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Davenport v. Coltman.

the heirs of Sarah Marriott and Mary Walker living at their deaths; and, as those heirs had died in the lifetime of Thomas Coltman, the testator, the purpose for which the estates were directed to be sold had failed, and, therefore, the estates retained their original quality; and that quality was not altered by the contract which George Coltman, the father, had entered into for the sale of part of the estates; inasmuch as he had entered into that contract under the impression, which afterwards proved to be erroneous, that the objects of the trusts declared by his brother's will, were in existence, and with a view solely to the performance of those trusts; and consequently that the proceeds of that part of the estates which had been sold, as well as the parts remaining unsold, were to be considered as part of the real estate of George Coltman, the father; and Thomas Coltman, his son and heir, was entitled to the income of them during the life of Mary Coltman, the widow of George Coltman, *the [*612] father: that the law applicable to the present case, was correctly laid down, by Sir John Leach, V. C., in Smith v. Claxton :(a) "Where a devisor directs his land to be sold and the produce divided between A. and B., the obvious purpose of the tes. tator is that there shall be a sale for the convenience of division; and A. and B. take their several interests as money and not land. But, in the case put, let it be supposed that A. and B. both die in the lifetime of the devisor, and the whole interest in the land descends to the heir, the question would then be whether the devisor can be considered as having expressed any purpose of sale applicable to that event, so as to give the interest of the heir the quality of money. The obvious purpose of the devisor being that there should be a sale for the convenience of division between the devisees, that purpose could have no application to a case in which the devisees wholly failed, and the heir would, therefore, take the whole interest as land."

Mr. Koe, for Francis George Newbold, the son and heir of Mary Newbold, also contended that the estates in question de

(a) 4 Madd. 484; see 492.

Davenport v. Coltman.

scended to George Coltman, the father, as real estate, and passed, as such, by his will, to his two daughters, subject to the right of Thomas Coltman, his son and heir, to receive the rents during the life of Mary Coltman, the widow.

Mr. Parker and Mr. Mylne, for Mary Coltman, the widow, insisted that the whole of the estates was converted, out and out, into personalty by the will of Thomas Coltman, or, at all events, that such parts of them as had been sold by George Coltman, the father, were, thereby, so converted, and formed part [*613] of his personal *estate to which Mary Coltman was entitled for her life.

Mr. K. Parker, Mr. Lonsdale and Mr. Briggs appeared for the other parties.

THE VICE-CHANCELLOR:-The principal question is whether, in the events that happened, the estates in Little Hale, Great Hale and Puttenham, were, upon the death of Thomas Coltman, to be taken as the real estate of George or not.

I am not aware that Sir John Leach's decision in Smith v. Claxton has ever been reversed; and, in my opinion, there is the strongest ground for upholding it.

If the estates in question ceased to bear the character of real estates, it can only be because there was a subsisting, (that is to say) an enforcible trust for sale. Suppose that, upon the death of Thomas Coltman, this state of things had happened, namely, that the two co-trustees had filed their bill against George, and had said: "Here is a trust for sale, and the estate shall be sold to answer the purposes of the will:" would not the court, first of all, have said: "Let us see if there is any ground for selling the estates; let us inquire, in the first instance, whether any heir of Elizabeth Walker is in existence, and if not, whether the heirs of the two other ladies, or the heir of either of them is in existence:" and, suppose that it had turned out, satisfactorily, on

Davenport v. Coltman.

the Master's report, that there was no person to whom, by any possibility, a payment could be made of the moneys to arise from the sale of the three estates: would the court have directed them to be sold? It is perfectly evident to me that there was no other object whatever in directing the estates to be sold, except for the purpose of dividing the produce amongst those persons, with respect *to whom it was most pro- [*614] bable that there would be more than one, although it

was possible that there might be only one. Then, if there was no enforcible trust for sale, as in that case there could not be, this case is precisely the same as if the testator had suffered his estates to descend, except only that the law would consider the legal estate to be vested in those persons to whom it is given in express words. The consequence of which would be, that the heir-at-law of the testator and his two co-devisees would, in a court of equity, be held to be trustees for the heir-at-law.

Then, with respect to any dealing with the estates which took place after the death of the testator, I mean that sale which took effect by virtue of the contract entered into in November, 1827, I am of opinion that it ought to be considered as not at all interfering with the right of George or of those who claim under him in his character of heir-at-law. I have not seen the particular contract; but it is quite plain that there was a sort of family notion that there was a trust to be executed: and the contract was not made with George alone, but with him and his two sons, one of whom was an infant at the time; and the very fact that any other person was joined with George in that contract, goes to show that it was a contract made, not because George was dealing with that which he considered to be his own real estate, but because he apprehended that he was under an obligation to perform a trust.

If the parties wish that matter to be fully inquired into, I will direct it to be inquired into; but if not, I shall declare that all the estates were the real estate of George, and are to be taken, as such, by the parties who claim under him.

Brown v. Bamford.-Morrice v. Langham.

[*615]

1842: 27th May.

*BROWN v. BAMFORD.

THIS case, which was heard on this day, is reported ante, vol. xi. page 127. An appeal, from the Vice-Chancellor's decision, to the Lord Chancellor, has been argued; but his Lordship has not yet delivered his judgment.(a)

MORRICE v. LANGHAM.

The decree in this cause (which is reported ante, vol. xi. page 260) was, as the Reporter has been informed by one of the counsel engaged in the appeal, affirmed, in substance, by the House of Lords on the 5th of September, 1844: the appeal having been dismissed with costs, so far as the rents of the copy hold estates were concerned; and having been reversed, so far as the rents of the freeholds were concerned, on the ground only that it was irregular in giving relief between co-defendants.

(a) See Moore v. Moore, and Baggett v. Meux, reported by Mr. Collyer, vol. i. page

54 and 138.

Duncen v. Campbell.

*DUNCAN v. CAMPBELL.

[*616]

Husband and Wife.-Construction.-Deed.-Settlement.

1842 27th May and 6th June.

Mrs. D. being entitled to 3,000l. in reversion expectant on her aunt's death, the aunt consented, at the request of Mr. and Mrs. D., to relinquish her life interest in 2,000, part of the 3,000, in consideration of Mr. D. agreeing that the remainder of the 3,000, when payable, should be paid to trustees for his wife's separate use, and that he would, immediately, settle 2,000l. out of his own funds, and also the first-mentioned 2,000%., so as to provide for the maintenance of himself and nis wife, and the survivor of them. The agreement was carried into effect by a deed which directed the trustees to pay the interest of the two sums of 2,000 to Mr. and Mrs. D. during their joint lives, and to stand possessed of the principal for the survivor of them. Mr. D. afterwards separated from his wife in consequence of her having committed adultery. Held that he was entitled to receive the whole of the interest of the trust fund; and was not bound to maintain his wife out of it, notwithstanding she was destitute of the means of support.

Scotch Deed.-Foreign Deed.-Construction.

A deed in the Scotch form, made between parties, some of whom were domiciled in Scotland, and the others in England, construed, partly according to the law of Scotland, and partly according to the law of England; that is to say, so far as it concerned the Scotch parties, according to the Scotch law, and so far as it concerned the English parties, according to the English law.

THE bill stated that Margaret Campbell, formerly of Culreath, in Scotland, spinster, deceased, and her sister, Marion Campbell, of the same place, spinster, deceased, mutually and reciprocally executed two trust-deeds or settlements, dated respectively the 31st of March, 1828, by one of which, reserving a life interest in themselves and the survivor of them therein, they gave and disposed of all their lands and heritages, heritable bonds, heritable debts, and, in general, their whole heritable means and estate, to certain trustees, upon trust, among other things, to raise and pay to the defendant, Helen Hodges or Duncan, (their niece and the wife of the plaintiff,) the sum of 3,000l. at the first term of Whitsunday or Martinmas that should happen six months after the death of the survivor of them the said Margaret Campbell and Marion Campbell, with interest there

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