be increased. I can foresee no end to the demands which would be made upon trustees by remainder-men coming into possession of the trust property, who might think it not sufficiently repaired, if they might say to the trustees, "It was your duty to look after the [507] tenant for life, you had the legal estate, and it was your business to see that he was performing all these trusts; and as you have not done so we shall fix you with the liability." I think that such a doctrine cannot possibly be established. There is, therefore, no authority for my interfering with the possession of this property.

[507] WAINMAN v. FIELD. March 27, April 21, 1854.

[Distinguished, Blight v. Hartnoll, 1883, 23 Ch. D. 218. See Hickson v. Wolfe, 1858, 7 Ir. Ch. R. 460; 9 Ir. Ch. R. 144.]

Residue. Exception. Remoteness. Gift of Leaseholds.

A testator bequeathed to his executors and trustees all his personal estate (except such goods as were by his will especially bequeathed, and also except his leasehold estates, which he declared it to be his intention to exonerate from the payment of his debts and legacies), upon trust, in the first place, to pay his debts, funeral and testamentary expenses, and legacies; and in case there should be any residue of his personal estate (except as aforesaid) he gave the same to his son R. And, after giving certain specific legacies, the testator devised all his freehold hereditaments to the same trustees, upon trust for his said son R. for life, with remainder to his grandson W. for life, with divers remainders over in tail. And the testator gave all his leasehold estates to the same trustees, in trust, to permit the clear rents thereof to be received, taken and enjoyed by the person for the time being entitled to the freeholds, until such person should by good assurance become seised of the freeholds in fee-simple in possession; and then in trust to convey and assign the leaseholds to him. Held, that the limitations of the leaseholds beyond the lifeestates of R. and W. were void for remoteness; and that the interest thus improperly attempted to be given did not belong absolutely to W. as the last tenant for life, nor did it pass by the residuary bequest to R., because the exception of the leaseholds out of the residuary gift was not simply for the purpose of making a separate bequest of them, but also to exonerate them from payment of the debts and legacies, and therefore held that, beyond W.'s life-estate, the leaseholds were undisposed of by the will, and belonged to the next of kin of the testator.

The will of William Wainman, dated the 24th of March 1814, commenced as follows:-"First, I give and bequeath unto Joshua Field, of Ansthorpe Lodge, Esq., Walker Skirrow, of Lincoln's Inn, Esq., and Charles Horsfall Bill, of Easthorpe, in the county of York, Esq., my executors and trustees hereinafter named, their executors, administrators and assigns, all my ready moneys, securities for money, goods, chattels and personal estate whatsoever (except such goods, chattels and effects as are hereinafter particularly or especially given, bequeathed or disposed of; and also except such leasehold estates as I shall be possessed of or entitled to at my decease; which leasehold estates I hereby declare it to be [508] my intention to exonerate from the payment of my debts and legacies), upon trust, in the first place to pay the same for and towards the payment of all the just debts which I shall owe at the time of my death, my funeral expenses, and the expenses of proving and registering this my will, and the several legacies hereby given and bequeathed, and such other legacies as I shall by any codicil or writing under my hand hereafter give, bequeath and dispose of; and in case there shall be any residue of my said personal estate (except as aforesaid) beyond what shall be sufficient for the payment of my said debts and legacies, I give and bequeath the same to my son, Richard Bradley Wainman, his executors, administrators and assigns." And after giving certain hereditaments and personal effects specifically, the testator devised all his real estates, except his leaseholds for years, to the said trustees and their heirs, in trust for the testator's son, Richard Bradley Wainman, and his assigns, during his life, without

impeachment of waste, excepting voluntary waste in pulling down houses or buildings, or cutting down or destroying ornamental trees; and from and immediately after the determination of that estate, to the use of the testator's grandson, William Bradley Wainman, and his assigns, during his life, without impeachment of waste, except as aforesaid; with remainder to trustees to preserve contingent remainders, with remainder to the use of his first and other sons successively in tail male, with remainder to the use of the second and other sons of the body of the said Richard Bradley Wainman successively in tail male, with divers remainders over in tail, with an ultimate limitation to the testator's right heirs. "And I give, devise and bequeath all and every my leasehold messuages, lands and tenements, together with my third part or share of the rectory and tithes of Kildwick parish aforesaid, held under the Dean and Chapter of the Cathedral Church of Christ in Oxford, unto the [509] said Joshua Field, Walker Skirrow and Charles Horsfall Bill, their executors, administrators and assigns, in trust to permit the clear rents, issues and profits of the said leasehold premises and tithes to be received, taken and enjoyed by and for the use and benefit of such person or persons as shall for the time being be entitled to my said freehold manors, messuages, lands and tenements, until the persons so entitled for the time being shall, by good assurance, become seised of the said freehold premises in fee-simple in possession; and immediately after that shall happen, then in trust to convey, assign, transfer and assure the said leasehold messuages, lands, tenements and tithes, with their appurtenances, unto such person who shall become so seised as aforesaid, his, her or their executors, administrators and assigns, by such deeds, writings, instruments and assurances, as by such person shall be reasonably required, and at his or her costs and charges." And the testator directed that his trustees should in the first place, and in preference to all payments therein before directed to be made by them out of the rents and profits of his real estates, apply a sufficient part of the rents and profits of his real estates in paying all the annual rents, taxes, fines of renewal and other necessary outgoings, as the same should from time to time become due to the Dean and Chapter of the Cathedral Church of Christ in Oxford, on account of his third part of the lease of the rectory and tithes of the parish of Kildwick; and he thereby appointed the said Joshua Field, Walker Skirrow and Charles Horsfall Bill his executors.

The testator died on the 5th of April 1818; Richard Bradley Wainman then entered into possession of the said estates, and died in September 1842, leaving the Plaintiff, William Bradley Wainman, who was his only child and general legatee and devisee and sole executor, surviving [510] him and the said Plaintiff thereupon entered into possession of the freehold and leasehold estates of the testator, as the second tenant for life under the will; and he now filed the bill in this suit against the trustees and other parties interested, praying that it might be declared that he was abolutely entitled to the leasehold estates for years of the testator; and that the same might be assigned to him, and that the executors might also be ordered to assign to him the testator's residuary personal estate.

Mr. Rolt, Q.C., and Mr. J. T. Humphry, for the Plaintiff. The Plaintiff is entitled to the leaseholds absolutely, for the testator intended to give them away from his executors; and if the bequest subsequent to the Plaintiff's life interest be void it fails for his benefit. In Fearne's Contingent Remainders, 488, it is said: "Wherever a term is devised to one for a day or an hour, it is held to be a devise of the whole term, if the devise over be void, and it appears to be the intention of the testator to dispose of the whole from his executors; yet if such intention does not appear, then it has been held that a limitation of a term to one for life does not vest the whole so absolutely in him as to be at his disposal, but leaves a possibility (viz., upon the death of the devisee within the term) of reverter in the executors of the testator:" Forth v. Chapman (1 P. Wms. 666). So, in another case, it was said by Lord Ellenborough, "Though the disposition of a term to one for life, with a remainder over, will in general entitle the first devisee to no greater interest than an estate for his life, if the remainder should not take effect, and the residue of the term will go to the personal representatives of the testator: yet this rule will not hold, if it appear that the testator's intention was to [511] dispose of the whole from his executors: " Doe d. Everett v. Cook (7 East, 269). In Mackworth v. Hinxman (2 Keen, 658) Sir Gilbert Affleck bequeathed certain personalty, in trust to pay the interest to the person on

whom the baronetcy should devolve for life, so that the same should never be alienated from the title; and it was held that his successor in the title took the personalty absolutely. In Ibbetson v. Ibbetson (10 Sim. 495), a limitation of personalty, very similar to the present, being considered void, it was held to belong to the first taker, who was also the residuary legatee: Tollemache v. Coventry (8 Bli. (N. S.) 547 ; 2 Cl. & F. 611), Lord Dungannon v. Smith (12 Cl. & F. 546).

The Plaintiff is also tenant in tail of the freeholds, and the direction to pay to him the rents of the leaseholds would give him a quasi entail in them, and thus he is absolutely entitled.

But if not, then he takes them as representing the residuary legatee; for the exception of these leaseholds out of the residue means nothing more than that they are intended to be specifically bequeathed; and if that specific bequest fails it falls like any other into the residue. The next of kin can only claim on failure of part of the residuary gift. In Leake v. Robinson (2 Mer. 392, 393) Šir W. Grant, M.R., says that "Everything which is ill-given by the will does fall into the residue; and it must be a very peculiar case indeed in which there can be at once a residuary clause and a partial intestacy, unless some part of the residue itself be ill-given. . . . A testator supposes that each part of his will is to take effect, and consequently cannot be said to have any intention to [512] include in his residue anything that he has before given. . . . The limitations of a particular bequest and those of the residue may be quite incongruous, for the testator supposes that each is to have its separate effect. But what eventually turns out to be undisposed of will not the less constitute residue: " Cambridge v. Rous (8 Ves. 12). But the very case has occurred in Evans v. Jones (2 Coll. C. C. 516), where a testator gave all his personal estate except certain stock, &c., to A., and the stock, &c., he gave to B.; and the latter bequest partly failing it was held that it passed by the general gift to A., notwithstanding the exception; Vice-Chancellor Knight Bruce observing, "The case seems to me to fall within the rule, most correctly, I believe, stated by Sir W. Grant in Cambridge v. Rous (8 Ves. 12, 25) and Leake v. Robinson (2 Mer. 392), notwithstanding the expression of exception, which appears to me to mean no more than saying that the testator intends to make certain bequests, afterwards made by him."

But if the leaseholds did not pass by the residuary gift, then the Plaintiff and his father, having been in possession of them since the testator's death, have gained a title by the Statute of Limitations.

THE SOLICITOR-GENERAL (Sir R. Bethell) and Mr. Kinglake, for the next of kin. The bequest of the leaseholds is void for remoteness; and, as they are excepted out of the residue, they belong so far as not bequeathed to the next of kin. Then, these leaseholds being given in trust, the point for which Doe d. Everett v. Cook (7 East, 269) was cited does not arise; and the dictum in Forth v. Chapman (1 P. Wms. 666) is explained in the case of Ker v. Lord Dungannon (1 D. & War. 528). This [513] being a trust, no question of the Statute of Limitations can arise.

Mr. W. M. James, Q.C., Mr. Cairns, Mr. Daniel, Q.C., Mr. Bird and Mr. Hardy, for other parties.

Mr. Humphry, in reply.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. The only point in this case which, from the first, appeared to me to raise any question was that which was involved in the decision in Evans v. Jones (2 Coll. C. C. 516). But I do not think that case can have any application to the present. The Lord Justice Knight Bruce (then ViceChancellor) there held that, there being a gift of the whole of a testator's personal estate except certain stock, and a subsequent gift of that stock, which did not exhaust all the interest therein to other parties, the intention of the exception was clearly upon the whole instrument not to diminish the general gift of the personal estate, but to give the stock to those particular legatees; and that there was no difference between saying, "I give the stock to A. B. and the residue to C. D. ;" and "I give all my personal estate to C. D. except the stock, which I give to A. B." I do not know any other case in which such a gift has been so construed; but the ground of this particular decision is clear. The gift being by way of exception, the testator first dealing with the whole personal estate with this exception implied no more than a gift of the whole residue except what was otherwise bequeathed. The rule must, therefore,

be to ascertain in such cases whether or not the exception is merely for the purpose of making the particular bequest. [514] In this case it cannot be for the sole purpose of devising the leaseholds to other persons: it is also expressly to prevent the trustees taking them upon the trusts of the will; and it is analogous to the case of AttorneyGeneral v. Johnstone (Amb. 577), where it was held that the testator had clearly expressed an intention that the residue was not to include lapsed legacies. Here the intention is also clearly expressed. The trustees are to take the residue for the purpose of paying the testator's debts out of it, and to hand over any balance after payment of those debts to Richard Bradley Wainman. The testator excepts the leaseholds, for the reason that he wishes to exonerate them from the payment of his debts and legacies, and not for the purpose of making the particular bequest of them; and if I were to hold the contrary, I must decide that the bequest, having failed by reason of remoteness, the leasehold estate must be brought back into the trusts of the residue, of which the first is to pay the debts and legacies-whereas, the testator has said in the preceding clause that it is to be exonerated from the payment of those debts and legacies. He could not by law absolutely exonerate them; but he meant that what was put into the hands of the executors was to be a fund for payment of debts and legacies in preference to any other. The only interest which Richard Bradley Wainman takes is through the medium of the trustees, after satisfaction of that trust. The gift is to trustees of all the residue, except the leaseholds, for payment of debts and legacies ; and if there be anything remaining the testator gives it to Richard Bradley Wainman; and therefore he can only take through the medium of the execution of a trust, from which this property was excepted. I think, therefore, that the learned Judge who decided Evans v. Jones (2 Coll. C. C. 516), looking through the whole will [515] for the intention, would have held that the intention of this will was to except this particular property out of the gift, and not to give it to the trustees for those purposes for which the residue was given to them. The testator had both an intention to bequeath these leaseholds for other purposes, and a negative intention not to give them for those particular purposes.

The other points in the case seem to be clearly settled by decision. One of these rests upon the case of Doe d. Everett v. Cook (7 East, 269), the question being whether, where there is a gift of leasehold property to one expressly for life, supposing the executors to have assented and the legal estate to have been thus taken out of them, if there be other subsequent trusts which cannot take effect, there is any equity by which the estate can be revested in the executors, though the valid bequest of it was only for life. Forth v. Chapman (1 P. Wms. 666) decided that, when a person was in this position, and the leaseholds had passed from the executors by way of assent, they having assented, the whole term was out of them, and there was no way of bringing it back. If that case went farther, which I do not think it did, I should entirely concur in the observations made by Lord St. Leonards, then Lord Chancellor of Ireland, in Ker v. Lord Dungannon (1 D. & War. 528). It would be difficult then to sustain it, and that learned Judge refused to follow the case further. The argument cannot arise where the legal estate is in the possession of the trustees of the will; and that particular class of cases cannot therefore sustain the view of the Plaintiff.

The next question is whether or not the limitations of the leaseholds after the life-estates are in fact void. Upon this point it is impossible to see a reasonable distinction be-[516]-tween this case and Lord Dungannon v. Smith (12 Cl. & F. 546). The limitations of the freehold estates here are in effect to A. for life, remainder to B. for life, remainder to unborn persons in tail, and then the trusts of the leaseholds is to permit the clear yearly rents to be received, taken and enjoyed by such person as shall, for the time being, be entitled to the freeholds, until such person shall, by good assurance, become seised of the freeholds in fee-simple in possession, and then to convey the leasehold estates to him, and not till then. Clearly there can be no acquisition of property under such a series of limitations until some tenant in tail of the freehold estates shall have attained an age at which it will be competent to him to execute a disentailing deed, by which he may acquire an absolute interest in them. That could not be done until such tenant in tail attained twenty-one; and therefore the freehold estates might travel through a long series of successive minorities for centuries; and the case is therefore precisely similar in this respect to Lord Dungannon v. Smith (Ibid.).

There remains the question whether the direction to pay the rents of the leaseholds to the person entitled for the time being to the freehold estates can be construed to mean a payment according to their respective interests in the freeholds, namely, to a tenant for life for his life, and to a tenant in tail, so as to give him an absolute interest; but I think that view is fallacious. The trust is to pay over the rents until an actual conveyance is made of the leasehold property; and though it is true that the word "rents" will carry the whole interest in some cases, in others it will not. The trust is to pay over the rents of the leaseholds, and not to assign them to the person for the time being entitled to the freeholds; and the effect of [517] such person being a tenant in tail would be, if the limitation were permitted by law, that the rents must be paid to him until some person was entitled to the freeholds absolutely.

The invoking of the Statute of Limitations for the acquisition and not for the defence of a title in such a case is entirely novel; and, if it could have been considered, the argument is disposed of by the circumstance that here are legal limits, within which the trust of the leaseholds is good and still subsisting, namely, during the two life-estates which were here limited for lives in being; but the limitations beyond that being to a series of parties not ascertained or capable of being ascertained, the case is so far analogous to Lord Dungannon v. Smith (12 C. & F. 546) and Ibbetson v. Ibbetson (10 Sim. 495; 5 My. & Cr. 96). The true construction of this will is that the gift of the leaseholds to the two tenants for life is good, but beyond that it is void, and the next of kin are entitled.

[518] FLEMING v. SELF. April 21, 22, March 9, 1854.

[S. C. varied on appeal, 3 De G. M. & G. 997; 43 E. R. 390 (with note).]

Benefit Building Society. Arbitration. Bill to Redeem Profits.

The provisions for arbitration of disputes between a friendly society and its members, in the 10 Geo. 4, c. 56, ss. 27 and 28, which are incorporated into the Building Societies Acts by the 4th section of the 6 & 7 Will. 4, c. 32, do not apply to questions arising in a suit by a member against a building society for redemption of the security which he has given for his future contributions on receiving his share in advance, because no means are provided for working out a decree for redemption, delivery of deeds and consequential directions; and therefore the jurisdiction of Courts of Equity, in such a case, is not interfered with.

The object of the 6 & 7 Will. 4, c. 32, was to enable persons to associate to raise shares of a value not exceeding £150, and to advance to any member who should desire it the amount of his share, less a certain discount, upon his giving security for his periodical payments to the society and the Legislature contemplated that some members would withdraw from the society, and the rest would receive each £150. But the directors have no power to specify beforehand a certain time for the duration of the society: and when they have effected to do so every member must be taken to know that they have acted ultra vires; and therefore advanced members cannot claim to have their securities delivered up, upon payment of all their monthly subscriptions and redemption moneys, which would be payable by them during the period so fixed by the directors; but they are bound to continue contributors to the society until every other member is paid his £150, or withdraws. One of the rules of such a society containing an imperative provision that the directors should allow to an advanced member, redeeming his security, "the same proportion of profits per share" as was allowed to withdrawing members, and the directors having allowed to withdrawing members a much larger sum than the funds of the society would suffice to pay to advanced members also: Held, that the directors had miscarried, and that the Court would not make a decree for redemption against the society at the suit of an advanced member, upon the terms that he should have such an allowance; and that the mistake of the directors could not be rectified in that suit.

What are "profits" of such a society.