added, there would be an intestacy, though the heir at law is a party to the suit. Then the question is whether the Court can find, on the face of the will, enough to enable it to give a sensible meaning to the words; for, if it can, the Court is not at liberty to avail itself of this hazardous course of supplying words; nor do I see, supposing that I had been put in that difficulty, how I could safely have supplied the words which have been suggested. That some words have been omitted seems to be very probable, from the fact of there being a direction to convey to "such" children, and that the rents and profits in the meantime should be applied for their benefit during their minorities; but I must have a clear conviction, amounting to a necessary implication, that the words which I am called upon to supply are the proper words, otherwise I am not at liberty to supply them. There is a great difficulty in what I am asked to do here, namely, to insert words making the gift to such children "as should attain the age of twenty-one years." The limitation is to the children of a lady, with a gift over on all those children dying under twenty-one, and there is no gift over in the event of any of them attaining twenty-one. There would be a very strong reason for concluding from this that the words suggested are the proper words to be inserted; but the case does not rest there, because there is a previous gift to Charlotte Theakston Driffield for life, and then a gift over if she should die without leaving any child or children, or having such child or children all should die under the age of twenty-one years; and, by the same argument, I ought to insert in the intermediate gift to her children the words "as should survive the mother and attain twenty-one." That would be [211] the exact correlative of the terms of the gift over; but this would be going much too far. Those are the only words which could be introduced into the original gift so as to make it exactly consistent with the gift over; but we constantly see wills in which there is a limitation to persons to vest at twenty-one, and yet a gift over if all die during the lifetime of the tenant for life. So that the somewhat unreasonable result is continually occuaring that there are several children who all attain twenty-one during the lifetime of the tenant for life ; but, if no child survives him, all the shares become defeasible. I cannot form any opinion in this case what words have been omitted. It is probable that it was intended to limit the gift to children who should attain twenty-one; but whether or not that was coupled with the contingency of their surviving their mother I have great doubt; and unless I could come to a clear conclusion-if it remain at all doubtful whether it was intended to be a simple contingency of their attaining twenty-one, or with another contingency superadded-I am not at liberty to supply the words suggested; I have no authority to make a will for the testator by adding words, unless there is a necessary implication that the words to be added have been omitted by mistake. I am therefore of opinion that I cannot supply any words in this case.

Then it remains to be considered whether, as against the heir of the testator, I can give any meaning to the words of this gift. I agree that it is a strained construction to carry back the word "such" to the children mentioned in the earlier part of the will.

In Strutt v. Braithwaite (5 De G. & S. 369) the construction was quite natural. We say, commonly, "if a person has children, I give to such children." In that case the original limitation was to all and every the child or children, and carrying it [212] back to the original words, "such" children must have meant all the children. But here, in the earlier part of the will, there is a gift to C. T. Driffield, with an executory devise if she should die without having left any child or children her surviving, and then the limitation of the residue is to such children of C. T.

Driffield.

As against a construction which would lead to an intestacy I hold that there is sufficient indication in the will to shew that children of this daughter were intended to take. The question is whether it was intended to exclude any from the benefit of the gift. I do not find any words of exclusion; and as I find the children of Charlotte Theakston Driffield mentioned in the former part of the will, I think I am justified in reading the word "such" as equivalent to "the said." The direction to pay the rents and profits "in the meantime" is of doubtful meaning; but upon this construction it is not insensible, because the trustees are to convey and assure the property to the children, and "the meantime" may signify the interval which may

elapse before such conveyance is made, or, at all events, it may mean during the minority of any of the children.

It is impossible to make any construction of a will like this, which will not be somewhat forced; but I am forcing the construction against the heir and not against any other parties.

As to the argument from the absurdity of supposing that these interests are to vest immediately, and, in the event of none of the children attaining twenty-one, are to be again devested; a similar argument applies with equal force to the construction that the shares of any who attained twenty-one would vest, but if the mother afterwards died without leaving any children such shares would thereupon be devested.

In Spalding v. Spalding (Cro. Car. 185) and Abbot v. Middleton (1 Jur. (N. S.) 1126) [213] the Court struggled to prevent an estate previously given from being destroyed by a contingent limitation over.. In this case I am asked to restrict an estate which is limited without restriction, by an inference which it is attempted to raise from the word "such." I am of opinion that I cannot do this; but I must decide that the seven children took vested interests.

[213] In the Matter of THE TRUSTEE RELIEF ACT. In the Matter of THE TRUSTS OF HODGES' SETTLEMENT. In the Matter of THE TRUSTS OF COGGAN'S WILL. In the Matter of M. C. L. HODGES, an Infant. In the Matter of THE 18 & 19 VICT. C. 43, THE INFANTS' SETTLEMENTS ACT. March 14, 16, 17, 18, 1857.

[S. C. 3 Jur. (N. S.) 860. See De Pereda v. De Mancha, 1881, 19 Ch. D. 455; Brown v. Collins, 1883, 25 Ch. D. 61.]

Ward of Court. Trustee Relief Act. Effect of Order on Petition.

Money belonging absolutely to a young lady under age having been paid into Court under the Trustee Relief Act, and an order made upon petition under that Act for payment of part of the dividends to her testamentary guardian for her maintenance, in pursuance of an order for an allowance for her maintenance made upon an application at Chambers: Held, that the infant was thereby made a ward of Court.

This was a petition presented by the guardian of a young lady under age, appointed by her father's will.

It appeared that she was entitled to three funds in Court, under the following circumstances :

The first sum was a legacy by her father's will, vested in her, payable when she should attain twenty-one. The second sum was vested in her under the settlement made on her father's marriage, and was payable to her at twenty-one or marriage, with a power enabling the trustees of the settlement to apply the interest for her maintenance. The [214] third fund was a legacy given to her by her grandfather's will, and was to be paid at twenty-one or marriage, with the consent of her guardian.

On the 5th of June 1854 an order was made, on summons, at Chambers, that the first sum should be paid into Court to an account in the matter of M. C. L. Hodges, an infant, and that the interest should be paid to her guardian, the Petitioner, for her maintenance; and that the trustees of the second sum should be at liberty to pay so much out of the interest of the second sum as would make up the amount of £400 a year.

The first sum was transferred into Court under that order.

The trustees of the second sum then transferred that fund into Court, under the Trustee Relief Act; and, upon petition under that Act, an order was made directing the Accountant-General to pay to her guardian, out of the dividends thereof, such a sum as would make up the yearly amount of the maintenance allowed to the infant. The third fund was also transferred into Court, under the Trustee Relief Act; and no petition having been presented with regard to it, the dividends had been accumulated.

The young lady had attained the age of eighteen, and a marriage had been agreed upon between her and A. B.

This petition was presented by the guardian, stating the above facts, and praying for an inquiry as to the fitness of the marriage; that A. B. might lay proposals for a settlement before the Judge at Chambers; that such settlement might be settled at Chambers; that "the sanction of this honourable Court might, in pursuance of the provisions contained in the Act lastly mentioned in the title hereof, [215] be given to the said infant, M. C. L. Hodges, to enable her to make the settlement proposed to be so settled by the said Judge as aforesaid as valid, binding and effectual, as if the said M. C. L. Hodges was of the full age of twenty-one years," that, on the execution of the settlement, the parties might be at liberty to intermarry; and that, after the marriage, the trust funds might be paid out of Court to the trustees to be appointed by the settlement.

Mr. E. R. Turner, for the Petitioner, said the petition was presented on account of the doubt whether the infant was a ward of Court, and referred to the Trustee Relief Act, sect. 2, and In re M'Cullochs (Dru. 276).

Mr. Howe appeared for the trustees and for the executor of the will of the grandfather of the infant.

VICE-CHANCELLOR Sir W. PAGE WOOD said he would consult the other Judges, and mention it again on Tuesday morning.

March 16. VICE-CHANCELLOR Sir W. PAGE WOOD. This seems to me to be a case upon which the opinion of the Lord Chancellor should be sought, as to the jurisdiction over wards of this Court. The old authorities appear to throw some light upon the question. In Ex parte Birchall (3 Atk. 813) there were two infants, one nineteen years of age and the other twelve, and an application was made by petition not in a suit for the appointment of a guardian, and for leave that the elder of the two might marry; and Lord Hardwicke said that there was no occasion for the latter part of the application, which proceeded upon a misapprehension of the [216] Marriage Act; that, by the Rubrick and the Act of Uniformity, which adopted its very terms, the infant might be married by banns; and that, when a guardian was appointed, this would have no effect: and he made no order on that part of the petition. I always understood that this was the rule. The guardian may give or withhold his consent to the marriage as he chooses. This Court has no jurisdiction in the matter, unless a bill is filed and the infant is by this means made a ward of Court.

In the case In re M'Cullochs (Dru. 276) it is assumed by the Judge that an infant becomes a ward of Court upon the filing of a bill. The marginal note in that case is not very correct. It states that an infant may be made a ward of Court on petition; what was asked was that an infant should be made a ward of Court, and the order upon the petition seems to have been that she should be made a ward of Court, and proper steps taken to secure her property. That seems to mean that a bill should be filed for these purposes.

If that was the old law, I have no doubt that the Act for the Relief of Trustees cannot affect the rule in any way. This statute does not purport to confer upon the Court any jurisdiction of the kind. Trustees pay a particular fund into Court under its provisions, and the statute enacts that such orders as shall seem fit shall be made by this Court in respect of the fund so paid in upon petition without bill, and that such orders "shall have the same authority and effect, and shall be enforced, and subject to rehearing and appeal, in the same manner as if the same had been made in a suit regularly instituted in the Court."

There is nothing in that provision to make any infant, [217] who may happen to have an interest in that fund, a ward of Court. The effect of filing a bill is to give the Court jurisdiction over all the property of the infant. It would be a very different question whether the lady's equity to a settlement would not arise when she is married.

On the same day Mr. E. R. Turner applied to the Lords Justices, mentioning the case referred to before the Vice-Chancellor, and the case of Ex parte Birchall, and further referring their Lordships to In re Bloye's Trust (1 Mac. & G. 488). The Lords

Justices said they would consider the Trustee Relief Act, and mention it the next morning.

March 17. The Lords Justices said the matter had better be brought before the Lord Chancellor.

March 18. The matter was opened before the Lord Chancellor and the Lords Justices in a private room at the Privy Council.

Mr. Turner explained the nature of the case of Ex parte Birchall,(1) from a note taken from the Reg. Book, and said that, in this case, the amount of the property was above that which made it necessary, under the practice before 1852, that [218] a bill should be filed, and submitted that the cases Ex parte Molesworth (4 Russ. 308, n.) and Ex parte Lakin (4 Russ. 307) must be considered to have overruled the case of Ez parte Myerscough (1 J. & W. 151); and that the rule established, after a conference with Lord Eldon, as mentioned in Ex parte Molesworth (4 Russ. 308, n.), could not be rescinded by the single decision of a Vice-Chancellor, in Ex parte Starkie (3 Sim. 339); and that the summons in Chambers was, on that account, equivalent to a bill filed. He then submitted that, even were that not so, the custody of the infant's property, and the order for maintenance out of the funds in Court, drew after it the care and custody of the person of the infant, referring to Wright v. Naylor (5 Madd. 77) and Wellesley v. Duke of Beaufort (2 Russ. 1, 18, 20, 21). The Trustee Relief Act, however, put the question beyond all doubt, as it was a narrow view to say that an order made should not have the effect of making an infant a ward of Court; because the asking for that order in a suit regularly instituted in the Court, without the actual order itself in the suit, had that effect; and the object and effect of that Act, as explained by Lord Cottenham in Ex parte Bloye's Trust (1 M'N. & G. 488), was to put the Petitioners in the same position as if a bill had been filed, and the suit had come on for further directions after a payment into Court by the executors or trustees. With [219] regard to legacies paid in under the Legacy Duty Act, he said that, though infants did not become wards of Court by that payment, that was inapplicable to the present case, as the words of that Act were, that application should be made to the Court by "petition or motion in a summary way," without any reference to a suit regularly instituted; and the jurisdiction, being a statutory jurisdiction, did not draw after it the ordinary jurisdiction of the Court.

THE LORD CHANCELLOR, after conferring with the Lords Justices, said that, without expressing any opinion as to any question except that arising on the Trustee Relief Act, he was of opinion that the effect of that Act was to put the parties in the position pointed out in the case of In re Bloye's Trust, and insisted on in the argument; and that he was of opinion that Miss Hodges was a ward of the Court.

(1) 3 Atk. 813; Reg. Book, 1753;* A. 471.

The following additional facts are taken from that book. The name of the second infant was Hester, not Mary. The petition was presented by the two infants, John Crowther and John Birchall, and shewed that J. Crowther had paid his addresses to Sarah; that P. B., the father of Sarah and Hester, was lately dead; that the mother of the infants had lately intermarried with one Wood, and was since dead; that the Petitioners considered him a very improper person to have the care and management of the person and effects of the Petitioners, Sarah and Hester; that the Petitioner, John Birchall, was uncle to the Petitioners, Sarah and Hester, and had been applied to by the Petitioners, Sarah Birchall and John Crowther, for his consent that they should intermarry together; that the Petitioner, John Birchall, was willing that the said intended marriage should take effect, believing the same to be a proper marriage; that the fortune and business of John Crowther was equal to the fortune of Sarab Birchall; and the Petitioners therefore prayed that the Petitioner, John Birchall, might be appointed guardian to the Petitioners, Sarah and Hester Birchall; and that the Petitioner, John Crowther, might be at liberty to marry the Petitioner, Sarah. All parties were ordered to attend, and on their attending, and on hearing the petition read, and counsel of all parties: it was ordered that the Petitioner, John Birchall, be appointed guardian of the person and estates of the said Petitioners, Sarah Birchall and Hester Birchall, the infants.

* Sic, the Book for 1754 begins Nov. 6.

March 19. Mr. Turner appearing for the Petitioner, and

Mr. Howe consenting as before,

THE VICE-CHANCELLOR granted the prayer of the petition, except that part praying for the transfer of the funds, which stood over.

[220] LANGFORD v. SELMES. March 14, 16, 1857.

[S. C. 3 Jur. (N. S.) 859. See Bryant v. Hancock [1898], 1 Q. B. 719;
[1899], A. C. 442.]

Landlord and Tenant. Estoppel. Remedies.

The doctrine of estoppel between landlord and tenant is founded upon the principle that a lessee, having accepted a lease, may not plead to the action of his lessor nil habuit in tenementis.

But the lessee may plead to such an action that the lessor had an interest at the date of the lease, but that such interest had determined before the alleged cause of action

arose.

Therefore, if a termor affect to grant a lease for a term exceeding his own term in duration, and to reserve an annual rent, that would operate as an assignment of his term, and there would be no estoppel between him and the person to whom he made such assignment; and, accordingly, it would be doubtful whether the assignor would have any remedies for recovering the rent. The statute 4 G. 4, c. 28, does not give power to distrain for such a rent.

This was an application by a purchaser under a decree of the Court to be discharged from his purchase, on the ground of a defect in title and a misdescription in the particulars of sale.

By a deed, dated the 22d of September 1823, W. Cooper demised two houses, Nos. 3 and 4 St. George's Road, to B. C. Langford and J. Langford, for ninety-nine years, from the 24th of June 1823, with a power to them to purchase the fee-simple within twenty years.

By a deed of the 24th of March 1833, containing no recitals, B. C. Langford and J. Langford demised the premises to T. Fowle from the 25th of March 1833, for eighty-nine years and three-quarters minus ten days, at a rent of £6, so that this term, in fact, exceeded the residue of the original term of ninety-nine years by six months less ten days.

B. C. Langford devised and bequeathed all his real and personal estate to J. Langford; and, subsequently to the death of B. C. Langford, J. Langford acquired the fee-simple in the demised premises by purchase, under the covenant in the original lease, and the tenant continued to pay the rent up to the present time.

The devisees of J. Langford now sold the property, under the order of the Court made in a suit to administer his estate, and described it in the particulars of sale as "a freehold ground-rent of £6 per annum issuing out of two private dwellings, Nos. 3 and 4 St. George's Road, let on [221] lease, which will expire on the 14th day of December 1922."

The purchaser objected to complete, on the ground that a right of distress could not be given to him, and that the rent was not a freehold rent-and, accordingly, he applied to be discharged from his purchase.

Mr. W. M. James, Q.C., and Mr. Kingdom, for the purchaser. The deed of the 24th of March 1833 operated as an assignment of the whole interest of the original lessees, and therefore the rent reserved is not incident to any reversion, and there is no power of distress: Parmenter v. Webber (8 Taunt. 593), Thorn v. Woollcombe (3 B. & Ad. 586). In Pollock v. Stacy (9 Q. B. 1036), where it is said that the relationship of landlord and tenant continues, it is admitted that the right of distress is gone.

If the purchaser were obliged to take the premises, he could not sue on the covenants contained in the under-lease in his own name, but would have to sue in the name V.-C. XIV.-35