Spicer v. Spicer, 24 Beav. 365; s. c. 26 immediately before her death was, and as Law J. Rep. (N.s.) Chanc. 704. Mr. Berkeley appeared for the trustees. Mr. Glasse was heard in reply. LORD JUSTICE KNIGHT BRUCE (Aug. 4.) -In this suit the plaintiffs, the children of the late Mrs. Wallace, claim against her husband and their father a settlement of, or out of, certain personal property in value between 2,000l. and 3,000l., to which she was equitably entitled, but not for her separate use, and to which he in her right tee may with impunity hand over the property to the husband. She caunot enforce a settlement for the benefit of herself alone; it must be for the benefit of her children as well as herself. And yet, if she has carried her action far enough to establish a trust for berself and children, she may at any time before the settlement is complete waive and defeat it, not only as to her own interest, but also as to that of her children. Now, it has often been observed that, by reason of the existence of these strong anomalies in the doctrine of the wife's equity to a settlement, and the application of it, it is vain to attempt to reason out on general principles any question that arises under the doctrine, for it may be that the conclusion which by that process of reasoning upon general principles would be arrived at, would be found to be at variance with the conclusion which could be arrived at from reasoning in the same way from other propositions well established with respect to this doctrine. So the reasoning would be baffled, and the conclusion would not be worthy of being trusted. And it has been observed, therefore, that all that can be done in dealing with each case as it arises is to endeavour to ascertain what has been the practice of the Court with reference to the particular question, and of course that practice can only be deduced from the decisions that have been made, and the opinions expressed by learned Judges in pronouncing those decisions. Now, there is no doubt that there are two points at least well established with reference to this doctrine. The one is, that if the wife dies before a bill is filed, giving to the Court jurisdiction or dominion over the fund, the children have no right to require a settlement; they can file no bill after her death, nor raise any claim. The other, which is equally clearly established, is this, that if a decree or order has been made by the Court, referring it to the Master under the old practice, or to a Judge in chambers under the new practice, to approve a proper settlement, and the wife dies before anything further is done, the children are entitled to the benefit of that decree or order, and may file a bill to enforce such settlement, as the wife, if still living, would have been entitled to. Now, the question in the present case is this. A bill has been filed by Mrs. Wallace, and nothing more. Is the filing of that bill sufficient to create a trust so that the children of Mrs. Wallace can now file a bill to enforce such settlement as she, if living, could have enforced? Sir J. Leach was of her administrator, or having a right to be her administrator, ever since her death, and now is, equitably entitled, subject only to such right (if any) as she had, and subject to any rights which the present plaintiffs in the character of her children had to a settlement. Mrs. Wallace in her lifetime instituted a suit in this Court for the purpose of enforcing her equity, which suit was in existence at her death; and if she had not in her lifetime instituted any suit, it is plain and clear that, all things opinion that if any bill ever was filed in the wife's lifetime, which brought the fund, or the share of it to which the wife was entitled, under the dominion of the Court, although the wife died immediately after the filing of the bill, and before anything further had been done or said by anybody about a settlement, the children were entitled after her death to enforce a settlement. That was his opinion, and he so decided in Steinmetz v. Halthin. The reasoning which led him to that conclusion seems to have been this. The question, as he says, which was to be determined was, what proceeding must have been taken in order to impress on the property a trust in favour of the wife and children. Now, according to the general principles of the Court, if in any ordinary case a person files a bill to assert any right of property, or to enforce any trust, his right is not created by the decree. The decree only declares what his right was at the time of filing the bill. His right is independent of the decree. These are, no doubt, plain general principles of the Courts of equity. And Sir J. Leach went on to apply that principle to the question of the wife's equity to a settlement, and came to the conclusion that that equity does not depend on the decree; the decree only decides what her right was at the time of the filing of the bill; from that moment the trustee could not safely dispose of the property without the direction of the Court; and thence he drew the conclusion that a trust attached at the moment of filing the bill, and that the filing of the bill created the trust. The consequence of that process of reasoning was, as Sir J. Leach held, that not only where the wife files a bill actually asking for a settlement to be made upon her, but where the property to which she has become entitled is a share of a deceased testator's estate, and a bill is filed by anybody to administer that estate, inasmuch as from that moment the Court has jurisdiction over the property, and the trustees could not in safety part with it without the authority of the Court from that moment, although neither had the wife asked for a settlement, nor had any one surmised whether she ought to have one, not only the right to have a settlement exists, but by reason of filing that bill there was a trust attached to the wife's share of the pro; erty in favour of herself and her children, which trust her children, if she died immediately after filing the bill, might enforce after her death. Now that reasoning starts with the assumption else being the same, the bill filed by the present plaintiffs would have been unfounded and without title. Unless supported, therefore, by the suit of Mrs. Wallace, it will fail wholly. But Mrs. Wallace did not bring her suit to an end. There was not in her lifetime any decree, nor was there any order in it whatsoever, nor even any answer, as I understand. The defendants to her bill appeared to it previously to her decease; but neither the bill itself, nor any appearance to it, bound her to that you may in all cases apply the general principles of the Court to questions arising with regard to the wife's equity to a settlement. That is not the case. It is not safe to do so with regard to so anomalous a doctrine, and other Judges have taken the same view that I do, which is, that Sir J. Leach tacitly made an assumption which cannot be supported. If a man is entitled to a share of property under a will, and files a bill to assert his right, or insist that some trust in his favour is created by the will, and gets a decree in his favour, it is perfectly true, as Sir J. Leach says, that the decree does not create his right; but is it not equally true that the filing of the bill did not create his right? His right must have existed before the filing of the bill. It existed, of course, from the time when the testator died, under whose will he was entitled to share. That was the origin and creation of his interest. It was no more the filing of the bill that created the trust or the right in him, than it was the decree that created any right in him. But further, it is to be recollected, that when a woman becomes entitled to any property absolutely, as a share of property under a will, what she becomes entitled to by virtue of the will is not a trust in equity, in the sense of a trust or right of property, for the property all belongs at law and in equity prima facie to the husband; but what she is entitled to is, that notwithstanding and against the marital right she has a right to take some action or to have something done for her which shall establish a trust upon that property in her favour. That is the nature of what is called the wife's equity to a settlement before anything has been done upon it. Therefore to reason on such a right from the case of a person who has got a right of property or a trust actually created under a will or other instrument is to reason in a manner which has been deprecated by learned Judges, and is unsafe. You must put general principles aside, and must simply work out from the decided cases what is the law of this Court with regard to the wife's equity. Several Judges have dissented from the views of Sir J. Leach. In De la Garde v. Lempriere the wife was entitled to a legacy under her father's will, and a bill was filed for the administration of his estate, and the common decree was made, after which the wife died, there never having been any suggestion about a settlement. Steinmetz v. Halthin was cited, but Lord Langdale considered that Sir J. Leach's reasoning could not be maintained, and that the anything, nor was anything whatever decided against her husband in any way. Assuming, therefore, that if she had in her lifetime prosecuted her cause to a hearing, she would have obtained a decree for a settlement against him-a question, perhaps, under the circumstances of the case, reasonably arguable-I think that all possible benefit from the suit was lost to herself and her children by her death happening when it did, and that the rights of her husband then became, and now are, to all children would have no right. In Lloyd v. Mason the observations of Sir J. Wigram shew that he was of opinion that it was not the filing of the bill, but the decree which impressed a trust upon the property. In Osborn v. Morgan, Lord Justice Turner (then Vice Chancellor) had to consider the question, and I have caused the bill in that case to be examined, and it appears that the bill filed by the wife was for the express purpose of having her settlement out of two funds, one in possession and one in reversion, enforced by the order of the Court, and not, as the report would lead us to suppose, merely a bill for administration. It was in reasoning out the question as to her right to her settlement of the fund in reversion, that Lord Justice Turner made the observations from which it is clear that he did not hold with Sir J. Leach that the mere filing of a bill had the effect of impressing a trust upon the property. Besides, we have the clear and strongly expressed opinion of Lord Eldon in Murray v. Lord Elibank, that "the principle must be that the wife obtained a judgment for the children, liable to be waived if she thought proper; otherwise to be left standing for their benefit at her death." Now, how did she obtain a judgment on this bill? Filing a bill contains no judgment, but it is the decree which is in fact a judgment in favour of the wife and children. If the wife, having obtained that judgment, dies before completion, and without having done any act to waive for herself and her children the benefit of it, then it is the benefit of that judgment which the children are entitled to, and which they may file a bill to enforce. In Lloyd v. Williams, which was the case of a contract between the wife on the one hand and the assignees of the husband on the other, Sir T. Plumer, after sifting all the authorities up to that time, and examining the Registrar's book and the records of court, came to the conviction that the principle laid down by Lord Eldon was the true one. A contract may stand in the place of a decree, and be as good as a decree; but if there be no contract and there is none in the case before me-nothing but a decree will be sufficient. Now, with these authorities before me, I feel no hesitation in coming to the conclusion that, inasmuch as Mrs. Wallace died before any decree was made in the bill filed by her, there was no trust impressed on the property at her death, and that therefore her children are not entitled to file a bill to enforce a settlement. I must, therefore, dismiss the bill with costs. intents and purposes, the same as if her suit had never existed. Judicial opinions have not been uniform upon this point, as the reported cases shew; but reason and analogy, as well as the preponderance of authority, appear to me to be strongly in favour of the view which I have stated, and, accordingly, I cannot dissent from the dismissal of the present bill, although I should have preferred its dismissal without costs, and should have taken that course were I now hearing the present case originally, instead of on appeal. LORD JUSTICE TURNER.-I have read through the cases upon this subject, and the Vice Chancellor's judgment, and I find it impossible to say anything upon the question before us which would not be a mere repetition of what has been already said. It was attempted to distinguish this case on the ground that a bill had been already filed by the wife during her lifetime, and of the discretion of the trustees having, as it was said, been thereby taken away. But, whether the discretion of the trustees was taken away or not, I can find no answer to the argument that there can be nothing binding on the marital right of the husband until the decree is made. I think, therefore, that the appeal is wholly groundless, and that it ought to be dismissed. Legacy-Priority-Charity-Marshal ling Assets-Discretionary Power of Sale. The circumstance that legacies are payable immediately is not per se sufficient to give them priority over legacies the payment of which is postponed. A testator gave to trustees all his real and personal estate, with power, "if they should consider it advisable, but not otherwise," to sell his real estate, or any part thereof, and upon trust to realize the personal estate and invest the proceeds of the real and personal estate and pay the income to his wife for life; and after her death he gave out of the investments directed to be made certain general and charitable legacies, the charity legacies to be paid out of his personal estate only; NEW SERIES, 32.-CHANC. and after giving the income of the residue to A. C. for life, he directed his trustees, after the decease of the said A. C, out of his personal estate to raise and pay a further charitable legacy of 5001. The wife died, and the personal estate and proceeds of sale of certain portions of the real estate which had been sold by the trustees were insufficient for payment of all the legacies :—Held, first, that the legacies payable at the death of the wife had no priority over the 5001. legacy payable at the death of A. C; secondly, that the charitable legacies ought to be first provided for out of the pure personal estate; and, thirdly, that the trustees were bound to exercise their power of sale over the real estate to the extent necessary for providing for the general legacies. Arthur Harry Johnson, of Gresham Street, in the city of London, by his will, dated the 17th of September 1849, after giving certain specific and pecuniary legacies, and, amongst others, a legacy of nineteen guineas to the treasurer of the British and Foreign Unitarian Association, to be paid out of the testator's personal estate only, and to be applied for the advancement of the objects of that association, and making a devise to Solomon Maw and Winter Cockill of all estates vested in him as trustee or mortgagee, subject to the equities affecting the same, proceeded as follows: "I give, devise and bequeath unto the said Solomon Maw and Winter Cockill, all my real estate, (except what may be vested in me as a trustee or mortgagee,) and also all my stocks, funds, mortgages, policies of insurances, and all other my personal estate not hereinbefore disposed of: to hold the same unto and to the use of the said Solomon Maw and Winter Cockill, their heirs, executors, administrators and assigns, according to the respective nature of the same property, upon the trusts following (that is to say), as to my real estate to let and manage the same, and receive the rents and profits thereof, with power to grant leases of the same, on such terms as my trustees shall think advantageous and proper, and with power also (if they shall consider it advisable but not otherwise) to sell my said real estate, or any part thereof, by public or private sale, in such manner, at such time or times, and for such prices as they 5 D shall think proper, they investing the net produce of such sale or sales (after defraying the expenses of effecting the same) in manner hereinafter mentioned. And as to my residuary personal estate upon trust to realize (at their discretion both as it regards time and mode) such part thereof as shall not consist of money or securities, with power to compound or allow time for payment of debts owing to me, and to adjust and settle by arbitration or otherwise all questions relating to debts owing or claimed to be owing by or to me. And upon further trust, out of the produce of my residuary personal estate, to pay my debts, funeral and testamentary expenses, the legacies hereinbefore bequeathed, and all expenses attending the performance of the trusts of my will. And to invest in the public funds or at interest on government or real securities, the residue and surplus of the produce of my said personal estate, and also the net produce of my said real estate if and when sold, with full power to alter, vary and change as occasion may seem to require, all such stocks, funds and securities, and also any stocks, funds or securities of which I may die possessed. And I declare and direct that my said trustees shall pay the income of my said real estate (until a sale thereof) and of the produce thereof if and when sold, and also the income of the stocks, funds and securities constituting or arising from my residuary personal estate, to my said wife or her appointees during her life, for her separate use, and so as not to be subject to the control or engagements of any future husband, and without power to sell, charge or anticipate the growing payments thereof, (for which purpose I declare that her receipts or those of her appointees for such income shall be effectual and the only effectual discharges for the same); and after the decease of my said wife, I direct so much of the said stocks, funds and securities to be sold as will be sufficient for the payment of the following legacies, which I give and bequeath and direct to be paid as soon as may be after my wife's death, namely, a legacy of 500l. to my wife's niece Alice Cockill, a further legacy of 300l. to the said Solomon Maw, a legacy of 50l. to my nephew George Maw, a further legacy of 100l. a-piece to each of my five cousins, Ann Nickisson, Frances Johnson, Susan Turner, Mary Ann Johnson, and Charles Johnson, and a legacy of 1007. to the rector and churchwardens for the time being of the united parishes of St. Mary Haining and St. Michael, Wood Street, in the said city of London, such lastmentioned legacy to be paid out of my personal estate only, and to be invested by my said trustees in the public funds in the names of the said rector and churchwardens, who shall expend the yearly income thereof in the purchase of meat, potatoes and coals, and distribute the same on the 24th day of December, in every year, amongst such six poor persons residing in the parish of St. Mary Haining only, as in their discretion they shall consider most necessitous and meritorious. And I declare and direct that my said trustees shall after my wife's death and after paying the several last-mentioned legacies, pay and apply the income of the remainder of the said stocks, funds and securities, and also the income of my said real estate (if not then sold, and until a sale thereof and of the produce thereof if and when sold) in manner following, namely, one-half thereof during the said Alice Cockill's life, and the whole thereof after her decease, for the maintenance, education and benefit of the child, if any, of which my wife may be enceinte at my death, and the remaining half thereof during the life of such child (and the whole thereof after the decease of such child, or in case of there not being such child) unto the said Alice Cockill or her appointees during her life; all such payments to her to be for her separate use, and so as not to be subject to the control or engagements of any husband whom she may marry, and without power to alien or anticipate the growing payments thereof, (for which purpose I declare that her receipts or those of her appointees for such income shall be effectual, and the only effectual discharges for the same); and after the decease of the survivor of them, the said Alice Cockill, and such child, if any, as aforesaid, I declare and direct that my said trustees shall out of my personal estate raise and pay a further legacy of 500l. to the treasurer for the time being of the said British and Foreign Unitarian Association, to be applied for the advancement of the objects of that association." The testator then directed his trustees to stand possessed of his said real estate if not then sold, or of the produce thereof if sold, and also of the residue of his said stocks, funds and securities (after paying the legacies aforesaid), upon certain trusts for the children of Alice Cockill, with ulterior trusts for the benefit of his nephews therein named. The testator died on the 27th of October 1855, and his will was proved by Solomon Maw and Winter Cockill, who got in the personal estate, and paid the funeral and testamentary expenses and debts, and such of the legacies as were payable on his death, and sold certain portions of the real estate. The testator's widow died on the 5th of February 1860, without having had any child. The bill was filed, by Ann Nickisson, against Winter Cockill and the executors of Solomon Maw (who was alleged to have died without accounting to his co-executor) for payment of her legacy of 1007.; and the personal estate being insufficient for the payment of all the legacies given by the will, the questions arose, first, whether the real estate unsold was made applicable to the payment of the general legacies; secondly, whether the proceeds of the real estate which had been sold was so applicable; and, thirdly, whether the legacies payable on the death of the testator's widow were payable in priority to the 5007. given to the British and Foreign Unitarian Association on the death of Alice Cockill, which had not yet taken place. Vice Chancellor Kindersley held that the trustees had an entire discretion, not only as to manner, time and place of sale, but as to whether they should sell at all, and that there was no charge of legacies on the unsold part of the real estate; that the produce of the sale of the real estate which had been sold was applicable to the payment of the general legacies; that the testator had marshalled the assets in favour of the charity legacies; and that the legacies given on the death of the widow were entitled to priority over those payable at the death of Alice Cockill. The British and Foreign Unitarian Association appealed from this decision. Mr. Anderson and Mr. Busk, for the appellants, argued that the postponement of the legacy till the death of Alice Cockill gave no priority to those which were payable at the death of the testator's widow. They referred to Bench v. Biles, 4 Madd. 187. Mr. Glasse and Mr. Roxburgh appeared for the trustees. Mr. Baily and Mr. Batten, for the plaintiff and other legatees, supported the decision of the Court below, and contended that the 5007. legacy was only to be paid out of what should remain after satisfying the earlier legacies Crooke v. De Vandes, 9 Ves. 197. Mr. Anderson replied. The LORD CHANCELLOR (July 30)—after reading the will-said, that upon the question, whether the charity legacies payable on the decease of Alice Cockill were postponed to the other legacies, he was unable to concur with the learned Vice Chancellor. He thought it clear that, although the legacies were deferred, they must yet rank with those which were directed to be immediately paid. He was therefore of opinion that the trustees of the will were bound to make provision for the 500l. legacy to the British and Foreign Unitarian Association at the time when they provided for the others. He was also of opinion that the two first-given charity legacies were not entitled to preference over the third charity legacy. But then another question arose, which was of some novelty: the trustees had sold part of the real estate, and invested the proceeds in the funds, and the proceeds therefore had become assets for the payment of the general legacies, but had not been sufficient for the payment in full of those legacies, after providing for the charity legacies out of the pure personalty. The Vice Chancellor had held that the power of sale given to the trustees was purely |