situated was personal estate in the view of a court of equity, yet that its real nature was not so changed as to make it liable to probate duty under 55 Geo. 3. c. 184. Schedule, 3; that that act must be construed strictly as a penal act Denn d. Manifold v. Diamond, 4 B. & C. 243; s. c. 3 Law J. Rep. K.B. 211. Williams v. Sangar, 10 East, 66. The King v. Barham, 8 B. & C. 99; s. c. 6 Law J. Rep. M.C. 78. Cockburn v. Harvey, 2 B. & Ad. 797; s. c. 1 Law J. Rep. (N.s.) M.C. 32. Brandling v. Barrington, 6 B. & C. 467, 475; s. c. 5 Law J. Rep. K.B. 181. The act merely affected property which the ordinary in early times might have taken in pios usus The Attorney General v. Drake, 10 Cl. & Fin. 257. The Attorney General v. Dimond, 1 Cr. & Jer.356; s.c.9 LawJ.Rep. Exch. 90. In re Ewing, 1 Cr. & Jer. 151; s. c. 9 Law J. Rep. Exch. 37. In re Bruce, 2 Cr. & Jer. 436; s. c. 1 Law J. Rep. (N.s.) Exch. 153. The Attorney General v. Hope, 1 Cr. M. & R. 530. The question always was, what property the executor took by virtue of the probate. Mr. Collyer, for the persons beneficially entitled, cited Platt v. Routh, 3 Beav. 257; s. c. 10 1 Collier's Eccl. Hist. p. 525, 551. 21 Hen. 8. c. 5. s. 5. Wentworth's Office of Executor, ed. 4. Godolphin's Orphan's Legacy, p. 70. Mr. Twiss and Mr. Maule, for the Crown. Whatever property, locally situate in England, the executor or administrator takes quà executor or administrator, that the ordinary would be entitled to distribute; and that, although at law the interest of the testator is of a real nature, as in the case of a mortgage in fee become absolute at law at the time of the testator's, the mortgagee's, death. The only exceptions are, property locally situate out of the jurisdiction, and the case of an executor taking equitable assets in the character of a trustee. Phillips v. Phillips, 1 Myl. & K. 649; Stead v. Newdigate, 2 Mer. 521. Mr. Romilly replied. May 28.-WIGRAM, V.C.-The only question which remains to be decided in this suit is the question intended to be raised by this petition; namely, whether probate duty is payable on that part of the estate of Miles Western which consisted of certain freehold and copyhold estates named in the Master's report. I say intended, because, on reading this petition, it appears as if the executor was giving up the point contended for; and, instead of insisting that the probate duty was not payable, he has prayed that provision may be made for this duty out of the fund in court, and the balance distributed among the persons beneficially interested under the will of Miles Western. The Crown has appeared by counsel, and waived the objection as to the form of the petition; but before the order is made, it will be proper to amend the petition in that respect. The question argued before me being purely a question of law, I was desirous of sending a case to the Court of Exchequer, but all parties desiring my opinion, I am willing to give it; but it must appear on the face of the order that it was at the request of all parties. It appears by the Master's report that Miles and Charles Western, before and at the death of the former, were seised, as tenants in common in fee, of the freehold and copyhold estates in question. Part of these estates had belonged to former firms, to the business of which Miles and Charles Western had succeeded, and part had been acquired by them during their partnership. The whole of the property, which consisted principally of public houses, was purchased with partnership monies and was used for partnership purposes, and was so used until the death of Miles. The case for the Crown was rested on this proposition, that such property was, in equity, though not in fact, personal property for all purposes. Phillips V. Phillips was referred to as having carried out that rule, and determined that real estate in such circumstances is personal estate for all intents and purposes. A decision against the Crown in this case would not conflict with that decision, or with the other cases upon the same subject; and consequently I am not called upon to express any opinion upon Phillips v. Phillips; all that is necessarily involved in the cases referred to, including that of Phillips v. Phillips, may be referred to this, that those whom property directed to be converted is vested in or bequeathed to, are trustees for the owners of the personal estate; and the rule is fully satisfied by that interpretation. The rule so interpreted decides nothing in the present case. Again, the circumstance that the proceeds of real estate directed to be converted can be recovered only by the personal representatives, and that they cannot be recovered without probate, is equally inconclusive. The land, by the act of the owner, is to be distributed as his personal estate, and the probate is only evidence of the right of the executor to receive the proceeds for the purpose of distribution; and for this reason, without more, probate is necessary. The case of personal estate locally situate abroad at the time of the testator's death, and the case of real estate devised to pay debts, are cases within the terms of the argument I am now considering, but in neither of these cases is duty payable. The language of the Stamp Act is also inconclusive. By the statute the duty is described as payable "upon the estate and effects of the deceased, for or in respect of which the probate shall be granted." This leaves open the question whether the property in question is property for and in respect of which probate must be had within the meaning of the act. The answer to the question in issue cannot be found in any of the preceding considerations, but must be sought for in the result of the inquiry into the nature of the property for which probate is strictly necessary. Is then real property directed to be converted into money of the nature of that which, but for the will, the ordinary in early times would have been entitled to take in pios usus? I may refer to the cases of The Attorney General v. Dimond, The Attorney General v. Hope, and Lord Abinger's observations on the same case, and Platt v. Routh. This question must be answered in the negative. The whole line of cases respecting bona notabilia appears to me to shew this without controversy, unless it can be successfully contended that the interest of a person in the proceeds of lands of inheritance directed to be sold, is bona immobilia, within the 21 Hen. 8. c. 5. s. 4. This cannot be successfully contended. Suppose a man to convey lands to a trustee upon absolute trust to sell and pay debts, and to pay the surplus to himself is his interest during his life, or at the moment of his death, of a real nature or of a personal nature? He could not have disposed of it before the late Will Act, except by a will attested by three witnesses. Those who claim under him are bound to take the property with the character which the testator has impressed upon it; but that does not alter the real nature of the property at the time of his death-Bourne v. Bourne (1). Might not the legatees entitled to the surplus pay the debts, and take the land discharged of the debts? If so, could the Crown insist upon the land being sold in respect of the interest it had in ascertaining the amount of the probate duty? For to that length the argument for the Crown must go; and if it cannot be pushed to that length, the decision must be against the Crown. In the simple case I have put, of lands directed to be converted into money, the answer to the claim of the Crown would be, that the property was real estate at the death of the testator, and as such was not liable to duty; and that equity will not alter the actual nature of the property, merely to subject it to fiscal claims. to which it was not liable in its existing state, and to which it is not made liable by the Stamp Act. The right to discharge the property from the trusts for sale on the part of the testator, or those who claim under him, is part of the original equity, (1) 2 Hare, 35; s. c. 11 Law J. Rep. (N.s.) Chanc. 416. which in the first instance treats the real estate directed to be converted as personal estate. On that part of the case I give my opinion with great confidence, because Lord Langdale, in a late case of Matson v. Swift (2), had come to the same conclusion before I had any communication with him. The question then arises whether the circumstance of its being partnership property makes any difference. The argument, which at the moment had some effect on my mind, was, that the interest of a deceased partner in the estate is an interest in the balance to be recovered in respect of the partnership accounts; but that, in my opinion, makes no difference; that is true, as between the partners themselves, but it does not alter the nature of the property: the state of the accounts may render a sale unnecessary, and so may the acts of the parties themselves, so that no difference is made by that view of the case. The costs of the executors must come out of the fund. } BOLTON v. WARD. WIGRAM, V.C. May 22, 28, 30. J Copyholds-Agreement for PartitionSpecific Performance. A. and B, joint tenants of certain copyhold lands of inheritance, by an agreement in writing, made before the statute 4 & 5 Vict. c. 35, agreed to a specific division of the lands between them; and each party during their joint lives had the exclusive possession and enjoyment of the share allotted to him by the agreement. B. afterwards died intestate. On bill, by his heir, against A, it was held that the Court could decree a specific performance of the agreement, even although it had no jurisdiction before the statute to decree a partition of copyhold lands. Stephen Ward, the testator, by his will, dated in May 1831, devised all his real estate at Norwood, in Yorkshire, to his sons William Ward and Stephen Ward during their natural lives, and to their heirs after their decease, subject to and charged with an annuity of 10l. to the testator's widow, and to certain other legacies and annuities given (2) Ante, p. 354. NEW SERIES, XIV.—CHANC. by his will; and the testator devised the residue of his estate both real and personal to his said two sons, whom he also appointed his executors. The testator died in November 1831, and William and Stephen both proved the will. The estate at Norwood consisted of certain copyhold or customary hereditaments, parcel of the manor or forest of Knaresborough, in Yorkshire. Shortly after the testator's death Stephen and William entered into possession of the testator's freehold and copyhold estates, and in December 1831, they were admitted, and their names entered on the court rolls of the manor of Knaresborough, as joint tenants of the copyhold or customary hereditaments and premises at Norwood. By an agreement, in writing, dated the 13th of February 1833, and signed by both parties, Stephen and William agreed to divide the testator's freehold, copyhold and personal estate between them, and the deed specified by name the parcels of the freehold and copyhold estates that were to belong to William, and Stephen was to take the remainder; and it was further agreed that William and Stephen should provide in equal shares for the debts, &c. of the testator, and the legacies and annuities given by his will. After the execution of the agreement, Stephen and William respectively took possession of those parts of the testator's freehold and copyhold estates allotted to them by the agreement, and continued during their joint lives in the exclusive possession and enjoyment thereof respectively; and each of them took upon himself and satisfied a moiety of the annuity of 101. given by the will to the widow, and in other respects performed his part of the agreement. The two brothers, however, continued till the death of Stephen, on the court rolls of the manor as joint tenants of the customary premises. On the 23rd of April 1843, Stephen, the son, died, and thereupon the plaintiff, his sole heiress according to the custom of the manor, entered into possession of that part of the customary premises, which had been allotted to Stephen by the agreement, and applied to William to surrender into the hands of the lord, in pursuance of the agreement, Stephen's share of the customary premises to the use of the plaintiff and her heirs; and upon his refusal, in 1844, the present bill was filed, stating that by the death of Stephen, the legal estate 3 A in the whole of the customary premises at Norwood, had become vested in William ; that William was a trustee for the plaintiff of such portion of the said premises as had been allotted, by the agreement, to Stephen; and the bill prayed that the defendant, William Ward, might be declared a trustee of such portion for the plaintiff and her heirs, and that he might be decreed to do all necessary acts for vesting in the plaintiff, both at law and in equity, such last-mentioned premises. The defendant, by his answer, admitted the agreement, and the part performance thereof, as stated above, but insisted that it was the intention of the parties at the time of entering into such agreement, that the partition should be for the joint lives of the parties only, and that if such agreement, as worded, expressed more than this, it was signed by the defendant under a mistake, and ought not therefore to be carried into execution. The answer also raised the objection, that the agreement being for a partition of copyholds, and being executed previously to the statute 4 & 5 Vict. c. 35, the Court had no jurisdiction to decree a specific performance thereof. Mr. K. Parker and Mr. Shee, for the plaintiffs. Mr. Piggott, for the defendant.-The answer insists that the agreement, if expressed as for an absolute partition, was entered into under misapprehension. The agreement itself is ill worded and confused, and the defendant signed it as a marksman. Court will not enforce an agreement contrary to the intention of the parties. Marquis Townshend v. Stangroom, 6 Ves. 328. Higginson v. Clowes, 15 Ves. 516. The Beaumont v. Bramley, Turn & Russ. 52. Secondly, the Court has no jurisdiction to enforce partition of copyholds, because it is an interference with the rights of the lord; who is absent. Horncastle v. Charlesworth, 11 Sim. 315; s. c. 10 Law J. Rep. (N.S.) Chanc. 35. Jope v. Morshead, 6 Bea. 213; s. c. 12 Law J. Rep. (N.s.) Chanc. 190. Mr. K. Parker, in reply.-No evidence has been given of the misapprehension, but it is merely alleged in the answer; and the terms of the agreement are unambiguous. The cases cited merely shew that before the late statute, a court of equity would not decree a partition of copyholds; it has nowhere been laid down, that the Court would not execute an agreement by joint tenants to hold in severalty. May 30.-WIGRAM, V.C.-I assume that the division of the property has been made in such a way that the Court might execute it with certainty, as far as regards the parcels, if it is a case in which the Court can act at all. One objection to the relief sought was, that the Court had no jurisdiction, independently of the late act 4 & 5 Vict. c. 35. s. 83, to make a partition of copyholds; and upon the authority of the cases cited, Horncastle v. Charlesworth and Jope v. Morshead, I shall assume that the Court had no such jurisdiction. If this, therefore, were simply a bill for partition, I should feel little difficulty in following those authorities. But, in truth, these parties themselves have agreed that one should have one part of the premises, and the other the other, and that this agreement should be perfected by mutual conveyance. If A. and B. were joint tenants of copyhold property, and were to join in selling the whole of that property to C, a third party, without doubt C. might compel the joint tenants to perform the contract, and they might compel the lord, by proper process, to accept a surrender from them, and to admit the purchaser. Unless therefore it can be contended, that, although the two can sell the whole of the property, yet one cannot sell a part, I do not see any objection to a decree for the specific performance of an agreement like the present. If the agreement were to sell a part to a stranger, that stranger might compel the joint tenants to perform the agreement, and they might compel the lord to accept surrenders, and to admit the purchaser as tenant of the part sold. However that might be, I have no doubt that the Court would have jurisdiction against the parties to the contract, to the extent, at least, of compelling the vendor to perform the contract. If that might be done in the case of a stranger, this division of the property, followed as it was by a separate occupation for ten or eleven years before the death of the party under whom the plaintiff claims, comes to precisely the same thing. It is nothing more or less than an agreement to sell by one to the other, and it may be perfected in the same way; and I see no difficulty in the Court decreeing a specific performance. Another objection taken was, that this was not an agreement to make partition of the property. The agreement is to divide, so that each of the brothers is to have his own portion. The agreement goes also to a division of all the residue of the property to which they are entitled under the will. I do not see the least ground for saying, that this is not an agreement to divide the property for all purposes finally and entirely. Another doubt suggested was, whether there was, in this case, a good consideration for the agreement. I think that if the partition could be compelled, there was clearly a good consideration for the agreement. Possession was delivered, and each part of the property was held under it, in pursuance of the agreement, and various acts of ownership have been since exercised. Assuming therefore that there was an agreement, there was clearly a good consideration ex post facto for it. Upon that question, therefore, I must also decree against the defendant. It was also objected, on the part of the defendant, that this agreement was not in fact the agreement which the parties intended at the time. No doubt, if parties allege and are prepared to prove that an agreement which has been reduced into writing, is not the agreement actually come to between the parties, the Court will not enforce it, but will leave the parties to their remedy at law; but I cannot apply that rule merely because the agreement is not written in the best English, and merely because a party says, that it was not the agreement intended at the time. The decree must be for a specific performance of the agreement, with a direction that each of the parties is to execute such surrenders of those parts of the property, the legal estate of which is vested in them respectively, in such manner as shall be necessary for carrying the agreement into effect; and the Master is to decide what the surrenders shall be if the parties disagree. A judgment of outlawry is not complete unless it has been entered on the rolls, and it is not sufficient to state simply that the writ of exigent was duly returned by the sheriff. An information alleged, that an action was brought in the Court of Common Pleas to recover a sum due on a bond, against the defendant, A. Annesley, and, after stating the usual steps of process up to outlawry, further alleged, that the last proclamation against the defendant was made on the 22nd of January 1835, "whereby, as on that day the said A. Annesley became and was outlawed, and the sheriff of M. so returned the said exigent accordingly, and that judgment of outlawry was duly entered in the action and registered in the Court of Common Pleas." To the information, it was pleaded that no such judgment as in the information mentioned was duly or otherwise registered in the Court of Common Pleas, and that there was no record of any such outlawry in the court or on the records thereof. No replication was filed to the plea. The plea was held good, with liberty to amend the information. For the statements in the information, on exceptions taken thereto by the defendants, Rickards and Walker, for impertinence, vide 12 Law J. Rep. (N.s.) Chanc. 393; and, on appeal, 13 Law J. Rep. (N.s.) Chanc. 238. The information, amongst other things, stated that a writ of exigi facias, and afterwards a writ of proclamation, had been obtained directed to the sheriff, and subsequently a writ of allocatur exigent,underwhich several writs the defendant, A. Annesley, was proclaimed at three county courts and two courts of hoistings, but did not appear, the last proclamation being on the 22nd of January 1835, whereby as on that day, the said A. Annesley became and was outlawed, and that the said sheriff of Middlesex so returned the said exigent accordingly. |