and, subject thereto, in trust for John Stein for life, with remainder to his daughter for life, with remainder to her issue, &c. &c.

The daughter did not execute the deed, but she acted on and adopted it.

On the 7th of August, 1847, by deed poll, indorsed on the deed of 1854, John Stein declared, that if he should pay the 5,000l. (which the deed recited it was his intention soon to do out of his own money), the same sum should remain charged upon the estate for his benefit, as part of his personal estate. John Stein paid off the charge, and by articles of agreement, dated the 29th of November, 1847, and made between the legal personal representative of Ann Stein, John Stein, and the trustees, after reciting the payment of the 5,000l., it was witnessed and declared, that the trustees should stand seised of the estate, in trust, to secure the 5,000l. to John Stein, as part of his personal

estate.

She

After these transactions, Miss Stein married. had been brought up by, and usually lived with, her maternal grandmother; and in 1852, being engaged to be married to William Maskell, she and her intended husband both wrote to the settlor, to ask his consent, the latter also communicating to him his pecuniary circumstances, and the terms of the settlement he intended to make. Miss Stein received a letter from her father in reply, which he desired her to shew to W. Maskell, and in which (as was alleged) he stated, that he left her at full freedom with regard to the marriage, but that he should neither give his assent or dissent thereto, and desired her not to trouble him further in the matter; that he was not able to do more

for

for her than he had done, and could give her no money on her proposed marriage, and he added, "I have settled my Wraxall estate upon you, worth I suppose 40,000l." The marriage took place on the 7th of September, 1852. The letter was not produced, and Mr. and Mrs. Maskell stated, that, as the marriage was not cordially approved of by her father, they shortly after his death, not wishing, as they alleged, to preserve any remembrance of what they considered an expression of cool or indifferent feeling on his part, burnt or destroyed all their correspondence with him, and particularly this letter.

John Stein made his will, dated in December, 1853, and which contained the following clause:-"I have, by deed, settled my Wraxall estate on my daughter and her issue." And he then declared, that he did not intend her to take any part of his estate, because he thought she was amply provided for. He gave to his nephew James Stein the residue of his real and personal estate, and appointed Jameson and Haig his

executors.

The testator died in January, 1854, and a question arose as to whether the 5,000l. so charged upon the Wraxall estate, and subsequently paid off by the testator, formed part of his personal estate.

Mr. and Mrs. Maskell contended, that the testator had no power to charge the estate with the 5,000Z., after the debt of 5,000l. had been paid off. On the other hand, James Stein claimed the 5,000l. with interest, as a subsisting and valid charge, and as part of the testator's residuary personal estate.

Mr. R. Palmer and Mr. Nalder, for the Plaintiffs, stated the case.

1855.

JAMESON

v.

STEIN.

Mr.

Mr. Roupell and Mr. T. H. Terrell, for James Stein, the residuary legatee. First, there is no sufficient proof of the alleged representation by the father, or that the marriage took place on the faith of it. Even as it is stated, there was no promise on his part to do anything for his daughter; on the contrary, he says, "he will do no more, and will give her no more money." He made no fraudulent misrepresentation. He merely states that the estate was settled, and that was true. The contents of the deed might have been ascertained, and the parties had therefore constructive notice of its

contents.

Secondly, the 5,000l. now forms part of the testator's personal estate. All that was settled was the estate minus the charge, and in Vandeleur v. Vandeleur (a), it was held, that when the owner of an estate settles it, subject to debts of his own creation, his personal estate is exonerated. The debt, though discharged, was kept alive by express declaration, and it is unnecessary to refer to the numerous cases, in which it has been held, that a charge paid off by a tenant for life does not merge in the inheritance, but that he is entitled to it for his own. benefit (b).

The MASTER of the ROLLS.-I think that unnecessary.

Mr. Lloyd and Mr. Fleming, for Mr. and Mrs. Maskell. First, it is clearly proved, that, on the marriage of his daughter, the testator made representations, which formed

(a) 3 Clark & Fin. 82; 9 Bli. (N. S.) 157; Lloyd & G. (temp. Sugden) 241, n.

(b) See Burrell v. The Earl of Egremont, 7 Beav. 205; Forbes

v. Moffatt, 18 Ves. 384; Drinkwater v. Combe, 2 Sim. & Stu. 340; Trevor v. Trevor, 2 Myl. & K. 675.

formed the foundation on which the marriage took place, and on the faith of which the intended husband acted. He represented that he had settled the Wraxall estate, worth 40,000l. a year, whereas he had only settled a portion of it, and its value was considerably less. In such cases, the Court has always held, that the father is bound by his representations, and must make them good; Hammersley v. De Biel (a); Money v. Jorden (b); Bold v. Hutchinson (c). In Berrisford v. Milward (d), the mortgagee was present while a mortgagor was in treaty for his son's marriage, and fraudulently concealed his mortgage on the estate then settled. He was postponed to the objects of the marriage settle

ment.

Secondly, the 5,000l. was the debt of John Stein himself, for which he and his personal estate were primarily liable. The deed of 1844 merely created a security for it, and his personal estate still remained the primary fund for its payment. When the debt was paid off by the debtor, the charge fell with it, and could not be kept alive. There could be no charge where

there was no debt. Vandeleur v. Vandeleur is inapplicable to this case, for there the debt, in question on the appeal, remained unpaid, and it was expressly "declared and agreed, by and between the parties," that the estate should be primarily charged. If the 5,000l. had not been paid at the death of John Stein, his personal estate would be the first fund to resort to for its payment. The charge therefore is merged in the estate, for the benefit of the parties entitled thereto; Johnson v. Webster (e). In confirmation of this, it is

1855.

JAMESON

บ.

STEIN.

1855.

JAMESON

v.

STEIN.

to be observed, that, on that assumption, the statement of John Stein, on his daughter's marriage, was strictly true; but if not, there was a fraud committed on the husband by the misrepresentation. The Court would lean to the former assumption, rather than impute a wilful misrepresentation.

Mr. Borrett, for other parties.

The MASTER of the ROLLS.

There are two distinct and separate questions in this case; one, upon the promise alleged to have been made by the testator on the marriage of his daughter; the other, upon the construction of the deed.

No person has felt more strongly than I have done the necessity of enforcing the equity, which I hold to be founded on one of the most valuable principles which this Court administers, of compelling a man to make good his words; and that, if a person says something or does something which is equivalent to it, in order to induce another to do a particular act, he shall be held, at the instance of those who have acted on the faith of those representations, bound to make good that which he has said or induced them to believe. But the difficulty I have in this case is this:-the representation made by the testator was in a letter written to his daughter, and the burden of proof lies on Mrs. Maskell to shew the contents of this letter. Now, it is a very different thing to produce the letter itself and to give parol evidence of its contents, for a very slight variation in expression would make a very considerable difference in its effect. What had occurred was this:the testator had settled his Wraxall estate on his

daughter