1851.-Ross' Trust.

The testator died in 1831. After his death, his widow married Thomas Weatherell. In February, 1849, she and her hus band (who afterwards died) sold and appointed and assigned her life-interest in the consols to the petitioner: after which the trustees transferred the capital into court, under the Trustees Relief Act.

The petition prayed that the Accountant-General might be di rected to pay, to the petitioner, the dividends to accrue due on the consols, during the remainder of Mrs. Weatherell's life.

On the hearing of the petition, the question was, whether the trust created by the will in favor of Mrs. Weatherell, was, simply, a trust for her separate use, or a trust for her separate use with a restraint on alienation.

Mr. Southgate, for the petitioner, contended that the trust was, simply, a trust for the separate use of Mrs. Weatherell. [*198] He cited Pybus v. Smith,(a) Parkes v. * White,(b) Acton v. White, (c) Scott v. Davis,(d) and 2d Roper on Husb. and Wife, 231.

Mr. Bethell and Mr. T. S. Clarke, for Mrs. Weatherell, contended that the trust was a trust for her separate use with a restraint on alienation. They said that no particular form of words was necessary to prevent a woman from alienating property settled to her separate use; but the intention of the author of the instru ment to impose the restraint, might be collected from the whole of the instrument: that the testator in this case had, first, created a trust for the separate use of his wife, and then added a direction that the subject of that trust should remain, during her lifetime, and be, under the order of the trustees, a duly-administered provision for her, and the interest of it given to her, on her personal appearance and receipt; which was inconsistent with a pow

(a) 3 Bro. C. C. 340.

(b) 11 Ves. 209.

(c) 1 Sim. & Stu. 429; and 1 Eng. Ch. R. part 1, 431, am. Ed.

(d) 4 Myl. & Cr. 87; see 89; and 18 Eng. Ch. R. part 1, 86, Am. Ed.

1851.-Ross' Trust.

er of alienation in the wife; and that, as the testator had completed the trust for her separate use in the preceding part of his will, the direction in the subsequent part could not be satisfied without holding that the provision which the testator had made for his wife, was inalienable: Wagstaff v. Smith, (a) Brown v. Bamford,(b) Moore v. Moore,(c) Field v. Evans, (d) Nedby v. Nedby,(e) Tullett v. Armstrong,(g) In the matter of Gaffee's Trust.(h)

Mr. Rolt appeared for the trustees.

*The VICE-CHANCELLOR said that the words attrib- [*199] uted to Lord Cottenham in the report of Scott v. Davis, (i) namely, that the decisions seemed to require that the intention to restrain a married woman from aliening property settled to her separate use, should be expressed in a particular form of words, and that anticipation should be, in terms, prohibited, could not have fallen from his lordship; for neither the words, "without anticipation," nor any other particular form of words, were necessary for that purpose: that the question in this case, was whether the direction that the capital of the trust-fund should remain, during Mrs. Weatherell's life, and be, under the order of the trustees, made a duly administered provision for her, and the interest of it given to her, on her personal appearance and receipt, was a direction which necessarily implied that she should not alienate the dividends of the fund: that the words, "on her personal appearance and receipt," did, at first sight, appear so to imply; but it had been decided, repeatedly, that a direction for payment to a married woman on her sole receipt, did not restrain her from alienation; and the case referred to by Sir William Grant, M. R., in Wagstaff v. Smith, decided, in effect, that a di

(a) 9 Ves. 520; see 524.

(b) 1 Phill. 620; and 19 Eng. Ch. R. 620, Am. Ed.

(c) 1 Coll. 54; and 28 Eng. Ch. R. 51, Am. Ed.

(d) 15 Sim. 375; and 38 Eng. Ch. R. 375, Am. Ed.

(e) 4 Myl. & Cr. 367; and 18 Eng. Ch. R. part 1, 366, Am. Ed.
(g) Ibid. 390; see 392; and 18 Eng. Ch. R. part 1, 390, Am. Ed.
(h) I Hall & Twells, 635, and 1 Macn. & Gord. 541.

(1) 4 Myl & Cr. 87, see 89; and 18 Eng. Ch. R. part 1, 86, Am. Ed.

1851.-Foster v. Handley.

rection for payment to her on her personal appearance, did not have that effect; for that case decided that a direction to pay into her proper hands did not deprive her of the power of disposition; and no payment could be made into her proper hands, without her personal appearance: and, therefore, the petitioner was entitled to the order which he asked.

27th February.-On this day the petition was placed in the paper, to be spoken to as to costs. The question was wheth[*200] er the *costs were to be paid wholly out of the fund in court, or, in part, out of the residue of the testator's per

sonal estate.

The VICE-CHANCELLOR, after a good deal of discussion, in which Mr. Malins and Mr. Fooks took part, as counsel for the children of the testator's brother, Thomas Ross, refused to give Mrs. Weatherell any costs, but ordered the costs of the petitioner, as between party and party, and the costs of the trustees, as between solicitor and client, to be paid out of the corpus of the fund in

court.

FOSTER v. HANDLEY.

Assets.-Equity of Redemption.-Debtor and Creditor.

1851: 22d January.

The equity of redemption of a mortgage in fee, is made legal assets by 3 & 4 Will IV, c. 104.

THIS was a creditors' suit, for the administration of the estate of the late Henry Handley, Esq., which consisted, in part, of the equity of redemption of a mortgage in fee of freehold property; but which he had not charged with, or devised subject to the payment of his debts. The trustees of his will sold the equity

1851.-Foster v. Handley.

of redemption; and, after paying off the mortgage-debt out of the proceeds, they paid the surplus into court in trust in the

cause.

The question, at the hearing, was whether the surplus was to be dealt with as legal or as equitable assets, under the 3 & 4 Will. IV, c. 104, which enacts: "That when any person shall die seized of or entitled to any estate or interest in lands, tenements, or hereditaments, corporeal or incorporeal, or other real estate, whether freehold, customary-hold, or copyhold, which he shall not, by his last will, have charged with or devised subject to the *payment of his debts, the same shall be as- [*201] wets, to be administered in courts of equity, for the payment of the just debts of such persons, as well debts due on simple contract as on specialty; and that the heir or heirs-at-law, customary heir or heirs, devisee or devisees of such debtor, shall be liable to all the same suits in equity at the suit of any of the creditors of such debtor, whether creditors by simple contract or by specialty, as the heir or heirs-at-law, devisee or devisees of any person or persons who died seized of freehold estates, was or were, before the passing of this act, liable to, in respect of such Freehold estates, at the suit of creditors by specialty in which the heirs were bound: Provided always, that in the administration of assets by courts of equity under and by virtue of this act, all creditors by specialty in which the heirs are bound, shall be paid the full amount of the debts due to them before any of the creditors by simple contract or by specialty in which the heirs are not bound, shall be paid any part of their demands."

The VICE-CHANCELLOR held that the proviso in the act made the equity of redemption legal assets, [1] and, consequently, that the

[1] In a case in the Supreme Court of the State of New York, it appeared, on the trial, that certain parcels of land in the city of New York were conveyed, in fee, to Fulton, in 1913: that in May, 18!4, Fulton and his wife executed a mortgage on these lands: that the money secured by the mortgage, was payable in April, 1815; and that Fulton died in the month of February preceding. On this state of facts, the question arose whether the mortgaged premises were to be deemed equitable or legal assets in the hands of Fulton's heirs. And it was held to depend upon the

1851. In re The Liverpool Dock Acts.

creditors by specialty in which the heirs of the deceased were bound, were entitled to be paid the full amount of their debts, out of the money in court, before any part of it was applied in payment of the debts of the creditors by simple contract.(a)

Mr. Smale and Mr. Waley were the counsel in the cause.

(a) See 2 Coote on Mortgages, page 98.

event, whether the legal estate was vested in the mortgagor. The conclusions arrived at, by the court in this case, were that the nature of the mortgagor's estate fell within the terms of the act, "lands and tenements whereof the debtor was seized," and that as there was no foreclosure or entry, nor could be, since the mortgagor died before the mortgage money become due, the premises were legal assets in the hands of the heirs. Roosevelt v. Heirs of Fulton, 7 Cowen's R. page 70; see Collins v. Torrey, 7 John. 281; Hitchcock v. Harrington, 6 John. 290; 7 John. 380; 11 John. 534; 15 John. 205; see, also, remarks in 4th Kent's Com. 7 ed., p. 159, et seq.

[*202] *IN THE MATTER OF COYTE'S ESTATE, AND IN THE MATTER OF THE LIVERPOOL DOCK ACTS. (a)

Liverpool Dock Acts.-Lands Clauses Consolidation Act.-Re-investment of Compensation Money.

1851 25th January.

Money paid into court by the Liverpool Dock Trustees, in respect of leaseholds for years, taken by them under the powers of their Act of Parliament, ordered to be reinvested in the purchase of copyholds of inheritance.

By the will of William Coyte, dated the 5th of September, 1831, certain houses in Liverpool, being leaseholds for years, were devised to his daughter, Julia, for her separate use for life, and, after her decease, to her issue living at her death as purchasers; but if she left no issue living at her decease, then to the testator's son, William.

(a) Ex relatione Mr.J. Nicholson.