in no case could such objects be ascertained till the death or second marriage of the testator's widow. The gift over is held in suspense until the particular class is ascertained, and if the gift to any child of the testator be vested at all, it remains vested in such child, in consequence of there being no effective gift over.

[720] With regard to the advancement clause, it stands thus:-The wife is empowered to advance to all or any of the testator's children such sums of money for their advancement as she may think judicious, and to take their promissory note or receipt, and such advance is in each case to be accounted for to the executors as part of the share to which the child would be entitled at the decease or second marriage of the testator's wife. Now, I do not rely on my own unaided judgment when I say that such a clause as that is extremely inconsistent with an intention on the part of the testator that the child should have no vested interest whatever. Assuming the testator intended the interests of his children to remain contingent until the death or second marriage of the widow, it would follow that, in the event (which might happen) of the death, during her widowhood, of a child who may have received such an advance and given such promissory note, the representatives of such child would not only find themselves entitled to no benefit from the testator's estate, but would ultimately have to recoup the money originally advanced; and one may fairly assume that they would have to do so at a time when in all probability they will not have the means of repayment; for, if the child had possessed such means, there would have been no necessity or inducement to make the advance at all.

In Powis v. Burdett (9 Ves. 428) Lord Eldon was so struck with a similar clause for advancement that he overcame words far more difficult than any which I have here to deal with. There the words were extremely difficult-as difficult as any that have ever been got over by the Court in such a question of construction. There was a limitation to trustees upon trust, after the decease of Lord Denbigh, in case he should leave one or more daughters or younger sons, to raise £12,000 for portions to be paid at such times [721] and in such manner as Lord and Lady Denbigh or the survivor should appoint; and for want of such appointment, then the £12,000 was to be divided among such daughters and younger sons in equal proportions, share and share alike, the daughters' portions to be paid at twenty-one or marriage, and the sons' portions at twenty-one. Now, there the word "leave" had to be surmounted; and Lord Eldon said he could only surmount it by construing the word "leave" as "have"-as strong a construction as can well be conceived. But there was a proviso that, if Lord Denbigh should think proper that any portion should be raised and paid for the preferment or advancement of a child during his life, and should signify the same in writing under his hand and seal, it should be lawful for the trustees to raise such portion during the lifetime of Lord Denbigh, he keeping down the interest during his life; and then followed the usual provision for maintenance and education. Lord Eldon, after fully facing the difficulties of the will, says, "The clause providing for advancement authorises the Court to say the word 'leave' must by some management and struggle (for I admit it is so) have a sense that will make it consistent with the rest of the deed; and it is impossible to reconcile this provision unless I say, upon the trust altogether, that he must be taken to leave children, if in his life he had children who attained the age of twenty-one, or if daughters, married. Upon that clause, what is to be done if the children surviving him were the only children to take portions? It would be impossible for him in his life to say to what child he can advance a portion in his life; for the provision is not merely that he shall make a declaration of the portion, the child to rest upon that declaration during the life of the father, but the portion is to be raised and paid in his life; and the payment forms so much a part of what is to be done that, being raised, he is to keep down the [722] interest; which supposes the principal advanced by some person who is to receive the interest. Then what is to be done upon that? Suppose he had, in the case I put, raised the respective parts of the twelve children: under the words 'such daughter or daughters,' &c., connected with the expression leave,' if one child survived, upon the argument of the Defendants that child would have a right to insist that what had been advanced to the twelve was to be called back. There is, therefore, an absolute necessity for rejecting the obvious meaning either of one part of the declaration or of

another, or to make the whole as consistent as you can; and attending to the authorities, the interpretation is that the true intent and meaning of such an instrument is that a child who had attained the age of twenty-one, or a daughter who had married, was a child within the whole of the meaning left, so as to be entitled to a portion."

That was the mode in which the learned Judge overcame the difficulty which in Powis v. Burdett was presented to the construction in favour of a vested interest, and which far exceeded the difficulties with which I have here to contend in adopting a similar construction. Here the testator's intention seems to me made plain, if any intention ever was made plain, by the circumstance of what was in his contemplation. He contemplates that this advancement is to be made to his children during their majority, and only during their majority, because he directs it to be secured by a promissory note or receipt. Probably a receipt may be given by an infant, but no valid promissory note could be given by an infant; and therefore it is plain that what the testator intended was this, that all his children should have vested interests at twentyone, but that such interests should be subject to the life-estate of his widow; that if a child died under [723] twenty-one and without issue the share of such child should go over to the other children; that if any child should die at any time after twentyone leaving such issue surviving as in the will mentioned that circumstance should divest the interest to the extent of giving it to the issue instead of to the parent, and the issue should take the share of the parent, and should account for any deficiency. That would be just and reasonable, and within the words of the will; but if neither of those events should occur, if a child of the testator should attain twenty-one and die without leaving such issue, especially if he were one who had been advanced, and had given a promissory note, I cannot come to the conclusion that the testator intended the representatives of such child to pay back that sum, taking no advantage or benefit at all under the will.

I think I am justified, therefore, by the authority of Lord Eldon in Powis v. Burdett, in saying that here the son took a vested interest at twenty-one.

I ought to have commented upon one clause here which weakens the case as contrasted with Powis v. Burdett, with regard to the decision that I have come to: the testator directs that the advances to be made should in nowise exceed one-half of what the children would at the time of such advances be considered as likely to be entitled to words which possibly may indicate that the testator contemplated his children's shares as being contingent. On the other hand, they are perfectly capable of being satisfied by referring them to the possible case of the money being in a state of investment in the funds, so as to mean what the trustees might consider as onehalf of what the children would at the time of such advances be likely to be entitled to, having regard to the [724] actual state of investment of the property, and the possibility of its fall and rise.

Declare that, according to the true construction of the testator's will, and in the events which have happened the testator's son Micah having attained the age of twenty-one years, and the only issue of his marriage having died in the lifetime of the testator's widow-the personal representatives of the said Micah are now entitled to one-fifth share of the testator's residuary estate, subject to the interest of the testator's widow.

[724] ATTORNEY-GENERAL v. STEPHENS. July 18, 19, 25, 1855.

[S. C. on appeal, 6 De G. M. & G. 111; 43 E. R. 1172 (with note).] Charity Land. Ascertaining Boundaries. Evidence. Entries in Parish Books. Receipts for Rent. Privity of Estate. Estoppel. Binding Representations. Notice. Statute of Limitations.

An information on behalf of the poor of the parish of P. stated an agreement, dated in 1634, by the then Earl of Portland, which recited that there lay in his park at

R. divers parcels of land, which contained about six and a half acres, and belonged to the poor of the parish of P., for which lands, lying dispersed in his said grounds, being theretofore ordained for good and charitable uses, the earl was desirous to give a full yearly rent and satisfaction, and thereby promised and agreed to pay to the churchwardens and overseers of P. for the time being, yearly, the sum of £6, and the earl thereby further promised and agreed to make such further assurance thereof as by counsel should be advised, and to set out sufficient land of a better value for performance thereof, which he would either tie for the payment of the said yearly rent, or otherwise assure and convey to such person and persons, and their heirs, as by the vestry of the said parish should be nominated to be feoffees in trust for the same. No conveyance was shewn to be made in pursuance of this agreement. It appeared, from entries in the parish books, that the earl and his successors in the ownership of part of his land (which had since been divided) had paid every year £6, which was expressed in such entries to be rent of parish land; and that in 1849 a receipt was accepted by the then owner of part of the earl's land for £6 for "rent of parish land." Held, that it could not be presumed in the face of this evidence that there had ever been any sale of the parish land to the earl in consideration of a rent-charge.

In the agreement the amount of the rent was written upon an erasure, and it was only signed by the Earl of Portland; but, being produced out of the custody of the parish officers: Held, that it was evidence for a jury, coupled with the entries in the parish books, to prove that the rent mentioned in those entries was the same as that stipulated to be paid in such agreement, and that therefore the agreement was to pay £6 a year in respect of six and a half acres of land belonging to the parish.

The books in which the said entries were being the churchwardens' books, and appearing to have been audited, and being produced from the proper custody, although not signed by anyone: Held, that the entries were good evidence of the receipt, by the parish, of £6 yearly for rent of parish land.

A receipt, dated 1849, produced from the custody of the owner of part of the earl's estate, and expressed to be for £6 for one year's rent of parish land, held to be evidence against him that parish land was included in the estate in his possession, and that he was tenant of the parish in respect of such land; and, Held, that he was estopped by such receipt from disputing the title of the parish. Successive owners of freehold lands, with which parish lands were mixed, being tenants from year to year of the parish lands: Held, that they had a duty imposed upon them to keep such lands distinct, and that, therefore, the present owner could not defend himself, by his want of privity with the former owners in the tenancy, against a suit by the Attorney-General on behalf of the poor of the parish, to ascertain the boundaries of the parish lands.

Where such successive owners for a long time past had paid a certain rent to the parish, and taken receipts from the collectors expressed to be "for rent of parish land" Held, that the present owner could not be allowed to prove that the very land belonging to the parish was not in his possession, and that the rent had been paid by him and his immediate predecessors by virtue of a contract of indemnity between them and the actual holders of the parish land, because the successive owners, by accepting such receipts, had made a representation to which the parish had been induced to trust, that they had parish land in their possession.

A purchaser of land from an owner who had been paying this rent to the parish upon such receipts, held to have notice that part of the land purchased belonged to the parish.

Payment of rent and acceptance of such a receipt constituted an acknowledgment which prevented the operation of the Statute of Limitations.

This was an information on behalf of the poor of the parish of Putney. The case made by it was as follows:

In and previously to 1634 certain parcels of land in the [725] hamlet of Roehampton, in the parish of Putney, in the county of Surrey, containing by estimation six and a half acres, and the inheritance thereof in fee-simple had been duly assured

upon certain uses and trusts for the benefit of the church and the poor of the said parish of Putney; and under such uses and trusts the churchwardens and overseers of the said parish were, in and previously to 1634, entitled to receive, and were actually in the receipt of the rents and profits of the said parcels of land and hereditaments.

In and previously to September 1634 the said lands and hereditaments were in the possession of the then Earl of Portland, as tenant at will to the said churchwardens and overseers, and were, together with other lands belonging to himself, inclosed by the earl before the date of the agreement hereinafter mentioned; and it was in the said month of September agreed between the churchwardens [726] and overseers and the earl, that from thenceforth the earl should continue to occupy the said lands as tenant from year to year to the church wardens and overseers, at the yearly rent of £6; and a memorandum of such agreement was then reduced into writing, and was signed and sealed by the earl, and dated the 1st of September 1634, and was so far as material as follows:

"Whereas there lyeth within my new park and several grounds at Roughampton divers parcels of land which doe contain by estimation six acres and half, bee they more or lesse, and doe belong to the church and poore of ye parish of Putney, in ye county of Surrey, for wch lands lying dispersed within my said grounds being heretofore ordayned for good and charitable uses, I am desirous to give a full and valuable yearly rent and satisfaction, and doe promise and agree to pay unto ye churchwardens and overseers for the poor of ye said parishe for ye time being yearly ye sum of six pounds, the same to bee paid at the Feast of St. Michael, the Archangel, and ye Annunciation of ye Blessed Virgin Mary henceforth, by even and equall portions yearly. And I doe further promise and agree to make such further assurance hereof as by councell learned shall be advised, and to sett out sufficient land of a better value for performance thereof, which I shall either tye for ye payment of ye said yearly rent, or otherwise assure and convey to such person and persons, and their heirs, as shall by the vestrymen of the said parish, or the greater part of them, bee nominated to bee feofees in trust for the same. For witness whereof I have hereunto sett my hand and seal, the first day of September, in the 11th yeare of the reign of our Most Gracious Sovereign Lord King Charles.-PORTLAND."

The information then set out a description of the said parcels of land and hereditaments as the same existed at [727] the time when they were inclosed by the said Earl of Portland from the minute-book of the parish of Putney for the year 1636, and related that at the date of the agreement the said parcels of land were lying dispersed among other lands then belonging to the Earl of Portland, but were plainly marked out by certain boundary marks, and were well known, and capable of being identified with the description in the minute-book, and were from the date of the agreement until the year 1641 held and occupied by the Earl of Portland, together with the said other lands and hereditaments; and during all the aforesaid time the said yearly rent of £6 was duly paid by the earl to the said churchwardens and overseers for his occupation of the said lands; and entries of such payments were from time to time duly made in the books of account of the parish.

In 1641 the lands among which this parish land lay, called Roehampton estate, came into the possession of one Sir Thomas Dawes, who occupied the same till the year 1651; and also held the parish land as tenant from year to year to the said churchwardens and overseers, at the aforesaid yearly rent of £6, and duly paid such rent to the said churchwardens and overseers.

White,

In 1651 the said Roehampton estate came into the possession of one who held the same till 1655, when it came into the possession of the Countess of Devon, who held the same until 1675, when it came into the possession of the Earl of Devon, who held the same until the year 1685; and thus the information traced the holders down to the year 1829, when the same came into the possession of Bennet Gosling, who held it until the year 1842; and the information alleged that, during all the aforesaid periods, the said parcels of land mentioned in the said agreement of the 1st day of September 1634 were held by the said several successive occupiers of the [728] said Roehampton estate respectively as tenants from year to year to the said church wardens and overseers of the said parish of Putney; and during all

the aforesaid periods the said yearly rent of £6 per annum was duly paid by the said several successive occupiers of the Roehampton estate to the said churchwardens and

overseers.

In the year 1842 the said Roehampton estate was purchased by Charles Lyne Stephens of the said Bennet Gosling, and he entered into the actual occupation and possession thereof, and remained in such occupation and possession from the said year 1842 until his death in 1851, when the said Roehampton estate, and the fee-simple and inheritance thereof, descended upon and became vested in the Defendant, Stephen Lyne Stephens, who was the only son and heir at law of the said Charles Lyne Stephens; and from the date of the purchase of the said Roehampton estate until his death, in the year 1851, the said Charles Lyne Stephens occupied the said parcels of land mentioned in the said agreement of the 1st of September 1634, as tenant from year to year to the said churchwardens and overseers of the said parish of Putney; and from the date of the said purchase of the Roehampton estate up to the time of his death the said Charles Lyne Stephens duly paid to the said churchwardens and overseers of the said parish of Putney the said annual rent of £6 per annum in respect of his occupation of the said parcels of land.

From the time of the death of the said Charles Lyne Stephens, in the year 1851, when the Defendant became so as aforesaid entitled to the said Roehampton estate, down to the 25th of March 1853, the information alleged that the Defendant had been in possession and actual occupation of the said parcels of lands and hereditaments comprised in the said agreement of the 1st day of September 1634, as tenant from year to year to the said churchwar-[729]-dens and overseers of the said parish of Putney; and had regularly paid to the said churchwardens and overseers the said annual rent of £6 per annum in respect of his occupation of the said parcels of land; and that entries of the payment of the said annual rent by the different tenants of the said parcels of land and hereditaments during the whole period which had elapsed from the date of the said agreement of the 1st of September 1634 to the 26th of March 1853 had from time to time been duly made in the books of account of the said parish of Putney, and all the said books were still in existence.

The information then stated that the said parcels of land had from various causes greatly increased in value, and that the yearly rent of £6 was now very inadequate; and that in 1851 applications were made to the Defendant to allow the parish to put boundary marks to distinguish their land; and on his objecting, a higher rent was demanded, and on this being refused, the churchwardens and overseers applied to the Defendant to deliver up possession of the land, and also to allow them to enter upon the said Roehampton estate, for the purpose of ascertaining and defining it by metes and bounds; but the Defendant refused to do so.

The information continued. The Defendant pretends that the said parcels of land never were at any time divided or distinguished, or capable of being divided or distinguished, from the surrounding lands, and that there never were any metes or boundaries by which the said parcels of land could be distinguished; whereas, the informant charges the contrary of such pretences to be true, and that the said parcels of land were originally, and when the same were first let, clearly and plainly defined and distinguished by metes and bounds, and that the persons who have been in possession of the said parcels of land and hereditaments as [730] such tenants from year to year as aforesaid, and in particular the said Defendant and his said father have from time to time and by degrees removed, destroyed and obliterated, or caused to be destroyed, removed and obliterated, the said metes and bounds, and have so confounded the boundaries thereof, that it has thereby become impossible for the said churchwardens and overseers of the parish of Putney to distinguish the said parcels of land, and the said churchwardens and overseers are therefore unable to recover possession of the said parcels of land by any proceedings at law.

And it prayed a declaration that the said parcels of land, containing six and a half acres, and lying intermixed with the said Roehampton estate, were subject to a charitable trust for the benefit of the church and the poor of the said parish of Putney, and that the Defendant might be decreed to deliver up possession of the same; and for a commission to ascertain the boundaries, and in case it should be found impossible to distinguish the parish lands, then for an inquiry as to their value, and a commission