whether in his own right or in right of his said wife or otherwise, and all interest due and to become due thereon, to hold the same unto William Hamwood Frampton, his executors, administrators, and assigns upon trust, after payment of all costs, to pay or retain the principal sum of 2,2891. with interest at 5l. per cent. per annum, and to stand possessed of the residue for such person, and for such purposes, and subject to such provisions as Robert Shank Atcheson should by any writing appoint, and in default of appointment, upon trust for Robert Shank Atcheson as his absolute property.

On the 25th of October 1845 Mr. Frampton advanced a further sum of 650l. to Robert Shank Atcheson, who gave him his promissory note, and at the same time signed the following memorandum, which was indorsed upon the draft of the deed of assignment:-"I hereby appoint 650l., part of the residue of the within-mentioned share of the legacy payable to me to William Hamwood Frampton, in discharge of my promissory note to him for that amount payable three months after date."

On the 21st of April 1845 George Whieldon and Robert Gordon filed their bill in this court against Josiah Spode and Mary Birch to have the estate of the testatrix administered, and the trusts of the will and codicils carried into effect. The usual references were made; and on the 1st of June 1848 the sum of 7,9921. 17s. 2d., the amount apportioned by the Master in respect of the legacy of 14,000l., was carried over in trust in the cause of Whieldon v. Spode to an account of "Robert Shank Atcheson, his wife and children."

A suit of Gordon v. Whieldon (1) was subsequently instituted to obtain a declaration of the proportions to which the parties were entitled under the bequest "to Captain Robert Gordon, his wife and children, 3,000l. ;" and by the decree made in this suit Captain Gordon and his wife were declared entitled to one share, and their two children were respectively declared entitled to another share each. Mr. and Mrs. Atcheson were living separate, and she claimed to be entitled to a settlement upon herself and children out of the whole share to which her husband and herself were (1) Ante, p. 5.

entitled. Mr. Atcheson and Mr. Frampton, his mortgagee, filed their bill against Mrs. Atcheson and the three children of the marriage, and insisted that Mr. Atcheson was entitled to one fourth of the legacy of 14,000l. either in his own right, or in right of his wife; and after stating that no settlement or agreement for a settlement had ever been made affecting the legacy, and that his wife claimed to have a settlement of her share of the legacy made upon herself and the issue of the marriage, it charged that she was not solely entitled to any portion of the legacy, but that R. S. Atcheson and Catherine his wife were entitled to one fourth of the legacy between them, as tenants in common by entireties, and that he was entitled absolutely to dispose of such one fourth; and it prayed that the one fourth share of the 7,9921. 17s. 2d. in court might be paid to W. H. Frampton, in discharge of the amount due to him for principal and interest upon his several securities, so far as the same would extend, and that the residue might be paid to R. S. Atcheson, and that the shares of the children who had attained twenty-one might be paid to them, and that the share of the child who was under age might be secured until he attained twenty-one.

By her answer, the defendant, Mrs. Atcheson claimed to be entitled, together with her husband, to one fourth part or share of the joint legacy of 14,000l., and to have a proper settlement executed of such part or share, or so much thereof as she should be declared entitled to.

Mr. Turner, Mr. Humphry, and Mr. Faber for the plaintiff. The effect of the bequest was to vest a moiety of the one fourth of the legacy in the husband and wife separately; that was recognized in The Attorney General v. Bacchus (2): one moiety the husband took in his own right, and he was entitled to the other under his marital right. The defendant Mrs. Atcheson had no right in the entire fund, and could not claim a settlement out of it. If she had any claim for a settlement it was out of the moiety of the one fourth to which her husband was entitled by virtue of his marital right, and then he would be entitled to the dividend for life.

(2) 9 Price, 30; s. c. 11 Price, 547.

Mr. Roupell and Mr. Shebbeare, for Mrs. Atcheson.-The husband and wife are joint tenants of the one fourth share of the legacy; they were entitled by entireties, and could not separate their interests; each had an indivisible interest in the whole share; the wife therefore by the rules of equity has a right, not in possession, but a right to have a moiety settled with reference to the whole fund; and in every case where a husband and wife are jointly entitled to a fund, the Court, by the rules of equity, gives the wife a settlement out of the whole fund: it will never sever the joint tenancy. If, therefore, the husband cannot obtain the legacy except through the medium of this Court, that legacy must be subject to the equity for a settlement.

Logan v. Wienholt, 7 Bligh, 1; s. c.
1 Cl. & F. 611.
1 Shep. Touch. 112.

Mr. Beavan appeared for the three children of the marriage.

April 4.-The MASTER OF THE ROLLS. -In consequence of services performed by the husband, the testatrix gave him a benefit in the legacy jointly with his wife and children, but she gave no separate interest to any of them; and accordingly in the case of Gordon v. Whieldon it was held that the husband and wife were entitled to one share, and that the two children were entitled to one share each. The Court is now asked to determine what the interest of the husband and wife is in the share to be set apart for them. The plaintiffs claim the whole, and such appears to have been the intention of the testatrix: the gift was to the two for their common and immediate benefit, but unfortunate disagreements prevented their so enjoying it. It was argued, on behalf of the husband, that the gift created either a tenancy in common or a joint tenancy: and it was asked that he might be declared entitled to a moiety; and if any settlement was to be made, it was said that it could only be made out of the other moiety, in which case he claimed in right of his wife to be entitled to the dividends to arise therefrom. The wife claims to have a settlement made with reference to the whole sum, and asks

that she may be entitled to the whole share in case she survives her husband, just as if his name had been omitted in the bequest. It is plain that she is entitled to have a settlement out of that to which her husband is entitled in her right; but the wife cannot insist upon a settlement out of the whole as her husband is not entitled to the whole in her right: their interest is a joint tenancy, so modified as to make the rights of the parties contingent and not subject to the incidents of a joint-tenancy. The Attorney General v. Bacchus was a revenue case; there the bequest was of a residue to the daughter of the testator and to her husband, who was a stranger in blood to the deceased, for their absolute benefit; the wife took a direct and definite interest in the legacy. It was thought material to ascertain what the effect would be of a similar joint bequest to the daughter of a testator and a stranger, yet the judgment was given without any observation on those points and without making any decision upon them, though the legacy was made payable to the husband and wife jointly; if it was not paid to them and the wife survived, it belonged to her. It was certainly not payable to the husband in the life of his wife -this was a good principle; neither was it payable to the wife during the life of the husband. In this case the testatrix has not given any separate benefit to the wife. In order therefore to preserve her interest I must declare that the husband and wife are entitled together to one share; that such share must be carried to their joint account; and that the dividends must be paid to the husband during the joint lives of himself and his wife, or until further order, with liberty for any party interested to apply, either during their joint lives or on the death of either.

[See Doe d. Freestone v. Parratt, 5 Term Rep. 652; Moody v. Moody, Amb. 649; Clithero v. Franklin, Salk. 568; Doe d. Dormer v. Wilson, 4 B. & Ald. 303; Back v. Andrew, 2 Vern. 120, s. c. Prec. Chanc. 1; Green dem. Crew v. King, 2 W. Black. 1211; and see Warrington v. Warrington, 2 Hare, 54.]

The bill, in this case, stated that certain freehold property was contracted to be sold in February 1839, by Archibald Duncan (since deceased) to J. Corbett, for 1,400l.; that Corbett was let into possession, but the purchase-money was not paid, and no conveyance was made; that A. Duncan died in July 1839, and in August 1840 a conveyance was executed by the plaintiffs, who were the trustees appointed under the will of Duncan. By the conveyance it was expressed that the whole of the purchasemoney had been paid; but in fact only 4001. was paid. The conveyance was retained in the possession of the plaintiffs, and in August 1843, a mortgage was executed upon the estate for the remaining 1,000l. It was then discovered that, in April 1842, the property had been conveyed by way of mortgage by Corbett to the defendant Morgan, to secure the sum of 4001.

This bill was filed against Morgan, alleging that the defendant was aware of the transaction between the plaintiffs and Corbett, and praying an account and foreclosure of the mortgage, and a declaration that the plaintiffs were entitled to the first lien upon the estate for the unpaid purchase-money. The defendant, by his answer, denied that he was aware of any money being still owing by Corbett upon the purchase of the

estate.

Mr. Bethell and Mr. A. Smith appeared in support of the bill, and contended that the plaintiffs were entitled to a lien upon the estate for the unpaid purchase-money, and that as the conveyance was still in the possession of the plaintiffs, the defendant must be held to have constructive notice of the transaction.

Mr. Stuart and Mr. Martindale, for the defendants, contended that the legal estate had passed to Corbett, by the conveyNEW SERIES, XVIII.-CHANC.

ance; and that as the property had been conveyed by way of mortgage to the defendant, without notice of the former transaction, the plaintiff's could not claim as first incumbrancers. It was also contended, that the fact of the original conveyance to Corbett not being in his possession was not sufficient notice to Morgan, particularly as it was expressly declared by that deed that the whole of the purchase-money had been paid. The case of Allen v. Knight (1) was cited as an authority upon this point.

The VICE CHANCELLOR.-I entirely agree with what the Lord Chancellor has said in Allen v. Knight, but this is a different case altogether. The estate was sold by the plaintiffs, and only part of the purchasemoney was paid, and the plaintiffs kept possession of the conveyance. After that, the purchaser (Corbett) conveyed it by way of mortgage to Morgan, who omitted to take the purchase deeds. Lord Eldon has

said, that the difference in this country between land and chattels is, that chattels are held by possession, but land is held by title. It was the duty of the defendant to have asked for the title deeds. If he had done so, he would have discovered that they were held by the plaintiffs as a security for unpaid purchase-money. I think the defendant is bound by his own conduct, and that the plaintiffs have the first lien upon the estate; and there must be a decree for foreclosure in the usual manner where the second incumbrancer has the legal estate.

Production of Deeds-Trial at Law.

In a suit in equity to obtain evidence in aid of an action of ejectment commenced by the plaintiff against the defendant, the clerk of records and writs, upon a motion for the production of deeds admitted by the defendant's answer to be in her custody, will, upon an affidavit of service, be ordered to produce them at that or any other trial at law between the parties.

(1) 5 Hare, 272; s. c. 15 Law J. Rep. (N.s.) Chanc. 430; s. c. on appeal, 16 Law J. Rep. (N.S.) Chanc. 370.

2 H⭑

Will, Construction of Contradictory Clauses-Last Clause to controul the First -Bequest, whether absolute or for life.

A testator bequeathed the interest of all monies invested in loan societies, as well as all other property, to his wife for life. He then directed all his debts to be got in and invested in government securities for the benefit of his wife for her life, and after her decease he gave various legacies to his grandchildren; and as to the remaining part of his estate he directed the same to be put out at interest for the benefit of his wife during her life, and all monies were to be kept in the Bank of England. The testator afterwards directed that all monies belonging to him in the friendly societies when received should belong to his wife for her own use absolutely: -Held, that the last clause in the will must controul the first, and that the testator's wife was entitled to the money in the friendly societies absolutely, and not merely for life.

Held, also, that the trustees were not bound to convert the money in the societies imme

diately for the purpose of investment in government securities.

This cause came on upon further directions, and a question was raised on the will of George Joel, who bequeathed all his household furniture, plate, linen, &c. to his wife, and then bequeathed the interest of all monies invested by him in different loan societies, as well as all other property whatsoever and wheresoever, to his wife during her life; and the testator directed his stock in trade to be sold, and his debts and securities for money to be got in, and the produce thereof to be placed out at interest in the Bank of England for the benefit of his said wife during her life, and all monies so invested to be paid to her quarterly, and after her decease he gave and bequeathed various legacies to his grandchildren at twenty-one, and in case any or either of them should die before twenty-one the shares of such deceased legatees to be divided and paid together with all overplus monies to the survivors then living, share and share alike; and as to the remaining part of his said estate the same to be put out at interest in the Bank of England for the benefit of his wife during her life, and after her decease then the legacies aforesaid to be paid to his said grandchildren; and the testator's will was that all monies should be kept in the Bank of England for the benefit of the parties entitled thereto, after the decease of his wife; and the testator afterwards directed that all monies belonging to him in the friendly societies, called the Lodge of Friends, and all other societies, when received, should go and belong to his wife Mary Joel for her own use and benefit. One question under this will was, whether the money belonging to the testator in the friendly societies was to be got in and converted into money immediately and placed in government securities, or whether such sums were to be left still outstanding in the societies? Another question was, whether the wife of the testator was entitled to the monies in the friendly societies absolutely as directed by the last clause in the will, or only for life, according to the first direction.

Mr. Stuart and Mr. Baggalay appeared for the widow of the testator, and