negotiations as to the 40007., leaving no doubt in mind, that if they had led to a satisfactory result feelings as to his wife's misconduct would have suppressed, and the second suit in the Divorce O would never have been heard of. But having f to come to terms with the man who was hindering return of his wife to that good conduct which he fessed to have so much at heart, he still clung t hope of obtaining the stipulated satisfaction in former dishonour, through his suit in Chancery it was ultimately determined against him. U these circumstances I cannot hesitate to believe the appellant, knowing that the intercourse bet his wife and Mr. Hume was going on, took no of it as long as it suited his purpose to forbear that he thereby connived at the adultery upon y his second petition was founded. Agreeing, then in the conclusion of the learned Judge Ord though differing with his reasons, I think the decree ought to be affirmed.

Note for reference-20 & 21 Vict. c. 85, s. 31.

COURT OF APPEAL IN CHANCERY

SPRING V. PRIDE.-April 27 and 28. Settlement-Reversion-Purchase by trustee By a marriage settlement, a husband covenanted, any real or personal estate should be given or descend or devolve, be bequeathed or come, k or to the husband in her right, he would e deeds as would be necessary for vesting upon certain trusts, including a power of q after the end of the coverture. The wife was time entitled to a reversion. Some time after the riage a new trustee of the settlement was appo on the same day the wife sold and appointed the sion to the old trustee :-Held, that the re included in the settlement, and that the sale a aside.

self entirely to the case before me, and say, that a husband who sells his right to obtain a separation from a guilty wife to the man who is the partner of her guilt, can never afterwards be heard to renew his application for a divorce on the ground of criminal intercourse with the same individual; which is not, strictly speaking, fresh adultery, but merely further evidence of the adultery which had been consummated when the bargain was made to purchase a disgraceful silence. But even if this general view of the character and effect of the compromise should be questionable, there appears to me to be ample evidence, in the circumstances of this case, to justify the dismissal of the petition, on the ground that the appellant was either accessory to, or that he connived at, the adultery of which he complains. I do not understand the word "accessory," in the act, in the legal sense of one who counsels or commands another to commit an offence, or who conceals the offender. But from the words "in any manner" coupled with it, it seems to be used in its popular sense of "aiding in producing, or contributing to produce, some effect." If this is a correct view of the meaning of the Legislature in the use of this word, I should feel no difficulty in holding, that a husband who sells to the adulterer his right to complain of his wife's adultery, and afterwards discards her, without providing her with any means of living, or taking any precaution to protect her against any future intercourse with the adulterer, must be considered as an accessory to the renewal of that intercourse, in the sense of contributing to produce the effect. But I think that, looking to all the circumstances connected with, and following upon, the compromise, there is strong evidence to warrant the conclusion, that the appellant connived at the subsequent adultery. After the arrangement of the former suit, the sole object of the appellant was to obtain the bond for 40007., the consideration for his relinquishing his right to obtain a divorce. For this purpose, after the suit was ended by a verdict by consent, which negatived the adultery, negotiations were carried on as to the allowance to be made to the appellant's wife, and as to the mode in which the 4000l. to be secured by the bond should be settled. In the course of these negotiations, the appellant certainly stipulated, that the proposed allowance to his wife should continue only during her good conduct. But as no such stiBy a settlement, dated the 20th May, 1852 pulation entered into the arrangement of the ori- on the marriage of the plaintiff Susan Pride, ginal suit, the learned Judge Ordinary seems to Spring, the intended husband, covenanted wit have been justified in the fear which he expressed, defendant James Pride, who was the plaintiff "that it was intended rather for the protection of the ther, that if at any time during the plaintiff's appellant's purse than as a security for his wife's fu- real or personal estate should be “given or ture good behaviour." Upon the disagreement of the descend or devolve, be bequeathed or come, parties as to the manner in which the 40007. should be plaintiff, or George Spring in her right, the settled, the appellant, in August, 1861, filed a bill George Spring would execute such deeds, &c. as against Mr. Hume for specific performance of his be necessary to convey and vest the same in such agreement to give the bond; to which bill there was ner as therein mentioned; and it was declares a demurrer. Pending the suit in Chancery, the appel- the trustee should stand possessed of the sett lant, in October, 1861, employed a detective to discover perty, upon trust to pay the dividends, annual where and in what manner his wife was living, and &c., into the proper hands of the plaintiff, or obtained information, which must have satisfied him person or persons as she should, notwithstanding that the intercourse between her and Mr. Hume still coverture, appoint, "to the intent that the sa continued. From the subsequent conduct of the ap- be and remain a separate, personal, and inalie pellant, it is not unfair to assume that this employ-provision for the plaintiff during the intended ment of the officer was not with a view of protecting ture, and might not be subject to the debts, on his wife against the continuance of Mr. Hume's fur- or engagements of Spring." And the settlement ther intercourse, but to obtain information which tained a further trust "to pay, assign, or othe might be used as the means of influencing the pending dispose of the same, from time to time, to such negotiations. For what was his conduct after this or persons, for such interests and purposes. discovery? Did he instantly reject the idea of re- such manner, as the plaintiff, notwithstanding ceiving the stipulated price of his previous dishonour, tended coverture, by deed or will should appoint

and break off at once all further communication with

the adulterer? Without the slightest remonstrance, or even allusion to the fact, he calmly continues the

The plaintiff Susan Pride, afterwards Susan& was, at the time of her marriage with the defe George Spring, entitled, under her father's will, tain property, subject to the life interest of ther Sarah Pride therein, and had no other pro

James Pride from time to time advanced sums of money to the plaintiff and her husbanda in August, 1858, one Baker proposed to the plain

that she should sell her reversionary interest to her
brother, the defendant Pride, who wished to buy it,
and she requested Baker to "intercede and make the
best bargain he could for her."

On the 11th January, 1859, an agreement was exeented by the plaintiff and her husband, to sell all her interest under her father's will for 9521., which sum was to consist of 8021., previously advanced as abovementioned, and of 1507. yet to be paid.

The plaintiff and the defendants then arranged that Pride should retire, and that Baker should be appointed to succeed as trustee of the settlement. The deed appointing Baker trustee, and the deed of conevance of the plaintiff's interest to Pride, were both ented on the 19th April, 1859, and the latter deed as duly acknowledged by the plaintiff.

The plaintiff had no independent legal advice. The Lplaintiff's mother was not in ill health in January, but medied on the 26th April, 1859.

reversed on appeal. The appointment of Baker as a new trustee, that he might sell to Pride, was a mere cobweb, which the Court would sweep away. There was no evidence that the plaintiff had had the slightest assistance, even from Baker. Her letter to him only shewed that she had been induced to believe that the property must needs be sold, and she then begged Baker to get her the best price he could. The decree would be: to set aside the sale, and the judgment on the warrant of attorney, with costs against the defendants Pride and Baker, to the hearing; direct an account of the plaintiff's share of the personal estate, and of rents and profits of the real estate, come to the hands of Pride; and an account of money advanced by Pride to the plaintiff, or by her sole direction: direct that the remainder expectant upon the coverture should be charged with what, upon balance of accounts, should be found due to Pride; reserve further consideration and subsequent costs.

From this decision the defendant Pride appealed. W. M. James and Whitbread, for the plaintiff. Rolt and Marten, for the appellant, contended— first, that the property was not intended to be comprised in the settlement, which only included afteracquired property. (Archer v. Kelly, 1 Drew. & S. 300; 6 Jur., N. S., 814; Otter v. Melville, 2 De G. & S. 257; 12 Jur. 845). Moreover, in this case there was no trust, but only a dry estate until the property came into possession; and if Pride had originally been a trustee, he had discharged himself at the time of the purchase. (Sutton v. Jones, 15 Ves. 587; Naylor v. Winch, 1 Sim. & S. 555). Mrs. Spring was of mature age, and under no pressure. She had a general power of appointment, and her creditors could come upon her.

A bill was filed by the plaintiff Susan Pride to have the sale set aside; and the suit came to a hearing beIfore Vice-Chancellor Wood, who, on the 17th February, delivered judgment, to the effect, that the only really arguable point was, whether the property was, or was mot, comprised in the settlement. If the property were IN CEN so comprised, it would be a monstrous proposition to gy, that a trustee was bound to protect the reveronary interest of his cestui que trust less than an interest in possession. It was also impossible that the trustee could be allowed to purchase a reversionary interest of his cestui que trust. He was in a situation of confidence, which caused the cestui que trust to look to him for assistance and support, but that became impossible when they dealt with each other for value. In this case a trustee, especially interposed to protect a married woman from her husband, had bought her reversionary interest to enable her to pay her husband's debts. There had never been any case which the principle on which the Court interfered could be more strongly applied. These remarks, how-being, as far as it goes, in accordance with the view ever, depended on the one arguable question, whether the property was comprised in the settlement or not. The recent case, Ex parte Blake (16 Beav. 463), seemed to cover the present case. It was, no doubt, a legitimate argument to say that the property ought to have been inserted by a special description; but, on the other hand, the defendant had himself admitted that his sister had married a common labourer, and that the settlement had been made to protect her. The word "devolve," and, still more, the words "come to," were sufficiently strong to include property of which the plaintiff would become possessed at the death of her mother. Next, as to the terms on which these deeds should be set aside. So far as the settlement extended the property would be protected, but when the protection of the settlement ceased, the plaintiff must make good to the defendant all money which had gone into her own pocket. It had been argued, that the settlement did not restrain anticipation, and that the word "inalienable" only meant "inalienable by the husband." There was no authority for such an interpretation which would, moreover, render the word "inalienable" superfluous; that sense of it being already covered by the words "separate provision." The property was made inalienable during a limited period-viz. during the coverture. The general power of disposition must be held to relate to the corpus, and to so much of the rents and profits as had not been already dealt with in the settlement-viz. rents that might accrue after the husband's death. In the case of Brown v. Bamford (11 Sim. 127; 1 Phill. 260), Vice-over the property, so as, in effect, to enable her to Chancellor Shadwell had adopted a very similar argument-viz. he had used a second limitation to overrule the first, but his judgment had in that case been

Sir J. L. KNIGHT BRUCE, L. J.-There are two or three points in this case-I do not say every pointbut there are two or three points on which, I think, we may without impropriety, and with convenience and advantage, now express our opinion, that opinion taken on the same points by the Vice-Chancellor. The marriage settlement of this unlucky lady is, no doubt, strangely and untechnically framed; but the question is, not whether it is agreeable to grammar and form, but what is the intention to be fairly and reasonably collected from the whole document. And so collecting the intention of the parties from it, so far as the intention can be collected from it, we see that this lady, at the time of the settlement, was entitled to reversionary property, real and personal, under the will of her father-reversionary, because her mother had a life interest in it. There is no evidence that she had any other property whatever, and we find in the settlement (among other words pointing, according to the strict interpretation and proper use of language, to a future will or future disposition) the words "devolve" and "come," which are words not inaccurately applicable to the falling into possession and enjoyment of a reversionary property then belonging to that person in expectancy; and I am of opinion that, according to the true interpretation of this instrument, it was meant to extend, and did extend, to her share of reversionary property, under her father's will, expectant upon her mother's life interest.

Then, pursuing the trusts of this very singular instrument, we find inalienability referred to in a certain way, but in company with such other words, and accompanied by such expressions as to render the argument not wholly unreasonable, that notwithstanding the word "inalienable," the lady was to have the absolute power

defeat the settlement, by giving the whole over to her husband. I think, however, that there is not enough in the settlement to defeat the plain meaning of the

In the first place, I think the reversionary property is included in the settlement. The words of the settlement are sufficient to embrace it under the words "devolve or come to." The object and purposes were to secure the property of this lady for the purposes of Railway company-Parliamentary deposit-Illegal c the settlement. I think we ought not to put a restricted construction upon these words, there being no evidence, and nothing which appears upon the face of the settlement which tends to indicate that any such

2

the time being:-Held, that the former part of the gift
being bad as a perpetuity, it invalidated the subsequent
bequest to the rector of B., inasmuch as the sum neces-
sary for carrying the first intention into effect was not
capable of being ascertained.

Motion for decree.-The Rev. W. Fowler, by his will, dated the 26th December, 1856, directed his executors and executrix " to invest and set apart the sum of 5001. sterling, in Government securities, in their own or such other name or names of fit persons, not being less than four altogether, upon the permanent trust of appropriating the income in or towards the maintenance in good order of the graves and gravestones, with the iron railing, now inclosing the graves Baldock churchyard, of my late dear wife, her parents, Mr. and Mrs. Merry, and her uncle, Mr. Trusram, and also the graves of my grandmother, Mary Fowler, of her father, Mr. Ellis, and her daughter, and then to pay the surplus of such yearly income to per the rector of Baldock for the time being for his own tsuse."

The will contained a bequest of the testator's reidnary estate.

The personal estate of the testator, not specifically parbequeathed, consisted, at the time of his death, partly of moneys invested in real securities, and partly of pure personalty.

This bill was filed by two of the residuary legatees for the purpose of ascertaining the rights and interests of the parties in the sum of 5007.

Spencer Perceval, for the plaintiffs, contended that the gift of income for maintaining the graves was void as a perpetuity. (Rickard v. Robson, 31 Beav. 244). And as the sum necessary for that purpose could not be ascertained with any degree of certainty, therefore, the gift of the surplus income also failed for uncerainty (Chapman v. Brown, 6 Ves. 404; The Attorney General v. Hincman, 2 J. & W. 270; Limbrey v. Gurr, Mad. 150; Cramp v. Playfoot, 4 Kay & J. 479); but if the sum for repairing the graves could be ascerained in chambers, then, as the legacy to the rector for the time being was a charity, and failed, so far, as would have to be paid out of the personalty

66

ney-General v. Hinxman (2 J. & W. 270), the trustees were to pay so much of the interest of the fund for the purposes of the first gift, which failed, as they might think necessary," and to pay "the residue, if any," to certain charitable objects. There, as it was optional with the trustees to apply the whole of the interest for the object of the first gift, the second gift was uncertain, and therefore failed. Limbrey v. Gurr (6 Mad. 152) proceeded upon the same principle. There Sir J. Leach, V. C., expressly stated that the inasmuch that by reason of the discretion left with subsequent gift failed by reason of its uncertainty, the executors, it was only capable of being ascertained by the actual execution of the prior purpose." Now, in this case the monuments were actually existing, and the expense of maintaining them could be readily ascertained. What was necessary for the purpose ought only to be expended; and there was no discretion given, as in the cases of The Attorney-General v. Hinman and Limbrey v. Gurr, to expend the whole of the income, but merely what was necessary for that purpose. ascertained by a reference, and the residue of the inThe amount necessary for this purpose could be easily dock for the time being. With regard to the costs, as come of the 500l. would belong to the rector of Balthe bill was filed by the residuary legatees for the purpose of increasing the residue, and settling a difficulty in the construction of the will, created by the testator himself, the residue ought to bear them.

June 24.-Sir J. ROMILLY, M. R.-The question in this case arises upon the bequest contained in the will of the testator, whereby he gives a legacy of 500l. for certain charitable purposes.

The difficulty is, that it is contended that the gift is altogether void; and the cases which have been cited establish this proposition-that if a sum of money be given, part of which is to be applied to purposes which cannot be ascertained, or which entirely fail, and the remainder is given to other purposes, the whole gift fails, by reason of the invalidity of the first portion of the gift. I confess that I never quite understood the exact principle upon which these cases in-proceeded. It is, however, quite established by Chapman v. Brown (6 Ves. 404). In that case, the testatrix ing or purchasing a chapel; and if any surplus should the residue of her money for the purpose of buildgave remain, it was to be applied to certain purposes which were legal. Sir W. Grant held, that the whole gift failed, as it was impossible to ascertain what amount was to be employed in the first-named object, which was void.

rested on real securities, the whole of the remainder
of the 5001, after deducting what so failed, might
well be expended on maintaining the tombs. The
costs of the suit ought to be paid out of the 5001.
T. A. Roberts, for the executors.

.D. Tudor, for the rector of Baldock, admitted, that after the decision of Rickard v. Robson (31 Beav. 244), he could not argue that the gift for maintaining the tombs was valid. But assuming this to be the tase, if the gift for the illegal purpose could be reduced to a certainty, the gift of the residue to charity, after deducting such sum when ascertained, was valid. In the case of Mitford v. Reynolds (1 Ph. 185, 706), Lord Lyndhurst went much further than the Court was now asked to do, in order to ascertain what was the sum given for an illegal purpose. The cases cited were divisible into two classes; first, where the second bequest was so connected with, and dependent upon, the former, that it must necessarily fail with it. The Second, where the first gift was not capable of being reduced to a certainty, so that it was impossible to ascertain what was the amount of the second bequest. In Chapman v. Brown (6 Ves. 404) it was evident, from Sir W. Grant's judgment, that if the kind of chapel, or the locality where it was to be erected, had been mentioned by the testator, he would have directed an inquiry what sum would have been sufficient to build the chapel, and would have held the second gift valid, after deducting the sum which it would have been necessary to expend for such purposes. In The Attor

This case was followed in The Attorney-General v. Hinxman (2 J. & W. 270) and Cramp v. Playfoot (4 Kay & J. 479). Although, as I have already stated, I cannot understand the principle of these cases, it is so well established by authority, that I must hold the gift of the overplus to be void, and not to take effect.

In opposition to these authorities, the case of Mitford v. Reynolds (16 Sim. 505; 1 Ph. 185, 706) was relied upon. In that case, the testator directed his executors to purchase a piece of ground upon which to erect a tomb; subject to which, he gave the residue of his property to the government of Bengal, to be applied to certain charitable purposes. A reference was directed to the Master to inquire what sum would reasonably be required to carry the first object of the testator into effect. The Master made his report, and found that a specific sum would be required; the report was rather vague, but Lord Lyndhurst held, that it should be acted upon, upon the ground that the necessary amount could be ascertained. But that case does not militate against the other cases that I have referred to; and Lord Lyndhurst so states in his judgment. Moreover, Lord Lyndhurst's judgment as to