Burrel's case was one of fraud; and the Judges, by deciding otherwise than they did, would have given effect to a fraudulent combination between the ancestor and heir to defeat the purchaser.

As to the Statute of Limitations, it is clear that the statute would not bar until twenty years from the death of Thomas Lewis. For, here, independently of the consideration that Thomas Lewis, being tenant for life under both instruments-the settlement of 1778 and that of 1793-his possession would be referred to the former, even if he had done no act in recognition of that instrument, I have the additional circumstance that the settlement of 1778 has been expressly recognised by Thomas Lewis. In 1828 Thomas Lewis actually dealt with this property as tenant for life under the settlement of 1778, executing a mortgage in that year with the concurrence of the son, through whom the Plaintiff claims, and covenanting to suffer a recovery to bar this very entail.

It appears to me, therefore, that all the points raised for the defence have failed, and there must be a decree according to the prayer of the bill, with this addition only, that the Plaintiff is entitled "for an equitable estate." And, as to costs, the title which the Defendant has attempted to set up was one acquired by tort, and it has failed under these circumstances the Defendant must pay the costs of the suit. Decree accordingly.

:

[152] In re SAUNDERS' TRUST. Jan. 17, 1857.

Settlement. Construction.

"Unmarried." Husband and Wife. Personalty.
Statutes of Distribution.

In a settlement the expression "in case she (the wife) had died intestate and unmarried: " Held equivalent to "in case she had died intestate and a widow." Accordingly, under a limitation, at the wife's death, to the persons who, in the event above mentioned, would have been entitled to her personal estate: Held, her first husband having died without issue, that her children by a second husband, who survived her, were the persons designated.

Dictum on this subject in Smith v. Smith (12 Sim. 326, 327) disapproved.

By an indenture of settlement, made shortly after the marriage of Richard Saunders and Charlotte, his wife, £2400 consols then belonging to Saunders, and £500 then about to be received by Charlotte or by Saunders in her right from the executors of the will of her late father, and all future moneys to be received by her or by Saunders in her right under the same will, were settled, as to the £2400, upon trust to pay the dividends to Saunders for life, and after his death to Charlotte for life, and after her death upon trust for the children of the said marriage; and, in default of any such child, upon trust for the next of kin of Saunders, according to the Statute of Distributions; and as to the £500, and all other the moneys aforesaid, upon trust to invest as therein mentioned, and to stand possessed thereof, and of the stocks, &c., upon which the same should be invested, upon trust to pay the dividends to Charlotte for life, free from any control of her husband, and after her decease to Saunders for life; and, after the decease of the survivor, upon trusts for the children of the marriage. And it was thereby declared that in case there should be no child of the said marriage who, by virtue of the trusts therein before declared, should become entitled to a vested interest in the last-mentioned sums, the same, or such part thereof as should not have been applied for the maintenance and advancement of any child of the said marriage by virtue of the trusts therein contained should be "in trust for the person or persons who, at the time of the decease of the survivor of them the said Saunders and Charlotte his wife, would have been entitled to the personal estate and effects of the said Charlotte, in case she had died intestate, and unmarried.”

[153] The trustees received the £500, together with an additional £100, under the will, and invested both sums in the purchase of £649, 10s. 6d. consols.

Saunders died and there was no issue of his marriage. Charlotte afterwards married George May, and died, leaving two children by him, both infants.

The trustees having paid the fund into Court under the Act 10 & 11 Vict. c. 96, the infant children, by May, their father and next friend, now presented a petition, praying that a moiety of the residue of the £549, 10s. 6d., after payment of costs, might be carried over to the separate account of each infant, and to have the dividends accumulated.

Mr. Sandys, for the Petitioners, contended that the word "unmarried" was to be construed as referring to the first marriage, and to that only, and as equivalent to "not being at the time of her death the wife of Saunders," "not leaving Saunders, her husband, her surviving;" so that Saunders, but no after-taken husband, was excluded. If so, May, as the second husband, was entitled, and he waived his right in favour of his children.

But if both husbands were alike excluded, the word "unmarried," being capable of two other interpretations, "a spinster," or "a widow," the Court would adopt the latter, and not deprive of their right to representation children whom it could never have been the intention of the parties to the settlement to exclude.

He cited In re Norman's Trust (3 De G. Mac. & G. 965) and Pratt v. Mathew (2 Jur. (N. S.) 1055).

[154] Mr. W. A. Collins, for brothers and sisters of Charlotte, contended that the word "unmarried" must be construed strictly, as equivalent to "without ever having been married," i.e., "a spinster." The limitation in question was precisely in the words recognised by Lord Commissioner Shadwell as proper to designate the persons entitled under the Statutes of Distribution other than children: Elmsley v. Young (2 My. & K. 787) and Smith v. Smith (12 Sim. 326, 327). In the latter the clause was "in trust for his next of kin according to the Statutes of Distribution, and as if he had died intestate;" and the Vice-Chancellor observes, "It is impossible to read the clause in which the ultimate trust is expressed without seeing that the person who framed it has omitted one or two words, which are generally inserted in clauses of the like nature, and which have been at last adopted for the purpose of excluding any question. If the draftsman had only gone on to say, 'as if the said Alexander Falconer had departed this life intestate and unmarried,' then it would have been quite clear what was meant: the children would have been excluded. But there is an omission of those two words, which have been introduced for the purpose of determining what next of kin are to take. . . . The language which has been adopted by conveyancers has been adopted for the purpose of excluding the question." In Maberly v. Strode (3 Ves. 450, 452, 454) the Master of the Rolls says, "I do not know that the word 'unmarried' was ever used in that sense (meaning in the sense of 'not married at the time,' 'a widow' or 'widower'), "except in the single instance of the Statute upon Settlements, 3 Will. & M. c. 11,(1) where the Legislature certainly thought fit to use it in that sense; but there they used it with such additions as put the meaning out of all doubt; [155] for, if it was not used in that sense, the man could have had no child or children. But, notwithstanding it is so used there by the Legislature, the question here is, what is the common and usual meaning of it in a will, or the common acceptation of it in language? If legacies or annuities are given to unmarried daughters, which is a very common way, could they go to widowed daughters? Certainly it never has been so considered, and I believe is not the usual sense in which testators or persons in common language use it. It must mean such as have never had a husband at all. If that is the common acceptation there is nothing in this will to induce the Court to put an unusual construction upon it." Accordingly, in a very recent case, In re Thistlethwayte's Trust (1 Jur. (N. S.) 881), where there was a bequest of £1000 to the testator's daughter at her mother's decease "if she should be then unmarried," the Lords Justices held that the word "unmarried" must be construed as "never having been married;" and, the daughter having married in the lifetime of her mother, it was held that the legacy never became due.

In Re Norman, and in the other case cited contrà, the construction was necessarily different; for, in the former, the settlement made no provision for children, and in both the strict construction would have excluded the very issue for whom the settle

(1) The words of the statute are, "If any unmarried person, not having child or children, shall be lawfully hired," &c.

ment was intended to provide. Here, there is an express provision for the children of the first marriage, and no second marriage was then in contemplation.

Mr. W. H. Melvill, for the trustees.

A reply was not heard.

[156] VICE-CHANCELLOR Sir W. PAGE WOOD. I am satisfied that, in this case, I am clearly bound by the decisions; and that those decisions, if I may be allowed to say so, are founded upon sound reasoning.

In the case of a will, where a legacy is given by will to a daughter who, at the date of the will, has never been married, and the gift is made to be conditional upon the legatee being "unmarried" at a given time, there it may well be that the testator is looking to the then condition and status of the legatee as a person who has never been married, and foreseeing the circumstances in which she will stand if that status and condition continue, and intends the bequest to be conditional upon her continuing in that status or condition. In such a case the word "unmarried" would rightly be construed to mean "a spinster," and not "a widow." (1)

On the other hand, in a settlement, where property has been settled, in the event of the wife dying in the lifetime of her husband, upon trust for the persons who at her death would have been entitled to her personal estate in case she had died intestate and "unmarried," or "without being married," there being no provision for the children who eventually survive her, it is clear that the motive is not to prevent her marrying again in the event of her surviving her husband, but simply to exclude her husband, in the event of his proving the survivor, from claiming any part of her personal estate. In such a case the expressions "unmarried," or "without being married," would be held to mean "without having a husband at the time of her death,” not "without ever having had a husband;" "a [157] widow," and not "a spinster;" and children surviving their mother would be entitled.

In the case of Norman's Trust any other interpretation would have excluded the children of the marriage on which the settlement was made: a result manifestly contrary to the very object of the settlement.

It seems to me that the passage cited from the judgment of Lord Commissioner Shadwell in Elmsley v. Young (2 My. & K. 787) has no bearing on the question. The dictum of the same Judge in Smith v. Smith (12 Sim. 326, 327) was more in point; but it appears to have been a dictum of the moment, not material to the question under consideration; and I cannot but think that, had the case been argued so as to raise the question, the judgment of the Vice-Chancellor would have been in accordance with the view taken by the Lords Justices in Re Norman's Trust.

The singularity of the present case consists in this, that here the lady has been twice married, and the words in question occur in the settlement on her first marriage. The event for which it was obviously the intention of the parties to provide was that of her first husband, Richard Saunders, surviving her; and the intention was, in the event of his so surviving, to exclude him from all claims upon her personal estate. There, no doubt, the intention stopped; and accordingly it was argued that, in the absence of any intention to exclude a second husband, the second husband of this lady is entitled. But it seems to me that the words of the limitation, "in case she had died intestate and unmarried," are too strong to admit of that interpretation. It seems to me that however they may have [158] been intended to exclude only a first husband, the effect of those words must be (as Lord Cottenham decided in reference to the somewhat similar limitation to the separate use of a woman), (2) to revive as often as the lady may marry again, and to come into operation against all after-taken husbands.

I must, therefore, hold that the lady's second husband is excluded from claiming the fund in question; and that the persons designated are those who, at her death, would have been entitled to her personal estate in case she had died intestate and a widow-in other words, that her children, not her collateral relations, are the parties entitled to the fund.

The order will be for a transfer of one moiety to the separate account of each of

(1) See In re Thistlethwayte's Trust, 1 Jur. (N. S.) 881.

(2) Tullett v. Armstrong, 4 My. & Cr. 377, 405.

the infant Petitioners, and for investment of the dividends from time to time, with liberty to apply.

Ordered accordingly.

[159] NICHOLSON v. TUTIN (No. 2). Jan. 26, 1857.

Trustee. Commission. Collecting Rents.

Certain real estates, subject to incumbrances, the interest of which more than exhausted the rents, were conveyed by the mortgagor to trustees, upon trust for his creditors. After the execution of this creditors' deed one of the trustees thereof was employed by the mortgagees as their agent to collect the rents. Held, that he could not be allowed any commission out of the rents.

This case is reported on the hearing, ante, vol. 2, p. 18. It now came on for argument upon a point adjourned from Chambers.

The suit was to carry into execution the trusts of a creditors' deed. The decree directed an account to be taken of the rents of the real estate, and of the proceeds of the sale of any part of the real or personal estate comprised in the deed, received by the Defendants, Tutin and Watson, the surviving trustees, or either of them, or by any other person or persons, by the order or for the use of the said Defendants, or either of them; "and, in taking the said account, all just allowances are to be made."

The answer of the trustees to the bill denied that they had ever taken possession of the land; but stated that one of them, Watson, immediately after the date and execution of the trust deed, as the agent of the mortgagees of the land therein comprised, received the rents thereof, and paid such rents in discharge, in the first place, of the sums due for interest on the first of the mortgages affecting the said premises, and then in payment, so far as the same would extend, of the interest of the subsequent incumbrances affecting the said hereditaments and premises; but that such rents were not sufficient for the payment of the interest on the several incumbrances thereon, and that for purposes of security and convenience, when such rents were received by Watson, and were not immediately applicable in payment of interest on the said mortgages, such rents were paid to the account of the trustees at a bank, with the monies arising from the sale of the personal property, and sometimes, when the interest became due before the rents [160] were actually received, it was paid out of these moneys by the trustees.

The account carried into Chambers by the trustees comprised these receipts and payments in respect of the real estate, and it included a charge of £450 by Watson, as commission for collecting the rents.

The question was whether, under these circumstances, Watson could be allowed this commission.

Mr. W. R. Ellis, for the Defendant, Watson.

Mr. Southgate, for the Plaintiffs, was not heard.

VICE-CHANCELLOR Sir W. PAGE WOOD. It would be difficult to maintain this claim upon the evidence; but, independently of that, I think that upon principle the Defendant's claim must be disallowed. The answer states that the three trustees did not receive the rents, but that Watson, as the agent of the mortgagees, received them, and therewith paid the interest of the first mortgage, and then of subsequent incumbrances so far as the rents would go, but that the rents were not sufficient to pay all such interest; and when the rents were received, and were not immediately applicable, they were paid to the account of the trustees at their bankers. On the other hand, there is a circumstance which bears strongly against this view of the transaction; the bankers' book is produced, and these payments are entered in it as moneys received by the trustees: and, in this state of things, I think it would be very unsatisfactory to make these allowances. To maintain a claim to commission Watson must either [161] shew that he was appointed agent of the mortgagees prior to the creditors' deed, or that there was a special agreement at the time of his accepting the trust that he should receive a commission.

In one case before Sir John Leach he held that, where the mortgaged property consisted of a number of small houses, a commission might be allowed to a mortgagee in possession, for the trouble of collecting the rents, without any special contract.(1) Watson, however, in this case, not only does not say that he was appointed agent before the deed, but it is proved that he was appointed subsequently to the trust deed. I do not think that it is competent for a trustee to accept such a position, and to raise a claim of such an indefinite nature, unless there had been previously a special contract that he should have compensation, or such a case of necessity as would justify such a claim, if made by a mortgagee in possession. But the persons to determine whether or not there was such a necessity, or to make such a contract in this case, would be the trustees themselves, of whom Watson was one. He would have to decide concerning the commission to be allowed to himself. The case, therefore, falls within the principle laid down by this Court, namely, that it will not allow a person to put himself in a position where his interest will be inconsistent with his duty. Therefore, on principle, independently of the question upon the evidence, the claim for commission must be disallowed.

[162] THE MARCHIONESS OF LONDONDERRY v. BRAMWELL. Jan. 26, 1857. [S. C. 5 W. R. 247.]

Practice. Motion for Decree. Enlarging Time. Cross-Examination.

The 15 & 16 Vict. c. 86, and the orders made in pursuance thereof, do not so far change the practice of taking evidence in equity as to make it essential that a Defendant should know all the Plaintiff's evidence before he adduces his own. Therefore the Court will not, on a motion for decree, enlarge the time for the Defendant to file his affidavits, simply to enable him to cross-examine the Plaintiff's witnesses before doing so.

But it would probably grant this indulgence if the Defendant could not afford the expense of a special Examiner, and if his application for an enlargement of time were made without delay.

This was a summons adjourned into Court from Chambers. The application was by the Defendant for an enlargement of his time for filing affidavits in opposition to the Plaintiff's motion for a decree in this suit. The notice of motion for a decree was given on the 18th of December 1856; and by an order, dated the 2d of January 1857, the Defendant's time for filing affidavits was enlarged until the 23d of the same month, and seven days after that date were given to the Plaintiff to file affidavits in reply. Subsequently, the Defendant's counsel advised that the Plaintiff's witnesses should be cross-examined upon their affidavits. The earliest appointment for this purpose that could be obtained at the Examiner's office was for the 3d of February 1857.

The managing clerk of the Defendant's solicitor made an affidavit stating these facts, and also that it was material for the case of the Defendant that the crossexamination should take place before the affidavits on behalf of the Defendant were filed.

Mr. Rolt, Q.C., and Mr. Elderton, for the Defendant. The 15 & 16 Vict. c. 86, ss. 38 and 40, and the 22d and the following Orders of the 7th of August 1852, give the Defendant a right to cross-examine the Plaintiff's witnesses at any time within the fourteen days which are allowed to the [163] Defendant for filing his own affidavits Clarke v. Law (2 K. & J. 28), Williams v. Williams (17 Beav. 156). [Mr. Cairns, Q.C., for the Plaintiff. I do not deny that.] Then, if the Defendant has this right by the course of the Court, he ought not to be deprived of it by the accident that the Examiner cannot take the evidence within that time, on account of the press of business before him. The theory of the statute and orders must be that the

(1) Davis v. Dendy, 3 Mad. 170.