500 years, remainder to the heirs male of the body of Thomas by his intended wife, "and if he died without issue male by his intended wife, and there should be one or more daughters which should be unmarried or unprovided for at the time of his death," then to raise portions for the daughter or daughters payable at eighteen or marriage with maintenance in the meantime. The wife died without issue male, but leaving a daughter who married, and she and her husband filed their bill to have the portions raised during the father's life. The Court refused the relief asked, on the ground that the portion was contingent on the daughter being unmarried and unprovided for at the father's death, a contingency which had not yet happened.

In Butler v. Duncomb (e), the marriage settlement limited the estate to George for life, remainder to Mary for life, remainder to the first and other sons in tail [*416] male, remainder to trustees for 500 years upon trust, that the trustees should "from and after the commencement of the term" raise portions for the younger children payable at twenty-one or marriage; remainder to George in fee. George died, leaving a daughter the only issue, who married, and then she and her husband filed their bill to have the portion raised in the lifetime of the mother. But the Court declined to make any such order, as the trust was to raise the portion from and after the commencement of the term, which meant the commencement in possession, and that this implied a negative, viz. that it was not to be raised before.

In Brome v. Berkley (a) the marriage settlement was to George for life, remainder to the wife for life for her jointure, remainder to the first and other sons in tail, remainder to trustees and their heirs to raise portions for daughters, payable at twenty-one or marriage with maintenance in the meantime, "the first payment of the maintenance money to be made at such half-yearly feast as should next happen after the estate limited to the trustees should take effect in possession." The husband died leaving no issue but a daughter who attained twenty-one, and filed her bill in the mother's life

(c) 1 P. W. 448; and see Churchman v. Harvey, Amb. 335.

(a) 2 P. W. 484. But see Cotton v. Cotton, 3 Y. & C. 149,note.

time, to have the portion raised. Lord King dismissed the bill, on the ground that the maintenance was not to be raised until the estate of the trustees came into possession, and "it was absurd to say that the portion should be raised first, and the maintenance money paid afterwards."

In Stevens v. Dethick (b) the estate was limited to Dethick for life, remainder to his wife for life, remainder to his first and other sons in tail, remainder to trustees for 500 years, to raise portions for daughters payable at twenty-one or marriage, with a direction that the daughters should have maintenance out of the premises comprised in the term "and that the residue of the rents, issues, and profits above such yearly maintenance should in the meantime, till the portions became payable, be received by such persons as should be entitled to the reversion expectant upon the determination of the said term." Lord Hardwicke considered the latter clause to show an intention, that the maintenance money and therefore also the portion itself was not to be raised until the term fell into possession. He therefore dismissed the bill filed by the only daughter after the death of her mother, but in the lifetime of her father.

[*417]

*In Massy v. Lloyd (a) the estate was limited to trustees for 999 years upon trust for the wife for her life, and after her decease upon trust to pay an annuity to the husband, and to apply the residue of the rents during the husband's life, as the wife should appoint (a power which was executed), and on the death of the survivor of the husband and wife to raise 15,000l. for younger children's portions, and subject as above the estate was settled on the first and other sons in tail. The wife died, and it was held that the portions were not raisable during the life of the husband. The case was a very special one, but the argument that chiefly prevailed was based upon the fact that all the rents, issues, and profits during the lifetime of the husband had been expressly disposed of otherwise.

5. Hitherto we have averted only to the question whether

portions shall be raised, while the term charged with them is still reversionary. But there are also other circumstances affecting the portionists personally, which have a material bearing upon the inquiry, at what time the portions are to be raised.

6. Time of raising portions in special cases. If a specific sum be given to A., payable at her age of twenty-one, or day of marriage, the money cannot be raised until the interest has become vested; for should the fund on which the money ⚫ raised is invested prove deficient, the portionist might still have recourse to the estate (b). And so where the trust of a term was to raise 3,000l. for younger children, payable at their respective ages of twenty-one years, or days of marriage, it was held that the trustees were not authorised, when one child had attained his age of twenty-one years, to raise the entire sum, for the infant children could not be deprived of the real security for their shares (c). But from the manifest convenience of raising the portions at once, it seems the Court will lean to that construction where anything appears upon the instrument to warrant such a course. Thus the trustees of a marriage settlement were directed, after the death of the husband, to levy and raise by mortgage, sale, or other disposition of the estate, if there should be more than three children, the sum of 10,000l. for their portions, the shares of the sons to be vested in, and payable to them at the age of twenty-one, and the shares of the daughters at twenty-one or marriage; and it was provided that no mortgage should be made until some one of the portions should become payable. Four of the children had attained

* twenty-one and three were under age; and the [*418] Vice-Chancellor said, "In this settlement there is a clause that no mortgage is to be made until some one of the portions shall become payable. The whole 10,0007. must therefore be raised at once. It is objected that some of the shares may become diminished in amount: the answer to that is, that the Court considers the investment in the 3 per cent. Consols as equivalent to payment. If there is any rise

(b) Dickinson v. Dickinson, 3 B. C. C. 19.

507.

(c) Wynter v. Bold, 1 S. & S.

in the funds the children under age will have the benefit of

it" (a).

SECTION IV.

IN WHAT MODE THE PORTIONS ARE TO BE RAISED.

Where an estate is settled subject to portions, the presumed intention is that the portions should impede as little as possible the devolution of the property in the main channel of the limitations. Moral duty requires that some support should be secured for the younger children, but this should be done at as little sacrifice as circumstances will allow to the family consequence as represented by the eldest

son.

1. Modes of raising portions. In raising portions, therefore, it is prima facie undesirable to sell any part of the estate. So recourse should rather be had to levying the required amount by a side wind, as by the produce of mines or a fall of timber; or, if this cannot be done, then by a mortgage rather than by an absolute disposition, for though a mortgage is usually accompanied with a power of sale, so that eventually the property may pass into the hands of a stranger, yet until actual sale the owner under the settlement has the opportunity of paying off the charge from his private means. In every case, however, the language of the instrument must govern. If portions be simply charged on an estate, either expressly or by implication, (as where a charge is implied from a power limited to the portionist of distraining for non-payment (b),) the money may be raised by mortgage or sale as in the case of any other charge.

2. Where a sale is excluded.

- A trust to raise the portions by mortgage will not authorise a sale, but if the trust be to levy the amount by mortgage or otherwise a power of sale is implied (c). If the trust be to raise the charge by and out of the rents or by such other ways and means except [*419] * a sale as the trustees may think proper, not only a sale is prohibited but a mortgage also which may lead (c) Tasker v. Small, 6 Sim. 625.

(a) Gillibrand v. Goold, 5 Sim. 149. (b) Meynell v. Massey, 2 Vern. 1.

to an absolute disposition, as it enables the mortgagee by foreclosure to get possession of the estate (a).

3. Out of income or corpus. If the portions be raisable by and out of the rents and profits or by mortgage, here the words are ambiguous, and are capable of the construction that the trustees have an option of levying the portions either out of the income or out of the corpus, and so of throwing the onus at their discretion either upon the tenant for life or upon the remainderman (b). But the Court will lean strongly against such a construction (e). In some cases the meaning is that the annual rents should be primarily charged, and that the deficit only should be raised out of the corpus. Thus where the trustees were to hold an estate during the minority of the devisee, and to raise portions by and out of the rents and profits or by sale or mortgage, and on the devisee attaining the age of twenty-one to pay the rents to him after payment of the portions, the Court said that as the devisee on attaining twenty-one was to take such accumulated rents and profits only, as should remain after satisfying the portions, the testator intended that the rents and profits should be first applied, and that the balance only could be raised by sale or mortgage (d).

[Where the portions were raisable "by mortgaging or otherwise disposing of the lands, or out of the rents and profits, or by any other ways or means," and unsuccessful efforts had been made to raise the portions by mortgage of the property, it was held that the trustees were at liberty to apply the rents and profits first in payment of the interest, and secondly in reduction of the capital of the portions (e).]

4. Out of rents. A more common case is where the portions are directed to be raised out of the rents and profits simply, and nothing more is said. Here if a definite time be fixed for payment of the portions, the ordinary and primâ facie meaning of rents and profits is taken to be inconsistent with the direction for payment at a time certain, and

(a) Bennett v. Wyndham, 23 Beav. 521.

(b) See Hall v. Carter, 2 Atk. 354. (c) See the cases referred to, ante, p. 367.

(d) Warter v. Hutchinson, 1 S. & S. 276; and see Okeden v. Okeden, 1 Atk. 550.

[(e) Balfour v. Cooper, 23 Ch. D. 472.]