questionable doctrine of the Court, that where a parent gives a legacy to a child, not stating the purpose with reference to which he gives it, the Court understands him as giving a portion; and by a sort of artificial rule, in the application of which legitimate children have been very harshly treated, upon an artificial notion, that the father is paying a debt of nature, and a sort of feeling upon what is called a leaning against double portions, if the father afterwards advances a portion on the marriage of that child, though of less amount, it is a satisfaction of the whole or in part; and in some cases it has gone a length consistent with the principle, but shewing the fallacy of much of the reasoning, that the portion, though much less than the legacy, has been held a satisfaction in some instances; upon this ground, that the father, owing what is called a debt of nature, is the judge of that provision, by which he means to satisfy it, and though at the time of making the will he thought he could not discharge that debt with less than 10,000l., yet by a change of his circumstances, and of his sentiments upon that moral obligation, it may be satisfied by the advance of a portion of 5,000l." And then he says, (at p. 153,) "It comes to this, that where a father gives a legacy to a child, the legacy coming from the father to his child, must be understood as a portion, though it is not so described in the will, and afterwards advancing a portion for that child, though there may be slight circumstances of difference between that advance and the portion, and a difference in amount, yet the father will be intended to have the same purpose in each instance; and the advance is, therefore, an ademption of the legacy; but a stranger giving a legacy, is understood as giving a bounty, not as paying a debt; he must, therefore, be proved to mean it as a portion or provision, either upon the face of the will, or, if it may be, and it seems that it may, by evidence applying directly to the gift proposed by that will; and, recollecting how artificial the rules are, where a person has educated a child through life, considering himself as standing in the relation of putative father to that child, having a father acknowledged, describing that child," and so on; and then he goes on to

speak of the particular circumstances of the case before him. Then he says, "Upon the authority of Powel v. Cleaver, unless you can shew that, at the time of making the will, the testator meant to give a portion as parent, or as standing in loco parentis, and meant to satisfy that in the whole or in part, by the subsequent advance, the Court is not authorized by the artificial rules of equity to hold it a satisfaction."

Some of the cases, however, seem to represent that the ademption may be presumed from the identity of provision; and with respect to that, the rule also seems to be clear, that wherever a party is a parent, or, if I may use the expression, has parenti-located himself, and has assumed the loco-parental character, there, slight circumstances will not prevent the presumption, that the second provision should be an ademption of the first; but where the party who has given both provisions, has not the parentis locus, or the parentilocal character, you will look at the difference between the provisions, for the purpose of seeing whether any presumption arises from complete identity of purpose; and if you look with that regard to the present case, you will see that in this case the provisions are wholly and essentially different. It is true, that the sum is the same; but with respect to the 10,000l., which was given by the settlement, that was only to be a charge upon the reversion: that 10,000l. might never happen to be raiseable at all, and it might, if raiseable at all, have happened to be raised, not immediately upon the death of Sir John or Sir Fitzwilliam, but after the failure of such issue as might happen to be living at the death of Fitzwilliam, and who might go on in a long succession of minorities, until so many years had expired, that the portion might be of no use, either to the persons who were parties to the marriage, or their children; in effect it might never have been raised at all. raised at all. And then it is also observable, that the provision by the settlement is a provision, in case there were more children than an eldest son, exclusive of the eldest son; and it is a provision by means of which only the husband, who was a party to the settlement, himself could take an interest, whereas the provision given by

the will is materially different, as it appears to me. In the first place, it is a provision, by means of which any husband that Miss Julia might have, that survived her, would take an interest: it is a provision in which all her children, by any succession of husbands, would take an interest: it is a provision which, at all events, must have been satisfied in part, because at all events there must have been some proceeds, to arise from the 51. per cents. and the Hadfield Broad Oak estate; so that, if the reversion had never come into possession at all, or availably into possession, still a fund was forthcoming, which, it is proved by the defendant's evidence, was in the contemplation of Sir John himself, such as might have been sufficient to satisfy the whole of the 50,000l. Then, at all events, something was forthcoming under the provision by the will. That was not the case with respect to the provision under the settlement. The mode in which the parties are to take by the will, appears to me to be essentially different from the mode in which they are to take under the settlement; and it appears to me, the mere presumption which might arise from identity of disposition, is excluded by a comparison of the funds, out of which the two provisions were to arise, and of the modes in which the two provisions were destined to operate; and my opinion, therefore, is, that in that respect the presumption of satisfaction cannot arise; and I feel that more strongly, because the case was cited of Brown v. Peck, which certainly was a very strong case, as it appears to me, for holding it was a satisfaction; because, there, the testator, by his will, had given to his niece eight dwelling-houses, with remainders over, and two legacies of 500l. each; and then he makes a subsequent settlement on the marriage of his niece, by which he settles five dwelling-houses, one of which was the same as that which he had devised by his will, and a sum of 5001. upon the husband and wife successively, and the issue of the marriage. But he stood in the situation of uncle towards the niece; and when the case came before Lord Keeper Henley, he was of opinion, the settlement made by the testator on his niece, was not an ademption or satisfaction of the devise or bequest made by the will, but that she

was entitled, both to what was given under the settlement and what was given under the will.

Now, with respect to the rule itself of ademption arising upon presumption, it appears that great Judges have entertained different notions with respect to its propriety; and it seems that my Lord Hardwicke certainly did not approve of the rule. My Lord Thurlow, in Debeze v. Mann and Powell v. Cleaver, expressed his approbation of it. Lord Eldon clearly, in the cases of Trimmer v. Bayne and Ex parte Pye, shews what his opinion was-viz. that it was an inconvenient rule for Courts to deal with; and it is quite obvious, that anything which tends to make uncertain what was a testator's intention, or a donor's intention, is of itself a rule fraught with inconvenience. It appears, however, my Lord Kenyon thought it was a very good rule, and found it adopted as a rule of law; and it appears from the five cases in the last number of Russell & Mylne's Reports (5), before the late Master of the Rolls (6), that he also approved of the rule, and thought the rule a very good rule; but yet the fact of his having five cases in succession, and of somewhat complicated circumstances, arising all upon the rule, might have been some sort of hint. I think that the rule was not a very convenient one, to say the least of it. I mention this more particularly, because some persons have a great affection for a mere artificial rule of law; and I observe there has been a very clever and amusing book, written by Sir Harris Nicolas, in which he considers the artificial rule infra quatuor maria; and he is of opinion, the rule is a good rule; because it prevents questions. That reason may be a good one; but on the contrary, this rule of presumed satisfaction, is a rule which actually raises questions. My opinion is, upon the whole view of this case, that the defendants have not made out a case of presumed satisfaction; and the consequence, therefore, is, that Mr. Powys and his child are entitled to have both the portions raised.

(5) Vol. 2, part 2. (6) Sir John Leach.

Income Tax-Arrears of Annuity.

The arrears of an annuity which accrued due while the income tax was in force, but which were unpaid, in consequence of the rents of the estate on which it was charged being exhausted by prior charges, are payable to the annuitant, without any deduction in respect of the income tax.

In the year 1811, certain estates had been charged with the payment of annuities, which exceeded the annual rents. One of the annuitants, whose charge was postponed to others, now claimed, for arrears in respect of his annuity, a sum exceeding 10,000l., and the Master had allowed that claim, without any deduction on account of the income tax. Exceptions were taken to the report, on the ground, that during the time the income tax was in force, the claimant was only entitled to his annuity, minus what would have been payable in respect of that tax, if the annuity had been paid regularly.

Mr. Knight and Mr. E. Montagu appeared in support of the exceptions, and Sir W. Horne and Mr. Lovat, contrà.

Devise-Will-Contingent Remainders -Vendor and Purchaser.

Devise to trustees and the survivor, his executors and administrators, in trust to let and apply the rents in payment of mortgages, until the whole debt should be paid off by the rents, and afterwards to the testator's eldest son for life; and after his decease, to such child or children as he should leave, lawful issue of his body, and their heirs, as tenants in common, and in default of such issue, to A. B. in fee :-Held, first, that the trustees took a chattel interest only:

Secondly, that the testator's eldest son and heir-at-law having, before the birth of any issue, conveyed the estate by lease and release to a trustee, in trust for himself in fee, had thereby destroyed the remainders over, and that he could make a valid title of the fee simple to a purchaser.

James Heardson, by his will duly executed, dated the 1st of September 1819, devised to William Smith and Thomas Maples, or the survivor of them, and the executors and administrators of such survivor, certain lands therein described, in trust for sale, and with the money to pay off all money due upon mortgage of any part of his real estates thereinafter mentioned, and in trust to pay the remainder to Sarah Heardson, his wife. The testator thereby gave and devised to the said Sarah Heardson for her life, if she continued his widow, all and every other his messuages, tenements, hereditaments, and premises whatsoever, subject to the payment of his sister Margaret King's annuity of 101. for life, thereinafter given, and also to 100%. yearly till the above mortgage debt, directed to be paid by the sale aforesaid, was discharged, in case the estate and effects therein before directed to be sold for that purpose should not thereto fully extend; and after the decease of his wife, or her intermarriage again after his decease, in case the said mortgage debt so directed to be discharged should not then have been fully paid off, the said testator gave and devised all such estate so devised to his wife, to the said William Smith and Thomas Maples, and the survivor of them, and the executors and administrators of such survivor, in trust to let the same for the best rent that could be obtained, and apply such rents for payment of the said mortgage debt, (should any part still remain,) until the whole should be fully paid off and discharged, by the gradual receipt of such rents and profits of his, the said testator's estate; and after the decease of his wife, or her intermarriage again after the said testator's decease, or the final liquidation and payment of his mortgage debts as aforesaid, as the case might happen, the testator gave and devised to his son, the plaintiff, John Guy Heardson, and his assigns for his life, subject to the payment of one-fourth part

of the said testator's said sister's annuity for life, the messuage or tenements, windmill, lands, and hereditaments, in the will particularly described (which were the subject of this suit); and after the decease of the plaintiff, the testator gave and devised the said messuage, tenements, windmill, lands, hereditaments and premises to such child or children as the said plaintiff should have, lawful issue of his body, and to their, his, or her heirs or assigns for ever, to take as tenants in common, if more than one; and in default of such issue, the testator gave and devised the said real estates to his sons, James, William, and Guy Heardson, their heirs and assigns for ever, as tenants in common.

At the decease of the testator, the real estate devised by his will was subject to two mortgages, only affecting part thereof, the one not comprising therein the messuages and hereditaments devised to the plaintiff, for securing the sum of 700l. and interest, and the other by a demise by indenture, bearing date the 7th day of May 1811, of part of the hereditaments so devised to the said plaintiff as aforesaid, for the term of 500 years, for securing the sum of 600l. and interest. Sarah Heardson, on the 4th of May 1822, paid the sum of 200l., in part satisfaction of the mortgage of 600l. William Smith and Thomas Maples, in the year 1825, sold and disposed of ten acres of pasture land, and with the money arising from the sale, amounting to 6801., and the sum of 201. paid by Sarah Heardson, paid off the mortgage of 7001. Margaret King, the annuitant, died in 1825, and Sarah Heardson died on the 27th of September 1831, without having been again married. After the decease of James Heardson, the testator, the yearly sum of 1007. in his will charged on the estate devised to Sarah Heardson, was not applied by her as in the will directed; but William Smith and Thomas Maples, in January 1832, sold the testator's house and premises in Surfleet, which had been specifically devised to them for sale, in the first clause of the testator's will, and with the money arising therefrom, and from the personal estate of Sarah Heardson, of whose will they also were executors, and with monies received for rents of the real estates of the said testator, they paid off the sum

of 400l., remaining due upon the mortgage of the 7th of May 1811, and all the mortgages became thus satisfied.

John Guy Heardson, the plaintiff, before he had any children, by indenture of lease and release, dated the 2nd and 3rd of February 1835, in consideration of 10s., granted, released, and confirmed to C. F. Bonner and his heirs, the estate and premises devised to him by his father's will, with the appurtenances, to hold the same unto the said C. F. Bonner, and his heirs, to the use of the said plaintiff, his heirs and assigns for

ever.

The testator's son, John Guy Heardson, who was his heir-at-law, contracted for the sale of this property to the defendant, who being dissatisfied with the title, this bill was filed by the vendor for the purpose of compelling a specific performance of the contract. By the vendor it was insisted, that under the trusts of the will, the trustees took a chattel interest only, subject to which there was a devise to the vendor for life, with a contingent remainder "to such child or children as he should leave lawful issue of his body:" and that, by the lease and release, the contingent remainders, and those subsequent, had been destroyed, and the fee simple vested absolutely in the vendor. The defendant's counsel admitted, that the remainders were contingent, and that a vendee could be compelled to take a title dependent on the destruction of contingent remainders Hawker v. Sutton (1).

Mr. Pemberton and Mr. Metcalfe, for the plaintiff.-The only question is, whether, under the will, the legal fee is in the heir of the testator, or in the trustees: for if it is in the trustees, it is sufficient to support the contingent remainders; but if the trustees took a chattel interest only, then the contingent remainders were destroyed by the lease and release, and the estate for life and the remainder in fee, which were in the vendor as heir-at-law, have collapsed, and given to him an estate in fee simple absolute. The trustees took only such estate as was necessary for the performance of the trusts reposed in them; and the decisions

(1) 2 Sim. & Stu. 513; and see Roake v. Kidd, 5 Ves. 646.

lay down, that they took the least estate necessary for the purpose.

[The MASTER OF THE ROLLS.-That is, they are trustees for a given purpose, and when that is satisfied, the trust ceases.]

Yes; if an estate is devised to executors for the payment of debts, they will take a chattel interest only. The case of Doe v. Simpson (2) was a devise to three trustees, and the survivor, and the executors and administrators of such survivor, in trust out of the rents to pay annuities for lives and the gross sum of 800l., and after payment thereof, to the testator's brother William for life, with remainders over, with power to the trustees and their executors to grant leases for any number of years; the Court held, that the trustees took an estate by implication for the lives of the annuitants, with a term of years in remainder, for the purpose of raising the sum of 800%., and that after these trusts were satisfied, the several subsequent limitations for life and in tail took effect as legal limitations. So Doev. Nicholls (3) was a devise of copyholds "to A, B, and C, in trust for my son, to be transferred to him as soon as he shall attain twenty-one years of age; but in case he should die before he attains twenty-one, then I give to my cousin W. P, his heirs and assigns, all my freehold and copyhold lands;" and it was held, that the trustees took an estate for years only, determinable on the son's attaining twenty-one; and Bailey, J. said, "It may be laid down as a general rule, that where an estate is devised to trustees for particular purposes, the legal estate is vested in them as long as the execution of the trust requires it, and no longer; and, therefore, as soon as the trusts are satisfied, it will vest in the person beneficially entitled to it." They also referred to Doe d. Keen v. Walbank (4).

doubtful title, and must, therefore, be clearly satisfied, that the title is good, beyond the possibility of any question. If the trustees took an estate in fee, the title is clearly bad, for their estate would support the remainders. In the first place, the purpose for which the estate was given, might have exhausted the whole estate, and rendered a fee necessary. Doe d. Keen v. Walbank was a devise to trustees, and their heirs and assigns, in trust, to permit a married woman to receive the rents for life, and, after her decease, to such of her children as she should appoint, with power to the trustees to demise the premises as should be consistent with their duty as trustees or otherwise it was held, that they took a fee. In Harton v. Harton (5), there was a devise to trustees and their heirs, in trust, to permit a feme covert to receive the rents for her separate use for life, and after her decease, to her first and other sons in tail: it was held, that the trustees took the fee. The Court will anxiously endeavour to give effect to the whole intention of the testator, and for that purpose will give to the trustees such an estate as will effectuate the intention of the testator.

[The MASTER OF THE ROLLS.-The limitation here is expressly to the trustees and their executors.

Such was the case in Gibson v. Lord Montford (6), but there it was said, “It has been often determined, that in devises to trustees, it is not necessary that the word 'heirs' should be inserted to carry the fee at law, for if the purposes of the trust cannot be satisfied without having a fee, courts of law will so construe it ;" and there the trustees were held by the Lord Chancellor to take a fee. The trustees are empowered to make leases without limiting the extent of the term, and it is necessary for them to have a reversion: now as the term to be granted is indefinite, their estate must also be indefinite; this circumstance was much relied on in Doe v. Willan (7).

Mr. Pemberton, in reply.-The devise was to the trustees for the purpose of paying off the mortgages, and not for preserv

(5) 7 Term Rep. 652. (6) 1 Ves. sen. 485. (7) 2 B. & Ald. 84.