1843.-Waters v. Bailey.

It appeared from the evidence in the cause that the will of Elizabeth Waters was drawn up and written by the plaintiff Francis Waters; and that, though he knew of the deed of the 2nd March 1791, he made no mention of it to her. Whether she had notice of it from any other source did not appear. The deed of 1791 was produced by the plaintiffs at a meeting of the friends of Elizabeth Waters which took place after her decease.

Mr. Wigram and Mr. Piggott, for the plaintiffs, observed, that, both the settlements being voluntary, the first must prevail; and that, though the conduct of the plaintiff Francis in drawing the will of Elizabeth Waters without reminding her of the deed of 1791 might be wrong, it could not affect his equity. The renewal by the tenant for life must enure for the benefit of those in remainder under the first settlement: Sanders on Uses, vol. 1, p. 335. The deed of 1796 contained a remarkable recital; but looking to the date of the marriage, and the situation of the parties, the truth of it was highly improbable.

*Mr. Russell, and Mr. Wood, for the defendants. [*223] Where several persons hold leasehold property by a common title, and are cognisant of each other's rights, there if one obtains a renewal of the lease, it shall enure for the benefit of all. But no case has gone the length of deciding that that doctrine applies to a person in the situation of this widow. She had no knowledge of any title of any other person, but on the contrary acted under an instrument which gave her an absolute power over the property; the title under that power being acquiesced in by the plaintiffs, one of whom actually penned the instrument of appointment. What resemblance has such a case to a renewal by a party having only a life interest? In Lee v. Lord Vernon,(a) a similar attempt was made to carry the general principle of equity in these cases to an inordinate length. There, the respondent having obtained a renewal independently of the other party, an attempt was made to fasten a trust upon him; but it failed for want of privity between the parties. Lord Thurlow, who argued that case, said "Courts of equity (a) 5 Bro. P. C. 10, ed. Toml. 27

VOL. II.

1843.-Waters v. Bailey.

I will not declare a trust where from the nature of the transaction there does not exist any. But the claim of the respondent to the lease of 1775, was from the beginning directly adverse to and inconsistent with the right of renewal claimed by the appellant. The respondent never acted or pretended to act in any degree of trust for the appellant, but obtained the lease in question professedly as a stranger to the applicant, and for his own benefit." It is said in the present case that the second settlement was voluntary. It does not however appear that the testator may not have died seised of lands of which the wife was dowable. Besides, neither of the settlements passed the freehold lease to the wife. [The Vice-Chancellor.-Might not the deed of 1791 operate as

a covenant to stand seised?]—The defendants' counsel [*224] also referred to Bacon's *Abridgement, Leases,(U) Nesbitt v. Tredennick,(a) Owen v. Williams.(b)

The defendants' counsel declined, in answer to a suggestion of the Court, to take an inquiry as to the circumstances under which the deed of 1791, was executed.

THE VICE-CHANCELLOR.-The defendants having declined to take an inquiry as to the deed of 1791, there is nothing substantial in their case. I must assume that that deed was fairly and regularly executed; it is a deed which, though voluntarily, settled the property effectually at law, and therefore in equity, either upon Thomas Waters and his wife for their lives and the life of the survivor of them, or upon Thomas Waters for the lives of himself and his wife and the survivor of them, and, so subject, upon the sons. By this deed an interest having passed at law, and no power of revocation having been reserved, it could not be defeated by a subsequent voluntary instrument.

The father afterwards executed another apparently voluntary deed, not contended to be otherwise than it appears to be, by which he settled the property upon himself and his wife for their joint lives and the life of the survivor (which if not done by the original deed he had a right to do,) declaring the settlement on

(a) 1 Ball & B. 29.

(b) Ambl. 734.

1843.-Waters v. Bailey.

the wife to be in bar of her dower, and going on to create other interests, and giving a power to the wife of appointment by will. Now it is contended that, as this deed professed to give her an interest or a power essentially independent of the instrument of 1791, the renewal is to be considered upon principles different from those usually applied in such cases. If I were so to decide, I should be departing from general rules. As far as the interests under the deed of 1791 were concerned, she was tenant for life only, and being so, she used the means given [*225] her by that position and obtained a renewal. It is impossible not to hold that she obtained that renewal in trust for those who were entitled under the deed of 1791.[1] Acquiescence by the plaintiffs in the claim of the defendants there is none, because Mrs. Waters held by a good title, which the plaintiff's could not dispute until her death, and, after that, they enjoyed by their own title.

[1] That equity prohibits a purchase by parties placed in a situation of trust and confidence, with respect to the subject of the purchase, see Holt v. Holt, 1 Chy. Cas. 190; Greenlaw v. King, 5 Lon. Jurist, 18; Van Epps v. Van Epps, 9 Paige, 237; Torrey v. The Bank of Orleans, 9 Paige, 649; Tanner v. Elworthy, 4 Beavan, 487; Giddings v. Giddings, 3 Russell, 24; Dickenson and Wife v. Codwise, 1 Sand. Ch. R. 226; Richardson v. Jones, 3 Gill & J. 163; Haddix v. Haddix, 5 Litt. 202; Davis v. Simpson, 1 Har. & John. 147; The State v. Reed, 4 Har. & M'Hen. 6; Dorsey v. Dorsey, 3 Har. & John. 410; Brackenbridge v. Holland, 2 Blackf 377; Case v. Abeel, Paige, 399; Decator v. Le Ray de Chamont, 3 Paige, 178; Devoe v. Fanning, 2 John. Ch. 256; McClenahan v. Chambers, 1 Mon. 44; Ringgold v. Ringgold, 1 Har. & Gill, 11; Van Horn v. Fonda, 5 John. Ch. 409; Evertson v. Tappan, 5 John. Ch. 514; Hawley v. Cramer, 4 Cowen R. 718; Howell v. Parker, 4 John. Ch. 118; Ex parte Hughes, 6 Vesey, 617; Ex parte James, 6 Vesey, 337; Hall v Hallett, 1 Cox. 134; Howell v. Ransom, 11 Paige, 538; Slade v. Van Vechten, 11 Paige, 21; Floyde v. Massie, 4 Bibb, 430; Gillett v. Peppercorne, 3 Beavan, 78.

That this rule of equity is not limited in its application to a particular class of persons, such as trustees, guardians, or solicitors, but that it is one of universal application, affecting all persons who come within its principle, which is, that no party can be permitted to purchase an interest, where he had a duty to perform, which is inconsistent with his character as purchaser. See Greenlaw v. King, 5 Lon. Jurist, 18; Van Epps v. Van Epps, 2 Paige R. 237; Torrey v. Bank of Orleans, 9 Paige, 649; Tanner v. Elworthy, 4 Beavan, 489; Giddings v. Giddings, 3 Russell, 241; Dickinson and Wife v. Codwise, 1 Sand. Ch. R. 226; Gillett v. Peppercorne, 3 Beavan, 78.

1843.-Tanner v. Tebbutt.

It is said that one of the present plaintiffs wrote her will. That fact, if coupled with other circumstances, might be material; but standing alone, as it does, it amounts to nothing.

THE defendants, not asking any inquiry as to the deed of 1791, declare that the renewed lease was held upon the trusts of the deed of 1791. Order an injunction to restrain proceedings at law. Let the plaintiffs pay to the defendants the amount of the fine of 1811, with interest at £4 per centum to be verified by affidavit. Thereupon decree an assignment of the renewed lease to the plaintiffs, the deed of assignment to be settled by the Master if the parties differ.

1843: March 7th.

TANNER V. TEBBUTT.

Testatrix devised an estate to the three daughters of L., or such of them as should be living at her decease, and the issue of such as should be dead leaving issue, and their respective heirs, as tenants in common; but upon the express condition that the said daughters, or such of them as should be living at the decease of the testatrix, or their issue, should, within seven years after her decease, personally appear before her executors, and deliver to them a testimonial of their or his identity; and in default thereof the estate was devised over. Upon the death of the testatrix, E. was the party entitled under the devise to the daughters of L., and their issue. E., however, being too aged and infirm to appear before the executors, one of them and the agent of the other attended her at her house, and received from her satisfactory proofs of her identity :-Held, that the condition annexed to the devise to the daughters of L. and their issue, was performed. Quære, whether it was or was not a condition subsequent?

A TESTATRIX of the name of Linney, by her will dated 3rd March, 1840, gave and devised all those her messuages or dwelling-houses, lands and hereditaments, situate in a certain place called Whittle Field in Manchester, unto the three daughters of

her late uncle James Linney, deceased, or such of them [*226] as should be living at her decease, and to *the issue of

such of them as should be then dead leaving issue, equally, share and share alike, as tenants in common, and to their several and respective heirs, executors, administrators and assigns, such issue nevertheless to take the part and share only which his, her, or their parent or parents would, if living, have

1843. Tanner v. Tebbutt.

been entitled to; yet nevertheless upon the express condition that the said daughters of her said late uncle James Linney, or such of them as should be living at her decease, or their issue, should, within seven years next after her decease, personally appear before her executors, or the survivor of them, his executors or administrators, and deliver to them or him a testimonial of their or his identity; and in default thereof, or in case the daughters of her said late uncle James Linney should be all dead at the time of her decease, without leaving lawful issue, the testatrix gave the said hereditaments and premises unto her trustees, upon trust to make an absolute sale thereof, and to pay the money arising by such sale to the persons therein named. And the testatrix appointed Robert Tebbutt and William Pass executors and trustees of her will.

The testatrix died soon after the date of the will, which was duly proved by the executors.

It appeared that James Linney, the uncle of the testatrix, had three daughters, two of whom died without issue in the lifetime of the testatrix. The remaining daughter Elizabeth was living at the death of the testatrix in obscure lodgings in Speldhurststreet, London. She was very aged and infirm, and from the time of the death of the testatrix until her own death, was for the most part confined to her bed from illness, and quite unable to undertake a journey.

One of the executors, Tebbutt, lived in Manchester; the other at Altringham in Cheshire. In July, 1840, the solicitor of Elizabeth Linney, having collected the proper proofs of her identity, requested the executors to go to *London at her [*227] expense, for the purpose of seeing her. Pass being then unwell, an arrangement was made by the executors that Tebbutt and Shelmerdine, a partner in business with Pass should undertake the business. Tebbutt and Shelmerdine accordingly went to London in August, saw and conversed with Elizabeth Linney, received from her various proofs of her being one of the persons mentioned in the will, and made inquiries of various persons in her presence on the same point, and received satisfactory an

swers.