1856. WRIGLEY บ. SYKES. me that the term of 500 years affords the necessary machinery for doing it; for if more than the proper proportion of the debts is paid out of the estate of one, and he is not recouped by the owners of the other estates, then there is a power created by which the trustees can enter, under the term of 500 years, in order to set right the inequality which had been created by a sale of a portion of the estates to pay debts not contemplated at the time of the division, and which ought to have been paid rateably by the five sons at the time the partition was made. I do not think, therefore, that the creation of this term, which has a distinct and specified object, supersedes the general charge for payment of debts; which, in my opinion, gives the executors a power of selling the estate for the payment of debts. And in that view of the case, I am of opinion that this is a valid contract. It is very true that the Court will not compel a person to take a doubtful title; but if the Court is of opinion, upon due consideration of the question of law, that the title is good, the Court is bound so to hold, and it cannot, in my opinion, decline to do so, because it is possible, that when the case arises between the parties, some other Court may come to an opposite or contrary conclusion; and therefore I am of opinion that I am right, in this case, in compelling the purchaser to take what, in my opinion, is not a doubtful title. I shall certainly secure to the purchaser, as far as it is competent for the Court to do so, a good legal estate when the conveyance is made; but as I am of opinion that the executors had power to enter into the contract, which is not disputed, and as, in my opinion, the title is good, I must decree a specific performance. GALE v. GALE. 1856. Jan. 28, 29. ΟΝ marriage set N his marriage, in 1841, Mr. Gale conveyed an Under his undivided share in a real estate to two trustees tlement, A. B. and their heirs, upon trust for himself and wife during had power to appoint the their respective lives, with remainder to the children of reversion in the marriage; and in default (which event occurred) fee of the settled estates, then as he should by deed or will appoint; and in and the trusdefault of appointment, to the children of Edmund tees had a Estcourt Wilkins Gale and of four other persons. trustees were empowered, with the consent of Mr. Mrs. Gale, to sell, and the purchase-money was to be laid out, with their consent, in the purchase of other freehold hereditaments in fee simple, to be settled to the same uses, and in the meanwhile it was to be invested, &c. There was no child of the marriage. The and power of sale with his consent. A. B., by his will, appointed it to trustees, to sell and stand possessed of the produce in trust for a class; and he gave all his real and personal estate "not therein before spe cifically disposed of" to the trustees, the estate; Mr. Gale, by his will, dated in 1846, appointed the estate, from and after the decease of Mrs. Gale and his widow. failure of issue of the marriage, to Wainwright and Subsequently, Norton in fee, upon trust to sell, and to stand possessed with 4. B.'s of the purchase-money upon trust for the children of consent, sold his brother Edmund E. W. Gale who should be living but, at his at his death. And the testator gave and devised to the death, the conPlaintiff (his widow), absolutely, all other his real and not been executed by one personal estate and effects, of what nature or kind of the truswhatsoever and wheresoever, to which he or any other tees, and the purchase veyance had person money had not been received. Held (notwithstanding the 1 Vict. c. 26, ss 19, 23), that, the gift to the class was inoperative, and that the purchase-money passed, under the residuary gift, to the widow. 1856. GALE v. GALE. person in trust for him should be entitled at the time of his death, not therein before specifically disposed of. In November, 1849, the trustees of the settlement, with the consent of Mr. and Mrs. Gale, contracted to sell the share of the estate for 1,300l. The conveyances were approved of in December, 1849, and, in August, 1850, were executed by Mr. and Mrs. Gale and by one only of the trustees. Mr. Gale died in September, 1850. In November following the conveyances were executed by the other trustee, and the purchase-money was thereupon paid and invested in consols. Under these circumstances, the Plaintiff, Mrs. Gale, contended, that the appointment made by the will to Wainwright and Norton was revoked, and that under the residuary devise in the will, she was entitled to the purchase-money. The Defendants, on the other hand, contended, that the Plaintiff was not so entitled, and in consequence of the dispute, the trustees refused to pay her any part of the stock, until the questions had been determined. Mr. Cairns, for the Plaintiff. The appointment made by the testator is inoperative, for the subsequent sale, with the consent of the tenants for life, destroyed the specific property affected by the appointment, and operated as an ademption. That the proceeds did not pass under the 1 Vict. c. 26, ss. 19, 23 (The Wills Act), was decided by Farrar v. Winterton (a), and Moor v. Raisbeck (b). See also In re The Manchester, &c. Railway Company (c). (a) 5 Beav. 1. (c) 19 Beav. 365. Mr. Mr. R. Palmer and Mr. Freeling, contrà. There has been an ademption, but the produce passes, as in default of appointment, to the persons ultimately entitled under the settlement, for the power cannot be considered as exercised in favour of the widow, inasmuch as a contrary intention is apparent on the face of the will (a), and the testator only gives her that which is not " thereinbefore specially disposed of." The appointment was inoperative, either as an appointment of the estate or of the purchase-money, and as the latter was, by the term of the settlement, to be reinvested on the same trusts as the lands sold, those trusts would, after the death of Mrs. Gale, prevail over the dispositions by the will. Mr. C. Hall, for the other trustee of the settlement. Mr. H. Sargant, for the appointees under the will. The 23rd section of the 1 Vict. c. 26, enacts, that no conveyance or other act subsequent to the execution of a will relating to any real or personal estate therein. comprised, except a revocation, "shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death." Here the testator had an interest in the estate at his death, for the purchase had not been completed and the purchase-money, which had not been paid, was a lien on the estate. It therefore passed by his will. The matter must be regarded as it existed at the time of the testator's death, for the 24th section provides, that, "every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately (a) 1 Vict. c. 26, s. 27. 1856. GALE v: GALE. 1856. GALE v. GALE. immediately before the death of the testator, unless a contrary intention shall appear by the will." Therefore this devise must be construed as if the testator had by his will, executed immediately before his death, said :--“I devise every interest in the property which I now possess." Here the purchase-money had not been received; it was subject to the widow's life estate, and liable to be reinvested, at any time, in fee simple lands. There is a distinction between the case where the absolute owner sells his estate after devising it, for then there is a conversion of his real estate, into personalty; but here the money retains the quality of land. Where a testator devises his estate to trustees to sell and pay the money to certain legatees, and he afterwards sells the estate himself (which, under the old law, is an ademption), the distinction would now seem to be this :—that if the money has not been received by the testator, it will pass to the legatees; because, notwithstanding the sale, the will operates on the interest in the estate which the testator has power to dispose of, viz., the purchasemoney, for which he has a lien on the estate (a); but, if the testator has received the money, the result is different. Here there is no gift of the land, but merely a devise to the trustee to sell; it is a gift of the proceeds, and these consols are the proceeds. Mr. Cairns, in reply. In the matter of Spooner's Trust (b), where a testatrix appointed a fund to A. and her other property to B., and A. predeceased her, it was held, that the fund subject to the power passed, and that, under the Wills Act, the residuary gift comprised not only all that was ineffectually attempted to be specially bequeathed, but all that was ineffectually attempted to be specially appointed. The (a) 1 Sugd. Vend. 10th ed. 304. (b) 2 Sim. N. S. 129. |