1824.-Fairfield v. Weston,

directions, and that the proper course was, to move that the defendant might, within a limited time, bring in his bill of costs to be taxed.

Whether the grantor of an annuity, charged upon the rents and profits of an estate, with the usual demise to a trustee, has a right to cut timber for his own use and profit, the estate being inadequate to the payment of the charges upon it.-Quere.

THE plaintiff was entitled to an annuity granted to him by the defendant Weston, and charged upon certain estates, part of which was described as woodland, of which Weston was tenant for life, unimpeachable of waste, and further secured by a demise of the estate to a trustee for a term of years. The bill was filed against Weston and the other incumbrancers on the estate, whose charges were subsequent to the plaintiff's. After an order obtained by the plaintiff for the appointment of a receiver, the defendant Weston, who was abroad, through the intervention of an agent, sold some timber standing upon the estate, to George Marshall, who proceeded to cut it. A supplemental bill was filed against Marshall for an injunction to restrain him from carrying off the timber already cut, and from cutting any more timber. It appeared that the yearly amount of the various incumbrances on the estate considerably exceeded the yearly rents and profits. A motion was now made for the injunction, and also for a reference to the master, to inquire whether it was for the benefit of the incumbrancers that the contract with Marshall should be performed; and, if the master should be of opinion that the contract should be performed, then that Marshall might proceed in the cutting of timber according to his contract, on his undertaking to pay the price into court to the credit of the cause.

Mr. Ching for the motion.

Mr. Sugden and Mr. Witham, for the defendant Weston, insisted that the rents and profits upon which the annuity was charged did not include the [*97] profits of the *timber, and the right to cut and sell timber remained in the defendant Weston.

Mr. Merivale, Mr. Parker, Mr. Lynch, and Mr. Richards, for the other parties.

The cases cited as to the right to cut timber, were Bray v. Tracy,(a) Newdigate's case,(b) Gill v. Pindon,(c) Comyns" Digest, (d) Davis v. Duke of Marlborough.(e)

The VICE-CHANCELLOR :-The question is not whether the annuitant or the trustee of his term has a right to cut timber; but whether, the timber being

(a) Sir W. Jones, 51. (b) Moor, 72. (c) Cary, 90. (d) Waste (C. 5.) (c) 2.Swan. 131.

1824. Noel v. Lord Walsingham.

cut by the grantor, the annuitant has, or not, a right to be paid out of the price, as a part of the profit of the estate charged with the annuity. The trustee not being unimpeachable of waste clearly cannot, as a termor, cut the timber. I rather apprehend that the general charge of the annuity upon the rents and profits of the estate would include the profits of timber, unless the word profits is upon the whole deed, having reference to the uses of the term, to receive here a more limited sense. But this is not the proper season to enter more fully into this question.

The receiver is, as between the parties to the suit, to be considered as appointed from the date of the order of reference to the master; and after

the date of that order the defendant Weston was not at liberty to *ex- [*98] ercise any right of ownership upon the estate, without the authority of

the court. The interest of the incumbrancers requires that Marshall should be at liberty to proceed in the cutting of the timber but I will secure the price in order that the right to the value may be decided upon the hearing of the supplemental suit.

By an arrangement between the parties Marshall undertook to pay the price of the timber into court.

"All parties by their counsel waiving the inquiry whether the contract for the sale of timber, entered into by the defendant J. W. Weston, by his agent, and in the pleadings mentioned, is a fair contract, and such as ought to be carried into effect, this court doth order that the defendant, George Marshall be at liberty to remove the rest of the oak timber trees felled and now remaining in and upon the estates and premises in the pleadings mentioned, with the bark, lops, and tops thereof; and it is ordered that the said George Marshall do pay the amount of the valuation of the timber, in the pleadings mentioned making the deduction allowed by the contract in case of payment before the 29th of September next, the residue of such amount to be verified by affidavit, into the bank, with the privity of the accountant general in trust in this cause, &c."

Reg. Lib. A. 1823. f. 1542,

*NOEL v. LORD WALSINGHAM.

[*99]

1824, 5th July.-Portions.--Satisfaction.

A father being tenant for life under his marriage settlement with power to appoint the shares in which his younger children were to take a sum to be raised for their portions, having exercised the power by his will, afterwards made a provision for one of his daughters, took a release from her of her portion, and by a codicil revoked the appointment in his will, so far as it respected her. Held that her share did not sink into the freehold, or belong to his residuary legatee, but that the other younger children were entitled to the whole fund.

By the marriage settlement of Paul Cobb Methuen, Esq. the father of the plaintiff Mrs. Noel, dated in April 1776, certain manors and other hereditaVOL. II.

8

1824.-Noel v. Lord Walsingham.

ments in the counties of Wilts, Gloucester and Somerset, were conveyed to the use of Paul Cobb Methuen during his natural life, with remainder to the use of trustees to preserve contingent remainders, with remainder to the use of certain other trustees, for the term of five hundred years, and, subject thereto, to the use of the first and other sons of the marriage successively in tail male, with divers remainders over. The trusts of the term of five hundred years were, in case there should be two or more children of the marriage other than an eldest or only son, to raise the sum of 15,000l. for their portions, in such shares and proportions as Paul Cobb Methuen should, by any writing under his hand and seal, or by his last will and testament, or any codicil thereto, appoint, and, in default of such appointment, to be equally divided amongst them; the shares to become vested at the usual periods, but not to be payable until six months after the decease of Paul Cobb Methuen, and then to be paid with interest from his death after the rate of four per cent. per annum, and not sooner, unless Paul Cobb Methuen should by writing under his hand direct such portions, or any part thereof, to be raised and paid in his lifetime. Provided that, if Paul Cobb Methuen should in his lifetime give or advance unto or for any child or children of the marriage entitled to portions, under the trusts of the term of five hundred years, any sum or sums of

money, lands, tenements, goods or chattels for or towards the ad[*100] vancement *and preferment of such child or children respectively in

marriage, or otherwise, then such sum and sums of money, and the value of such lands, tenements, goods and chattels, should be, and be deemed, accounted and taken as and for part, if less, and, if as much or more, for the whole of the portions and provisions before provided and appointed to be raised to and for him, her or them respectively, unless Paul Cobb Methuen should by writing under his hand signify and declare the contrary.

There was issue of the marriage four sons and five daughters; (that is to say,) the defendant Paul Methuen the eldest son, Charles Lucas Methuen, John Andrew Methuen, Matilda Lady Walsingham, Catherine Matilda Plumptree, the Rev. Thomas Anthony Methuen, the plaintiff Cecilia Penelope Noel, Gertrude Grace O'Bryen and Ann Christian Methuen.

Paul Methuen, the father of Paul Cobb Methuen, by his will dated the 10th of April 1793, devised certain manors and hereditaments to trustees, upon trust, upon the request of Paul Cobb Methuen, to sell and dispose thereof, and upon the receipt of the purchase money, to pay the sum of 20,0001. amongst the younger sons of Paul Cobb Methuen, in case they should attain the age of twenty-one years, in such shares as Paul Cobb Methuen should think fitting; and he thereby declared that the 20,000l. when so paid to such younger sons, should be accepted by them in full satisfaction of their shares of the sum of 15,000l. provided for the portions of the younger children of Paul Cobb Methuen by his marriage settlement, and that the 15,000l. should then be left to be shared amongst his remaining younger children.

1824-Noel v. Lord Walsingham.

In 1795 the testator died.

*Previous to the marriage of Lord and Lady Walsingham, Paul [*101] Cobb Methuen, by an indenture dated the 12th of May 1804, appoint

ed that the sum of 3,000l. should be Lady Walsingham's share of the 15,000l. By a deed-poll, dated the 17th of May 1804, and executed by Lord and Lady Walsingham and Paul Cobb Methuen, in consideration of certain sums of money having been advanced and paid, or secured to be paid, by Paul Cobb Methuen on Lady Walsingham's marriage, to her husband and the trustees of her marriage settlement, the sum of 3,000l. so appointed in favor of Lady Walsingham, and all interest she or her husband might claim in respect thereof, was assigned to Paul Cobb Methuen, his executors, administrators and assigns, absolutely.

And Christian Methuen died intestate in the lifetime of her father, having previously attained the age of twenty-one years; and the defendant Paul Methuen, after his father's decease, took out letters of administration to her estate.

Paul Cobb Methuen, by his will dated the 12th of October 1809, directed the estates and hereditaments out of which the 20,000/, was to be raised, to be sold, and the trustees to stand possessed of the purchase money upon trust, as to the sum of 1,000l. part thereof, for his second son Thomas Anthony Methuen, his executors, administrators and assigns, to be paid immediately after his decease; and, as to the sum of 9,000l., in trust for his third son Charles Lucas Methuen; and, as to the sum of 10,000l., in trust for his youngest son John Andrew Methuen. And he thereby directed, in further pursuance *of the will of Paul Methuen, that the 15,000l. by his marriage settle- [*102] ment directed to be raised and paid unto his younger children, should be paid to his daughters only, except Lady Walsingham (and to whom on her marriage he had paid the sum of 7,000l. in lieu of any share she might have been entitled to of the sum of 15,000l.) in equal shares and proportions, and in such manner as the same was directed to be paid to his younger children by his settlement.

By a deed-poll dated the 15th of June 1813, Thomas Anthony Methuen, in consideration of a sum of money advanced and secured to him by Paul Cobb Methuen, released unto Paul Cobb Methuen and his heirs all his right, title and interest in and to the manors and other hereditaments comprised in the settlement and will of Paul Methuen, and charged with the payment of his portion as one of the younger children of Paul Cobb Methuen.

By a deed-poll dated the 31st of March 1815, Gertrude Grace Methuen, afterwards Lady Edward O'Bryen, in consideration of 10,000l. secured for her by Paul Cobb Methuen, released to Paul Cobb Methuen and his heirs all her right, title and interest in or to the manors and hereditaments comprised in the settlement charged with the payment of her portion as one of the younger children of Paul Cobb Methuen; so that neither she, her heirs, executors, ad ministrators or assigns, nor any other person or persons in trust for her or

1824. Noel v. Lord Walsingham.

them, or in her or their name or names, or in the name, right or stead of her or any of them, might, by virtue of such indentures, or by any other ways or means whatsoever, thereafter have or demand any right, title or in[*103] terest of, in, to *or out of the same manors, messuages, lands or hereditaments in respect of her share or proportion of such sum or sums of money so directed to be raised for such provision as aforesaid, but that she, her heirs, executors, administrators or assigns, and every of them, and all and every person or persons whomsoever claiming by, from, through or under her or them, from all estate, right, title, property, claim or demand, of, in, to or out of the same manors, messuages, lands, hereditaments and premises, or any of them, or any part thereof, should be thereby for ever excluded and debarred. Paul Cobb Methuen made a codicil to his will, dated the 1st of April 1815; and, after reciting his will, and an indenture, whereby, in contemplation of the then intended marriage between his daughter Gertrude Grace with Lord Edward O'Bryen, 10,000l. had been paid to her, or for her benefit, as a marriage portion, he, in consideration of such provision so made for his daughter Gertrude Grace, did thereby revoke, annul and make void the direction and appointment so by him before made in and by his will or otherwise, with respect to the sum of 15,000l. so far only as respected his daughter Gertrude Grace and her share or proportion of the same respectively, but not further or otherwise with respect to his other daughters, except Lady Walsingham.

Paul Cobb Methuen died sometime in the year 1816; and, after his decease, administration, with his will and codicil annexed, was granted to the defendant Paul Methuen, his eldest son, and residuary legatee.

[*104]

Mrs. Noel and Mrs. Plumptree married after their father's death. The bill charged that, under the circumstances before stated, the plaintiff, Mrs. Noel, became entitled to share with her sister Mrs. Plumptree, in the whole of the 15,000l., together with interest after the rate. of four per cent. per annum from the decease of Paul Cobb Methuen, in equal moieties and it prayed that the trustees of the term of five hundred years might be directed to raise the 15,000l. in pursuance of the trusts of the settlement; and that Mrs. Noel might be decreed to be entitled to a moiety of that sum, with interest after the rate of four per cent. from her father's decease.

The defendant Paul Methuen, by his answer, submitted that Mrs. Noel was not entitled to share with Mrs. Plumptree in the 15,000l., in equal moieties, for that Thomas Anthony Methuen, not having received an adequate or reasonable share with his other younger brothers out of the 20,000l. nor having made any election to accept that provision in lieu of the provision made for him by the settlemen', was entitled to share with his four sisters in the 12,000l., being so much of the 15,000l. as remained after the appointment of the 3,000l. to Lady Walsingham; and that, being so entitled, Thomas Anthony Methuen, in consideration of a sum of money advanced to him by Paul Cobb Methuen, by the deed-poll of the 15th day of June 1813, assigned to Paul Cobb Methuen all his right and interest both in the 20,000,