Plaintiffs, and then did in fact select as their victims those who opposed the views of the directors. I cannot consider that to be a course which this Court will regard as a just exercise of the legal rights of a creditor.

In reference to the question whether the Plaintiffs should not be put upon the terms of giving judgment on the scire facias to the extent to which they may be found indebted to the company, I think that such an order would not be just, because it would be allowing the Defendants, the directors, to vary their position and rights in relation to the Plaintiffs through the medium of a third party brought in to assert their rights. The solicitors are not to be deprived of their remedies, or to have to wait for what is their [413] due; but a call may be made for the satisfaction of their debt, or execution taken out against other parties, or some other course might be adopted which it is not for me to suggest.

The injunction must be granted to restrain the Defendants, the solicitors, from prosecuting their right under the scire facias against the Plaintiffs, or any other person on whose behalf the bill was filed, until further order.

In the

Dividends.

[413] In the Matter of THE TRUSTS OF THE WILL OF JOHN HUNGERFORD. Matter of THE RUGBY AND STAMFORD RAILWAY ACT, 1846. And in the Matter of THE LANDS CLAUSES CONSOLIDATION ACT, 1845. March 20, 1855. Costs. Lands Clauses Act, s. 80. Adverse Litigation. Incumbrancer. Upon a petition for the reinvestment in land of money paid into Court under the Lands Clauses Act, and invested in stock, and for payment to the Petitioner, the tenant for life of the lands taken by the company, of the dividends of the fund in Court, the company must pay the costs of incumbrancers on the interest of the Petitioner, who have been served at their suggestion, and appear, but do not oppose, and who have never made any claim upon the company or the fund in Court, such costs not coming within the exception of costs of adverse litigation in the 80th section of the statute.

Semble, such incumbrancers need not have been served at all.

The Court will order the dividends of such a fund to be paid to the tenant for life before conveyance, where the company are in possession of the land.

This was the petition of the tenant for life of certain lands, part of which had been purchased by agreement by the London and Birmingham Railway Company, under the Lands Clauses Consolidation Act. The petition prayed for the investment in a proposed purchase of land of the purchase-moneys, which had been paid into Court in the usual way, and for the investment of the same moneys in stock in the meantime, and for payment of the dividends to the Petitioner.

Upon the petition coming on to be heard on a former occasion, it appeared from the affidavits on behalf of the [414] company that there were several incumbrancers on the Petitioner's interest. The Court thereupon ordered the money to be invested in consols and accumulated, and the rest of the petition to stand over in order to serve the incumbrancers. This had been since done.

Mr. De Gex appeared for the Petitioner, and asked for an order to pay the dividends to him; but there being difficulties in the way, he did not now ask to reinvest the capital in the purchase of land.

Mr. Osborne, for an incumbrancer upon the life interest of the Petitioner, did not oppose, but asked for his costs.

Mr. Speed and Mr. Osler, for the company, objected to pay the costs of the incumbrancer, citing Ex parte Smith.(1)

Mr. De Gex referred to the 80th section of the Lands Clauses Act, and said that in Ex parte Smith (1) the Vice-Chancellor must have considered that the incumbrancer

(1) 6 Railw. Cas. 150; and see Re Webster, 2 Sm. & G. App. vi.; Re Braye, 22 L. J. Chanc. 285; and Re Vicar of Creech St. Michael, 21 L. J. Chanc. 677.

was improperly served. He had communicated with the counsel engaged in that case, who seemed to think that this was the reason for the decision.

[THE VICE-CHANCELLOR.

objection to the order.]

The incumbrancer is not adverse. He makes no

In Ex parte Cofield (11 Jur. 1071) an order was made for the payment of the dividends of the fund without the concurrence of an incumbrancer, which shews that in Ex parte Smith the service on the incumbrancer was unnecessary. In this case the company insisted on the mortgagee being served, although the mortgagee had made no adverse claim.

[THE VICE-CHANCELLOR. Then he need not have been served at all.]

[415] In Dinning v. Henderson (2 De G. & S. 485), where the estate was the subject of an administration suit at the time of the purchase, the company were ordered to pay the costs of transferring the purchase-money from the account of the Railway Act to the credit of the suit.

[THE VICE-CHANCELLOR. That seems inconsistent with Ex parte Smith (6 Railw. Cas. 157).]

In Picard v. Mitchell (12 Beav. 486), infants being interested, a reference was directed to ascertain what course would be most for their benefit, and the company were ordered to pay the costs of it. So in the case of a lunatic. (1)

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I wish to discover the principle of the various decisions on this point. I am most perplexed with the cases in which companies are made to pay the costs of parties to suits respecting the property who are served with the petition.

Where the interest may be considered as divided into shares, as in the case of a simple administration suit, there is really no hostile litigation, and that seems to be a case not within the exception as to the costs of adverse litigation in the 80th section of the Lands Clauses Act; but if a difficulty arises from other persons contesting the right of the tenant for life, such persons are litigant parties, and their costs seem to be within the exception.

The position of the mortgagee in this case is simply that of being one of several persons interested in the fund in [416] Court, without any litigation about it. The tenant for life has charges upon his interest not occasioning any litigation. The Court may have erred in requiring these incumbrancers to be served at all, as they have not ousted the tenant for life from his possession, and have not given any notice to the company or made any claim requiring that they should be brought here. The company on the former occasion suggested the facts upon which I ordered the incumbrancers to be served. Under these circumstances the incumbrancers having been duly served, and it not being clear whether the case of Ex parte Smith (6 Railw. Cas. 150) was not decided upon the ground that the mortgagee was considered to be improperly served, I think that the right conclusion is that the company should pay the costs of the incumbrancer who appears.

The company cannot be charged with the costs of the attempt to have the money reinvested in land, which failed.

Mr. De Gex asked for payment of the dividends to the Petitioner, citing Ex parte Cofield (11 Jur. 1071).

Mr. Speed objected until the conveyance was executed by him.

THE VICE-CHANCELLOR. The company are in possession of the land, and it seems so reasonable that the tenant for life should have the dividends at the same time that, unless some authority to the contrary is cited, I am inclined to make the order.

ORDER.—Arrears and future dividends to be paid to Petitioner till further order. Company to pay costs, charges and expenses of the incumbrancer and of the Petitioner (except as regards the affidavits as to the propriety of reinvestment in land mentioned in the petition).

(1) Re Taylor, 1 Mac. & G. 210; and see Re Hull and Selby Railway Co., 5 Railw. Cas. 458; Carpmael v. Proffitt, 17 Jur. 875.

V.-C. XIV.-17*

[417] SWALLOW v. BINNS. March 15, 16, 20, 1855.

[S. C. 1 Jur. (N. S.) 843. See Jeyes v. Savage, 1875, L. R. 10 Ch. 560 (n.); In re Knowles, 1882, 21 Ch. D. 810; Wakefield v. Maffat, 1885, 10 App. Cas. 435; Leader v. Duffey, 1888, 13 App. Cas. 301.]

Vested Interest. Time of Vesting. Portions.

By a voluntary settlement, expressed to be made in consideration of natural love and affection for settlor's son G., and daughters M. and E., property was settled in trust for settlor for life, with remainder, as to part, in trust for G. for life, and, after his decease, in trust for all G.'s children which might be living at the time of his decease, as tenants in common; and if G. should have but one such child, then for such only child; the share of every such child to be vested at twenty-one, or, if a daughter, at twenty-one or marriage; with proviso for survivorship if more than one child of G., and any of them being a son should die under twenty-one, or, being a daughter, under twenty-one without having been married; and in case all such of G.'s children as were sons should die under twenty-one, and all such of them as were daughters under that age without having been married, then over; and as to other parts of the property, in trust for M. for life, and, after her decease, for all her children, who, being sons, should attain twenty-one, or, being daughters, should attain that age or be married, in such manner and form, and in such shares and proportions, and subject to such clauses of survivorship, &c., as before declared with respect to G.'s children; and, as to a third part of the property, upon trusts for E. and her children, similar to the trusts for M. and her children. Held, that the instrument, though voluntary, and not expressed to be made in consideration of natural love and affection for the settlor's grandchildren, was within the rule in Emperor v. Rolfe (1 Ves. sen. 208); and that, having regard to the terms of the limitation over, after the trusts for G.'s children, and notwithstanding the different form in which the trusts for the children of M. and E. were expressed, two children of G. who attained twenty-one, and subsequently died in his lifetime, took vested and transmissible interests equally with those of G.'s children who survived him: the rule being that, whereas, in ordinary instruments, an express estate thereby limited cannot be enlarged except by necessary inference, yet, upon instruments of this description, there is an implication of law, arising upon the instrument itself, subject to any expression to the contrary, that it is the intention of any person who places himself in loco parentis to provide portions for children or grandchildren, as the case may be, at the period when such portions will be wanted, namely, upon their attaining the age of twenty-one, or, in the case of daughters, upon their attaining that age or marriage; and that such portions shall then vest, whether the children do or do not survive their parents.

Nathaniel Binns, by an indenture expressed to be made in consideration of natural love and affection for his children, George Binns, Mary, the wife of Watts Wrigley, and Elizabeth, the wife of Joseph Saunderson, and his grandchild, Ruth Binns, the daughter of his son, Richard Binns, then deceased, settled real and personal estate in trust for himself for life, and it was thereby declared that the trustees should, after his decease, stand seised and possessed of a part of the real estate, called Pickwood Scarr, and of £1000, part of the personalty, upon trust for George Binns and his assigns during his life, and, after his decease, upon trust to sell the estate called Pickwood Scarr, and to stand possessed of the proceeds of the sale and of the £1000 upon trust, as follows:-"In trust for all and every of the children of the said George Binns [418] which may be living at the time of his decease or born alive in due time afterwards, equally to be divided amongst them share and share alike; and if the said George Binns shall have but one such child, then for such only child; the share or interest of every such child being a son or sons to be vested at his age of twenty-one years, and the share or interest of every such child being a daughter or daughters to be vested at that age or on the day of her marriage (with lawful consent), whichever shall first

happen, to be paid and transferred at the said age or time, unless the same shall happen in the lifetime of the said George Binns, and in such case to be paid and transferred immediately after his decease; provided always, and it is hereby declared and agreed by and between the parties to these presents, that if there shall be more than one child of the said George Binns, and any of them being a son or sons shall die under the age of twenty-one years, or being a daughter or daughters shall die under that age without having been married, then and in such case, as well the original share hereby intended for every such child so dying as aforesaid, as also the share or shares which by virtue of this present clause shall have survived or accrued to him, her, or them respectively, shall from time to time go, accrue, and belong to the survivors and survivor and others and other of such children, and as far as circumstances will permit shall vest in and be paid to him, her, or them (if more than one), in equal shares and proportions, at such time or times and in such manner as is herein before declared concerning his, her, or their original share or shares of and in the said trust moneys and premises, and the interest, dividends, and annual produce thereof. And it is hereby declared and agreed, that the said" trustees "shall stand and be possessed of and interested in the said trust moneys and premises, upon trust, to pay and apply the interest, dividends, and annual produce of the respective shares therein of the said children, after the decease of the said [419] George Binns, for and towards their maintenance and education, until their respective shares shall become payable or transferable, or to pay and apply so much of such interest, dividends, and annual produce as the said" trustees "shall in their discretion think fit. And in case the whole of the interest, dividends, and annual produce of any child's share shall not be applied for his or her maintenance and education, then the surplus thereof shall from time to time be laid out, when the same shall amount to a competent sum, on real or landed security, at interest, in the names or name of the said "trustees, "who shall be possessed thereof upon and for such and the same trusts, intents, and purposes as are herein contained concerning the share from which such surplus of interest, dividends, or annual produce shall arise, or as near thereto as the circumstances of the case will permit; provided always, and it is hereby declared and agreed, that in case all such of the children of the said George Binns as are sons shall die under the age of twenty-one years, and all such of them as are daughters under that age without having been married, then, and in either of the said cases, the said " trustees "shall stand and be possessed of and interested in the said trust moneys and premises, or of the unadvanced parts thereof and interests therein," upon trusts for other persons.

The indenture then contained a declaration that the trustees should stand possessed of other parts of the real estate, and of a further sum of £1000, part of the personalty, upon trust for Mary Wrigley during her life, and after her decease upon trust for Watts Wrigley during his life for the maintenance and support of himself and the children of Mary Wrigley, and after the decease of the survivor of Mary and Watts upon trust to sell the last-mentioned hereditaments and premises, and to stand possessed of the proceeds of such sale and of the last-[420]-mentioned sum of £1000 upon trust, as follows:"Upon trust for all and every the children or child of the said Mary Wrigley, who being a son or sons shall live to attain the age of twenty-one years, or being a daughter or daughters shall live to attain that age or be married, in such manner and form, and in such shares and proportions, and subject to such clauses of survivorship and maintenance, and other provisoes, declarations and agreements, as are hereinbefore expressed and declared with respect to the children of the said George Binns; and in default of such children or child, then in trust for all and every the children of the said George Binns and Elizabeth Saunderson who shall live to attain the age of twenty-one years, or depart this life under that age leaving lawful issue him or them surviving."

A further part of the real estate, and a further sum of £1000, other part of the personalty, was then by the indenture settled upon trusts for the benefit of Elizabeth Saunderson and her husband, corresponding with the trusts for the benefit of Mary Wrigley and her husband; and after the decease of the survivor in trust, as follows:"In trust for all and every the children or child of the said Elizabeth Saunderson, who being a son or sons shall live to attain the age of twenty-one years, or being a daughter or daughters shall live to attain that age or be married, in such manner and form, shares and proportions, and subject to such clauses of survivorship and main

tenance, and other provisoes, declarations and agreements, as are herein before expressed and contained with respect to the portions herein before provided for the children of the said George Binns; and in default of such last-mentioned children or child, then in trust for all and every the children of the said George Binns and Mary Wrigley, who shall live to attain the age of twenty-one years, or depart this life under that age leaving lawful issue."

[421] Other portions of the personalty were selected upon trusts for the benefit of Ruth Binns.

Nathaniel died in 1822. George died in 1851, leaving four children, all of whom attained twenty-one.

George had also two children who died in his lifetime, after the date of the settlement, having both attained twenty-one. George was the sole next of kin of these children at the time of their deaths.

The estate called Pickwood Scarr was sold, and the net proceeds of the sale, together with the £1000, amounted to £52,000.

Conflicting claims having been advanced in reference to the £52,000, a special case was stated for the opinion of the Court whether the two children of George, who attained twenty-one, and subsequently died in their father's lifetime, did or not take vested and transmissible interests in any and what shares of the £52,000.

Mr. Amphlett, for the Plaintiff, the surviving trustee of the settlement.

Mr. Wickens, for the four children of George Binns, who survived him. The four children of George Binns who survived him are entitled to the whole of the trust fund: Whatford v. Moore (7 Sim. 574; S. C. on appeal, 3 My. & Cr. 270), Fitzgerald v. Field (1 Russ. 430), Hotchkin v. Humfrey (2 Mad. 65), Farrer v. Barker (9 Hare, 737), Skipper v. King (12 Beav. 29).

[422] The trust is express: "In trust for all and every of the children of the said George Binns who may be living at the time of his decease;" and, unless the Court is prepared to strike out this clause, it cannot hold that any child of George Binns who died in his lifetime took a vested and transmissible interest. The limitation over, indeed, is loosely expressed, and does not in terms exclude such children; but that circumstance does not furnish ground for enlarging the operation of the original gift, which, as a general rule, is never to be enlarged by the operation of a limitation over. In Perfect v. Lord Curzon (5 Madd. 442), as also in Hope v. Lord Clifden (6 Ves. 499), both of which cases will be cited as authorities for a contrary construction, the consideration of marriage existed: but here there is no such consideration; this is a voluntary settlement, and though expressed to be made in consideration of natural love and affection for the settlor's children, and for one of his grandchildren, Ruth Binns, it makes no reference in the recitals to any other grandchild. In such a settlement there is no presumption in favour of the shares vesting at a particular period irrespective of the question whether the donees survive their parent; there is, therefore, no pretext for applying the rule in Emperor v. Rolfe (1 Ves. sen. 208), a rule which, according to the late authorities, has long since been carried to its full legitimate extent, and is, in future, to be strained no further: Whatford v. Moore (3 My. & Cr. 270) and Farrer v. Barker (9 Hare, 737, 744).

If further argument be wanting, it will be found in the terms of the limitations in favour of the children of the settlor's daughters, each of which limitations is as expressly in favour of the vesting at fixed periods as the [423] limitation in favour of the children of George is adverse to that construction. By expressing himself so differently, the settlor must have meant something different.

Mr. Selwyn, for the executors of George Binns.

Each of the two children of George Binns who attained twenty-one, and subsequently died in his lifetime, took vested and transmissible interests in one-sixth of the trust fund and in those shares the executors are now entitled as representing George Binns, who, at the decease of his children, was their sole next of kin; the rule being that, in all cases of this description, where a person places himself in loco parentis towards and provides portions for children, this Court presumes an intention on his part that such portions should vest at the time when they are likely to be wanted, that is, at twenty-one or marriage, irrespective of the question whether such children survive their parents: Perfect v. Lord Curzon, Hope v. Lord Clifden, Maitland v. Chalie