tended, as long as that term lasted, there should be house and home, and the means of occupying and enjoying it by the persons whom she designates the objects of her bounty, and she has described that, I think, in very distinct and apt terms. If I were to yield to Mr. Rigby's argument I must wholly disappoint her intentions, and must defeat the settlement which she has very carefully prepared. Mr. Rigby's argument is that the provisions in the will with reference to the gift of the term are confined to the leasehold interest which the testatrix at the date of her will possessed in the house, and that as soon as it happened that she no longer held that leasehold for the life of Kay and 21 years after his death, the term for which that house was held expired, and all that is subsequently provided in the will became of no effect. I find no necessity in the words of the will for arriving at that construction. The mention of the term of 21 years is descriptive; it is an accurate description of the interest she had in the house, and when further she says her nieces are to reside during the remainder of the term for which the house is held of the Corporation of Liverpool, why is it not right to say that means the term of 21 years and Kay's life as any other term that can be suggested? The words are fairly answered by putting that construction upon them. The testatrix knows that for Kay's life and for 21 years the house is hers to dispose of. That is the subject of which she makes a settlement, and for 21 years she endeavours to secure to her two nieces the house and home, and the income which she had provided for them. Then she goes on to provide that, "if either of them should marry, or discontinue or cease to reside in the house occupied by me, then to pay the produce to the survivor, on the condition that the survivor or the one not marrying should keep the same in good repair," and so on. Then comes a proviso that if either of them should marry, they should take 5001. out of the principal sums for her own absolute use and benefit, free from the control of her husband. She may have considered that if one of them married, the necessity of providing a residence for her would NEW SERIES, 40.-CHANC. cease, but that I cannot now speculate upon. Then there is a proviso that "if during the said term (and the whole argument turns on the use of this word "term" and the meaning to be ascribed to it) either of them "shall have discontinued to occupy my present residence, but shall on the death of the other of them who shall have resided there up to the time of her decease, elect to take up her abode therein, she shall be at liberty so to do." [His Honour read the rest of this passage and the gift over to Catherine Wedgwood, and continued.] The testatrix's intention being first to make a settlement for the benefit of the two nieces she has first named, she then extends that benefit to the third, in the event which she has described. Then "from and after the expiration of the said term for which my said house is held." The term for which my house is held has been before described to be 21 years. The argument for the plaintiff is that the term of 21 years is only that term which had been granted by the Corporation, and whenever that ceases there is an end to the term. I do not find that to be the expression in the will. Why am I not at liberty to read "from and after the expiration of the term of 21 years?" because that was the term for which the house was held-in case both or either of them shall have resided in the house till the expiration of that term-upon trust for Mary Wedgwood and Edith Wedgwood, &c. [His Honour read the passages from the will set out above.] The governing principle of this decision is the intention of the testatrix. The argument upon the effect of the Wills Act I go along with entirely. I do not ascribe to the codicil or to the effect of the will any more than Mr. Rigby has insisted upon. As far as the intentions of the testatrix the will is to be read as if it were made at the moment before her death. How does that affect this case? Not in the slightest degree. The only event that has happened which is said to affect the construction of the will is, that some time after the date of her will she surrendered the lease which she then had, and pro 3 Y In cured the grant of another, so that at the time of her death, and at the time of her republication of her will and the confirmation of it by the codicil, she did hold a lease of the particular house from the Corporation of Liverpool, and although the term had been expanded and enlarged by her act, the nature of her property in the house was not in the least degree affected by that as far as the description goes. She had it, and it was hers to deal with whenever she thought fit to deal with it for the new term of 75 years, or for that term of 21 years which was the main object of her contemplation as to this part of the case when she provided that house and home for her nieces in succession on the conditions she mentioned. The cases referred to on behalf of the plaintiff were cases in which it was impossible that the condition could be performed. Darley v. Langworthy the lady was to have had the enjoyment of a mansion-house and furniture in it, and certain leaseholds, and then by the act of the testator it became impossible that that condition could be performed. It was held it was only so far discharged as it had become impossible. So in Gath v. Burton, where a testator gave to his debtor certain benefits under his will on condition that he paid the debt, and afterwards that condition became impossible of performance, because by accepting a composition upon the debt, the testator had released the debt. Now, where is the impossibility of performing literally and strictly and completely every condition in this will? I cannot decide now what interests Mary, Edith, and Catherine Wedgwood will take in the capital at the end of that term of 21 years; but I can decide, and I think I am bound to decide, that the declaration in the will is clear and explicit in itself, and that at least for the period which existed of that term of 21 years which is mentioned as a substantive specific thing in the will, the trusts of the will are to be in active operation-Mary Amery, who has married, is entitled to the 5007.; Edith, who has not yet married, upon condition that she keeps up the house and resides in it, will be entitled to the income of all the rest. If she should fail, and Mary Amery should not exercise that option which seems to be given to her (I do not say it is) of resuming the possession of the house, and if she continue to occupy it until the end of the term of 21 years and be alive at the end of that time, there will be a question to be decided, what is to be done with the corpus of the aggregate settled fund which the testatrix has provided for the benefit of her nieces? The declaration will be to the effect: Declare that the trusts of the will are subsisting trusts for the period of 21 years from the death of Mr. Kay, and that Mary Amery Wedgwood became entitled on her marriage to the 5007. Payment out of Court-Married Woman Resident Abroad-Power of Attorney. The residuary personal estate of a testator was divided among a number of persons, one of whom was a married woman residing in the United States of America. Upon a petition for payment out, it was asked that her share, which amounted to more than 2001., might be paid to her uncle, under a power of attorney executed by her and her husband, authorising the uncle to receive it for her separate use. It appeared that the uncle had authority to receive all the other shares. Mr. A. G. Langley and Mr. Blackmore appeared. THE MASTER OF THE ROLLS made the order asked for. Solicitors-Messrs. Collette & Collette, for all parties interested. Administration-Creditor-Covenant to accept a Lease-Rent - DilapidationsSpecialty Debt-Bond-Amount increased upon irregular Payments. E. B., the tenant of certain business premises, covenanted by a deed of arrangement made between himself and the administrator of his deceased partner, in whom the premises were vested, to accept a lease of the premises for a certain term at a rent named in the deed, and it was stipulated that the lease should contain a covenant by E. B. to keep the premises in repair, and other covenants usual in leases of a like nature. E. B. retained possession of the premises till his death, but was never called upon to execute a lease:Held, that the administrator was entitled to rank as a specialty creditor in respect of his claim for rent and dilapidations in the same manner as if a lease had been executed in pursuance of the deed on the day of the date thereof. As part of the same arrangement E. B. gave to the administrator a bond to secure part of a certain sum due from him to the partnership, and thereby bound himself, in case he should not punctually pay the instalments therein mentioned, to pay the remainder of the said sum due. The instalments were not paid regularly :-Held, that the administrator was entitled to claim as a specialty creditor for the whole sum. This was a claim in a creditors' suit instituted for the administration of the estate of Edward Boone deceased. The testator, Edward Boone, and Edward Evans, the brother of the present claimant, William Henry Evans, had carried on the business of ironmongers in partnership together, with equal interests in the partnership property, down to the death of Edward Evans, which happened in 1859. The claimant, William Henry Evans, took out administration to his late brother and entered into an arrangement with Edward Boone for settling the affairs of the late partnership. Under this arrangement, it was agreed that the claimant should purchase Edward Boone's interest in certain freehold hereditaments at Neath, Glamorganshire, belonging to the late partnership, and that Boone should continue the business and have a lease of the said hereditaments for the purpose of carrying on the business there. This arrangement was carried out by the conveyance of the premises to the claimant, and a separate deed of arrangement for winding up the affairs of the partnership. By that deed, which was made the 30th of September, 1860, between the testator Edward Boone of the one part, and the claimant William Henry Evans of the other part, the claimant William Henry Evans covenanted with the testator Edward Boone, that "he, the said William Henry Evans, his heirs or assigns, would at any time after the date thereof, at the request and expense of the said Edward Boone, his executors, administrators and assigns, execute a valid and effectual demise of the said premises to the said Edward Boone, his executors, administrators or assigns, for the term of 21 years, to be computed from the 29th of September, 1860, at the yearly rent of 1807., payable half-yearly, which said lease should contain a covenant to keep the said buildings and premises in good and substantial repair during the said term, and should contain all other covenants and stipulations usual in leases of a like nature;" and the said testator thereby covenanted with the said claimant, William Henry Evans, "whenever thereto requested by the said William Henry Evans, his heirs or assigns, to accept such lease, and to execute a counterpart thereof." By a bond dated the same 30th day of September, 1860, the testator, Edward Boone, had become bound to the claimant in a penal sum of 6,3561. 4s. 8d., conditioned for the payment to the claimant of 2,6781. 2s. 4d., being part of a sum of 3,1871. 28. 4d. due to the claimant as his brother's administrator from the partnership. The said sum of 2,6781. 2s. 4d. was made payable by instalments on certain dates, and the bond contained a condition, that if default should be made in payment of any one of such instalments or of any portion of such instalments as aforesaid, for one month after the same should have become due, then the bond should remain in full force, and the whole of the said principal sum of 3,1871. 2s. 4d., or of so much thereof as should not have been previously paid off and discharged, together with interest accrued due in respect thereof, should forthwith become due and payable to the claimant, his executors administrators or assigns; and the bond contained a proviso, stating that it was given on express condition, that in case the sum of 2,6781. 2s. 4d. and interest should be duly paid by the instalments, and at the times therein mentioned, then the last instalment of 5001. payable the 1st of May, 1865, on account of the larger sum, should be given up. The testator had not paid any of his instalments punctually, but he had paid altogether 2,3781. 2s. 4d. on account thereof. The testator died April 30, 1869, having by his will appointed his widow his executrix. . His estate, which was being administered by the Court, was admittedly insolvent. No rent had been paid for the premises since Lady-day, 1869, and no lease had ever been executed. The claimant now claimed in the administration suit, first, a sum for rent payable to him in respect of the premises comprised in the deed of 30th September, 1860; second, 3107. for dilapidations of the same premises; and third, a sum of 8001. principal, being the balance of the said sum of 3,1781. 2s. 4d., payable under the bond, and 167. 5s. for interest on 300l., part thereof from the 30th September, 1868, and 2271. 18. 8d. for interest on 500l., the other part thereof, from the date of the bond. The question now to be determined was whether or not the claimant was entitled to rank as a specialty creditor, as against the testator's estate in respect of these three sums. Mr. Willcock and Mr. J. G. Wood in support of the claim. Money due for rent, whether by deed or by parol, always ranked as a specialty debt Thompson v. Thompson, 9 Price 464, 471; Clough v. French, 2 Coll. C.C. 277; s. c. 15 Law J. Rep. (N.S.) Chanc. 24; Vincent v. Godson, 4 De Gex, M. & G. 546, 551; s. c. 24 Law J. Rep. (N.S.) Chanc. 121; Chapman v. Towner, 6 Mee. & W. 100; s. c. 9 Law J. Rep. (N.S.) Exch. 54; The agreement to execute a deed which would create a specialty debt made the debt a specialty debt from the date of the agreement — Saunders v. Milsome, Law Rep. 2 Eq. 573; They also referred to Wentworth's Executors, p. 282. Mr. Kay and Mr. Renshaw, for the plaintiff, representing the specialty creditors generally. The greater part of the amount due for rent had accrued since the testator's death. The lease was only to be accepted upon a request which had never been made. Therefore at law no damages could have been recovered for breach of the covenant, and no specialty debt had been created. A Court of Equity would not give to a debt, which was not a specialty debt at law, any priority in the administration of an estate. The claim for dilapidations rested on a mere equitable covenant. They cited Wynch v, Grant, 2 Drew. 312; s. c. 23 Law J. Rep. (N.S.) Chanc. 834; Isaacson v. Harwood, 37 Law J. Rep. (N.S.) Chanc. 209; s. c. Law Rep. 3 Chanc. 225; Holland v. Holland, 38 Law J. Rep. (N.S.) Chanc. 398; s. c. Law Rep. 4 Chanc. 449; Mr Freeling, for Mrs. Boone. BACON, V.C., held, that as the instalments payable under the bond had been unpunctually paid, the 500l. was clearly payable, and was a specialty debt. Mr. Willcock was then called upon to reply only upon the questions arising with respect to the agreement for a lease. BACON, V.C., said, that with regard to the rent, he did not think the passage from Wentworth on Executors (which he read) threw any light upon the question. The only question was whether the arrears of rent were to be considered as a specialty debt or not. The deed of arrangement contained a demise under seal, and specified the terms of the lease and the covenants which were to be contained in it. The effect of that deed was, as if on the same day on which it was executed a proper lease had been executed by the parties containing the covenant agreed upon. The testator would at any time after the execution of the deed of arrangement have been bound to execute the counterpart of such a lease if required to do so by the claimant, and the Court would have made a decree against him for the specific performance of his covenant to do so. In the cases of Wynch v. Grant and Isaacson v. Harwood, there had been no covenant entered into as there had been here. The expressions of Lord Justice Giffard, in Holland v. Holland, appeared to be confined to the circumstances of that case. An engagement under seal was a specialty. The liabilities under the covenants in this deed existed from the date of its execution, and were in the nature of a specialty. The claim must therefore be allowed. Administration - Assets Personalty Exoneration. A testator made a general and absolute bequest of his personalty, followed by a specific devise of realty for payment of his debts. The realty so specifically devised being insufficient for the payment of debts: -Held, that the residuary real estate must contribute with the personalty. Thos. Paskin made his will in July, 1856, and thereby gave and bequeathed "all his household goods and furniture, live and dead farming-stock, money, securities for money, goods, chattels, and effects, and all other his personal estate to his wife, Ann Paskin, for her absolute use and benefit." He then devised certain specific real property upon trust to "sell the same, and out of the proceeds to pay all his debts, funeral and testamentary expenses," and the surplus he gave to his said wife. Another portion of his real property he gave to his wife in fee, and the residue of his real estate he gave to her for life with remainders over. The debts having exhausted the real estate specifically devised for payment of debts, the question arose whether the next fund for payment of debts would be the personal estate alone, or the personal estate and residuary real estate rateably. Mr. Pearson and Mr. Horton Smith, for the widow, contended that the personalty was exonerated from being the primary fund for payment of debts Greene v. Greene, 4 Madd. 148; Bootle v. Blundell, 1 Mer. 193. Mr. Cotton and Mr. Haddan, for the devisees in remainder of the real estate, contended that the personal estate was not specifically bequeathed, and therefore was not exonerated Taylor v. Tabrum, 6 Sim. 281; Vaughan Hawkins on Wills, 288. Mr. Glasse and Mr. Villiers, for creditors. |