TAYLOR t. EARL OF younger children of Robert, (the testator); that is, that they might be construed as a description merely of the subject-matter of the HAREWOOD. devise, and not as necessarily expressing the subsisting limitations. But is that the natural import of the words? I think not. I think the words, according to their natural import, refer to limitations known or supposed by the party who uses them to be still subsisting; and, consequently, (for that, I think, is an unavoidable consequence), that the will must primâ facie be read in the way contended for by Daniel Wilson Davison; not, however, by actually interpolating words into the will, but by giving the words found in the will their natural operation. The suggested interpolation, as I read the will, adds other words, but without adding anything to the effect of the will. This construction, moreover, is strongly recommended by reason and probability. A man who knows that an estate stands limited to himself and his descendants, so that his eldest son may or may not become entitled to it under existing limitations, may reasonably enough make a provision in his own will contingent upon his son becoming entitled to such settled estate; and the same observation may perhaps apply to a case in which a parent has special grounds-as the existence of known affection, or a declared intention-for expecting that one of his children may come into the possession of an estate not actually settled upon him. But, as an abstract proposition, I cannot well conceive anything more irrational or improbable than that a testator should make the provisions of his own will contingent upon one of his children becoming entitled to an estate not settled upon him, and which the testator has no reason-such as I have supposedfor expecting that his child will ever become entitled to. But the strength of the argument for the construction which is favourable to the estate of Daniel Wilson Davison *is not entirely seen until the difficulties of the opposite construction, as well as the improbability of it, to which I have adverted, are taken into account. [ *384 ] It was of necessity admitted at the Bar, that the words "come into actual possession" could not be read in their full and comprehensive sense. An actual possession by purchase for value,-by a mortgage from the owner, -as tenant from year to year, or as lessee for years rendering rent,-as judgment creditor, and tenant by elegit,-these and various other cases were put at the Bar as cases in which Daniel Wilson Davison might be in the actual possession of the estate, and yet not in such possession as was required by the will of Robert, (the testator), in order to produce the effect thereby TAYLOR r. EARL OF prescribed. But these considerations, it is said, by no means lead to the conclusion that the possession contemplated by the testator necessarily meant a possession by force of the limitations in the will HAREWOOD. of Robert, (the settlor). It was said, and truly, that estates tail are often barred, not for the purpose of destroying, but of perpetuating an old settlement, by re-settling the estate; and it was asked, whether, in such a case, it would be held that Daniel Wilson Davison was not in "actual possession" within the meaning of the will, only because the original limitations had been superseded by others avowedly made for the purpose of perpetuating the former. I shall give no opinion here, whether, in the case of a clause like that in question, and of an estate tail barred and simultaneously renewed as part of one transaction, the estate being ultimately undiminished in quantity, and unimpaired in value, the Court would or would not consider the new limitations as a continuance of the old that is not the case before me. In this case William Holt Davison acquired an estate in fee-simple in the whole property, and by his will asserted the most absolute dominion over it, by the charges to which *he subjected it, and which by possibility might have exhausted the entire property. It is impossible to treat the transaction as made with reference to the old limitations. He gives Daniel Wilson Davison an estate not like that under the first will, but a fee; and I cannot, in principle, hold that an actual possession by purchase for value, by Daniel Wilson Davison, would not be an actual possession within the will, and at the same time. hold that an actual possession by devise from a stranger, who was a purchaser for value, would be in a different position; or, by parity of reasoning, that an actual possession by a devise in fee-simple, after a recovery, would not be attended with the same consequences with reference to the provision in question. Two constructions are proposed: one rational and probable, consistent with the words of the will, and, I incline to say, required by them, without adverting to the difficulties of any other suggested construction; the other, replete with difficulties, and for that reason making the former the more probable, if it be not the natural construction of the words. It was, however, said, that the extrinsic facts excluded the construction contended for by Daniel Wilson Davison; that the recovery suffered in 1806 of the Betton estate made it impossible, at the date of the testator's will, in 1810, that that estate could. ever come into the actual possession of Daniel Wilson Davison by force of the limitations created by the will of Robert, (the settlor); [ *385 ] that the limitations could not therefore take effect as to the whole of the estates entailed upon the testator and his issue; and that that construction, being necessarily excluded as to part of the estates, must also be excluded as to the rest of them; and that the words of the clause must be modified so as to make them reasonable in a sense other than that of referring to the old limitations. But I think the reasons I have already given exclude this argument. The argument supposes Robert Davison (the testator) to have had actual notice of the fact that a recovery had been suffered of the Betton estate; but there is no ground to presume that he was aware of that fact; on the contrary, the words, as I have already said, appear to me, according to their natural import, to suppose and speak of the old limitations as subsisting. I think that is the natural effect of the language of the will, and, unless I have something before me to exclude that meaning, I think I am bound to adopt it. 1844. March 22, 23. WIGRAM, [ 387 ] FAIRTHORNE v. WESTON (1). (3 Hare, 387-393; S. C. 13 L. J. Ch. 263; 8 Jur. 353.) A bill by one partner against another, alleging that the defendant, by conducting himself in violation of the partnership contract, excluding the plaintiff, and applying the assets to his own use, sought to force the plaintiff to dissolve the partnership before the end of the term, and praying an account of the partnership transactions and a receiver, but no dissolution : Held, that the bill was not demurrable. THE bill alleged that the plaintiff and defendant, on the 1st of January, 1840, entered into partnership as attornies, solicitors, and conveyancers, for a term of two years, under articles, whereby it was agreed, that, in consideration of 700l. then paid, and of a further sum of 700l. to be paid to the defendant by the plaintiff at the expiration of the term, the defendant and the plaintiff should be jointly interested in the business until the 31st of December, 1841; and that they should contribute in equal shares to the capital and expenses of the concern, and divide the profits equally; and that at the end of the two years the defendant should retire, and yield up the business, offices, and certain appointments which he held, to the plaintiff, who should thenceforth carry on the same on his sole account, in his sole name, and for his own profit; that the partnership business was carried on under the articles until April, 1842, the defendant not having retired from (1) Watney v. Trist (1876) 45 L. J. Ch. 412. v. WESTON. [ *388] the partnership as he ought to have done; that, in April, 1842, FAIRTHORne the defendant induced the plaintiff to enter into articles of partnership for a further term of five years, and by such new articles, reciting the previous partnership agreement, and continuing most of its provisions, it was agreed that the defendant, at the expiration of five years, should retire from the business and offices, and deliver up the same to the plaintiff, who should then succeed to them, and thereupon pay the 700l. to the defendant; and that, in the event of the defendant being unable to procure the plaintiff the appointment to such offices, he should hold them for their mutual. benefit. The bill alleged that the extension of the term was procured by the defendant with the view of so conducting himself, in the course of *such extended term, as to compel the plaintiff to seek for a dissolution of the partnership, and by that means to leave the defendant in the sole possession of the business, appointments, and offices; and it alleged that the accounts were made up to the 30th of April, 1842, and the plaintiff had frequently requested the defendant to concur with him in making up the books of the partnership since that time, but the defendant refused. to do so, in order to drive the plaintiff to a dissolution of the partnership, and to determine the provisions by which the defendant was bound: that the plaintiff had kept proper accounts of his receipts, payments, and dealings on account of the partnership, but that the defendant had not kept any such accounts since the said date, or that, if he had, he had concealed them, and absolutely refused to allow the plaintiff to inspect them, in consequence of which the plaintiff had been prevented from making out proper bills of costs for the business transacted by the said co-partnership; that the defendant, since the month of April, 1842, had done much business and received considerable sums of money on account of the partnership, and of the said appointments, which he had refused to give any account of, and that he had applied such monies to his own use; that he continued to exclude the plaintiff from all knowledge and control over the business, and had repeatedly expressed a determination to bring about a dissolution; and, that, by the means aforesaid, and by frequently using violent and insulting language to the plaintiff, the defendant endeavoured to compel the plaintiff to seek for or consent to such dissolution. The bill prayed that an account might be taken of the copartnership dealings and transactions from the date of the last settlement thereof, and also an account of the monies received t. WESTON. [ *389 ] FAIRTHORNE and paid by the plaintiff and defendant *respectively in respect. thereof, and of all the receipts and payments of the said defendant in respect of the said offices and appointments which ought to have been brought into the said co-partnership account, the plaintiff thereby offering to account for the partnership dealings and transactions which had been carried on by him, and his receipts in respect thereof; and that a fair and proper division of the profits made by the co-partnership from the 1st of January, 1840, might be made between the plaintiff and defendant, not disturbing or varying the accounts so made up as aforesaid; and that the defendant might be directed to pay to the plaintiff what, upon the taking of such accounts, should appear to be due to him, and that (if necessary) some proper person or persons might be appointed to receive, collect, and get in the debts of the said co-partnership. [390] The answer of the defendant admitted the first partnership for the term of two years, and the articles upon which it was founded, and submitted that the bill was demurrable, and that, under Order XXXVIII. of August, 1841, the defendant was not bound to answer further. The plaintiff took exceptions for insufficiency, which were allowed by the Master. On exceptions to the Master's report, Mr. Kenyon Parker, and Mr. Shee, for the defendant, in support of the exceptions to the Master's report, [cited Loscombe v. Russell (1), Waters v. Taylor (2), Forman v. Homfray (3), Goodman v. Whitcomb (4), Marshall v. Colman (5), Vansandau v. Moore (6), Pigott v. Bagley (7), Knebell v. White (8), and other cases]. Mr. Romilly, and Mr. Glasse, for the plaintiff, in support of the Master's certificate of insufficiency: In the recent case of Miles v. Thomas (9), the VICE-CHANCELLOR OF ENGLAND expressed his opinion to be, that the Court ought to interfere in partnership cases, though no dissolution was prayed, if the object of the suit was to protect the partnership property from destruction by any of the partners. [They cited Goodman v. Whitcomb (10), Richards v. Davies (11), Harrison v. Armitage (12), (1) 3 R. R. 83 (4 Sim. 8). (2) 13 R. R. 91 (15 Ves. 10). (8) 47 R. R. 329 (2 Y. & C. Ex. Eq. 15). (9) 47 R. R. 320 (9 Sim. 609). 347). (12) 20 R. R. 284 (4 Madd. 143). |