective amounts.

ENGLISH NOTES.

The rule has since the latter of the principal cases been treated as established. It is followed by KAY, J., and applied by him to the apportionment of the value of a reversion forming part of the residuary estate of a testator, which it is proposed to sell. In re Hobson, Walker v. Appach (27 Oct., 1885), 55 L. J. Ch. 422, 34 W. R. 70, 53 L. T. 627. In Re Moore, Moore v. Johnson (1885), 54 L. J. Ch. 432, 33 W. R. 447, settled money was invested on a mortgage the interest on which fell into arrear, and the investment was ultimately realized at a loss. PEARSON, J., directed the apportionment, on a calculation of simple interest only. It is perhaps questionable whether such a case afforded any solid ground for refusing to admit compound interest into the calculation.

The rule is again applied by NORTH, J., in Re Godden, Teague v. Fox (1892), 1893, 1 Ch. 292; 62 L. J. Ch. 469; and by KEKEWICH, J., in Re Hengler, Frowde v. Hengler (1892), 1893, 1 Ch. 586, 62 L. J. Ch. 383.

TRUSTEES for sale of land are not entitled unless specially empowered, or unless clearly for the advantage of the beneficiaries, to join with owners of other lands in selling both parcels at one price for the whole, and in apportioning that price according to previous arrange

ment between them: particularly where the result has been to import into the sale depreciatory conditions as to title.

Rede v. Oakes.

34 L. J. Ch. 145-149 (s. c. 10 Jur. (N. S.) 1246–1248).

This was a suit, by vendors against a purchaser for [145] specific performance of a contract for the sale of lands.

The premises, the subject of the contract, consisted of three parcels; the lands comprised therein being held under several different titles, which varied in length.

The chief part of the estate was devised by the will, executed on the 17th of November, 1821, of Robert Rede, who died in August, 1822, upon limitations under which the plaintiffs, the four daughters of Robert Rede Rede, had become entitled as tenants in common.

Upon the daughters' marriages, their respective shares under the will of Robert Rede were, by indentures, dated severally the 20th of March, 1845, the 4th of August, 1846, the 9th of January, 1850, and the 25th of January, 1859, vested, or agreed to be vested, in trustees, in trust for them and their respective husbands for their lives, with remainder to their children; and the trustees of the four several settlements were empowered, with the consent of the four daughters severally and their respective husbands, to sell the shares respectively comprised therein.

Another, and small part of the estate included in the contract for sale, was vested, with a power of sale, in the trustees of the settlement made on the 13th of November, 1821, on the marriage of Robert Rede Rede with the plaintiff Louisa Rede, now the widow of Robert Rede Rede, then Louisa Henshaw, in trust for him and her for their lives, with remainder to the children of the marriage, that is to say, the plaintiffs, the four daughters of Robert Rede Rede.

The plaintiff Louisa Rede was entitled absolutely in fee simple to the rest of the premises comprised in the contract, under the will, dated the 1st of February, 1831, of her late husband, Robert Rede Rede, who died on the 13th of April, 1852, without having altered or revoked his will, which was duly proved by the plaintiff, Louisa Rede, as the executrix, in December, 1852.

No. 4. - Rede v. Oakes, 34 L. J. Ch. 145, 146.

The plaintiffs, who were severally the trustees of the five several settlements already referred to, Louisa Rede, the widow, and the four daughters, who were the only children of the late Robert Rede Rede, and their respective husbands, all concurred in the expediency of a sale of the estate as one entire estate, they being the only persons whose consents were necessary to sales of the several portions of it. The estate was accordingly put up to public auction as an entire estate, but in several lots, subject to certain conditions of sale. It was not then sold; but on [* 146] the 8th of March, 1862, the * property comprised in lots 1 and 7, was agreed to be sold by private contract to the defendant, J. H. P. Oakes, for £16,650, subject to the conditions of sale already mentioned, so far as they were applicable to a sale by private contract.

The sixth of these conditions was: "The abstracts of title to the property, other than that part of which Mrs. Rede is vendor, shall commence as follows, viz., as to the manors and freehold portion, with indentures, bearing date respectively the 5th and 6th of January, 1803, the 25th and 26th of March, 1805, the 29th and 30th of November, 1805, the 1st and 2nd of March, 1807, the 1st and 2nd of October, 1813, and the 31st of December, 1845, which respectively comprise certain parts thereof; and as to the copyhold portion, with the admissions of the 30th of December, 1825, the 27th of December, 1833, and the 19th of February, 1823; and as to the leasehold portion, with indentures dated respectively the 31st of March, 1788, and the 27th of March, 1797; and as to such parts of the said manors and freehold portions as are not comprised in any of the aforesaid indentures (other than in the said indenture of the 31st of December, 1845), the title shall commence with the will of Robert Rede, Esq., dated in 1821, and proved in 1822; and as to Mrs. Rede's part of the property, consisting of several cottages, the title shall commence with the will of her late husband, dated the 1st of February, 1831, and proved the 13th of December, 1852, with a declaration of a previous possessory title by him of upwards of fifteen years.

The property comprised in the indenture of the 31st of December, 1845, was that small part of the estate comprised in the contract, which was held on the trusts of the marriage settlement of the late Robert Rede Rede and the plaintiff Louisa Reed.

By an agreement entered into, on the 8th of October, 1862, between the several plaintiffs, after the sale to the defendant, it was agreed that £140 should be considered as the value of such part of the estate as was the property of Mrs. Rede in her own right, and be received by her; that £352 should be considered the value of the part comprised in the marriage settlement of Robert Rede Rede and the plaintiff Louisa, his wife, and should be received by the trustees of that settlement; and that £16,158 should be considered the value of the residue of the estate, being the part which belonged to the plaintiffs, the four daughters, and which was comprised in their respective marriage settlements, and should be received by the trustees of those settlements, and be applied accordingly. This agreement was communicated to the defendant.

The defendant subsequently objected to complete his purchase, and the plaintiffs filed a bill praying specific performance. The defendant, in his answer, submitted that the plaintiffs, the trustees of the marriage settlements of the plaintiffs, the four daughters of Robert Rede Rede, in whom severally was vested the property devised by Robert Rede's will, and the plaintiffs, the trustees of Robert Rede Rede's marriage settlement, in whom was vested another part of the premises comprised in the defendant's contract, were not competent as such trustees to enter into the agreement of the 8th of October, 1862, for the apportionment of the purchase-money; that the several properties comprised in these different marriage settlements, being vested in several sets of trustees, under the trusts and powers contained in several settlements, ought to have been sold separately; that the contract to sell all the properties at one price was not valid, or such a contract as a purchaser could safely complete; and that such objections to the validity of the contract were in no way remedied or displaced by the agreement of the 8th of October, 1862, for apportionment of the purchase-money. The defendant, by his answer, claimed the same benefit of these objections to the contract as if he had demurred to the bill.

The cause was heard before the MASTER OF THE ROLLS (Sir J. ROMILLY) and a decree made, to the effect that the contract ought to be specifically performed. After the usual reference as to title, his Lordship directed an inquiry in what proportions, and among whom, the purchase-money ought to be