1838. In the Matter of Wood.

ruary, the master invited either party to state to him any incorrectness in his report, before the return day of the warrant for signing the report. No objection was made; and the report was signed on the 16th of February.

I find then, that of the nine persons appointed by the master, and objected to by this petition, no objection to the respectability of any one is stated; and considering that I cannot admit an objection, under the circum- [*266] stances, resting solely upon the fact of some of them being members

of the corporation, and finding that there are seven or eight of those appointed who are not members of the corporation, and who will therefore be able to prevent any evil which might possibly arise from the alleged adverse claims to the property-but which evil I see no reason to apprehend-I do not find any ground upon which, following the principle upon which this court always acts in such cases, I can withhold my confirmation of the master's report; and as neither the respondents personally, nor the charity funds, ought to bear the expense of this petition, I cannot do otherwise than dismiss it with costs.

Sir C. Wetherell, Mr. Wigram, Mr. Romilly, and Mr. James Parker, appeared as counsel for the different parties.

In the Matter of ISAAC WOOD, a Lunatic. And in the Matter of the Act for the Abolition of Fines and Recoveries.

1833; February 24, 28.

Under the act 3 & 4 W. 4, c. 74, for the abolition of fines and recoveries, the Lord Chancellor is not the protector of the settlement in the place of a lunatic, when the lunatic is tenant in tail in possession.

Lord Chancellor is subject only to an

Semble, that where a lunatic has a particular estate, in respect of which the protector of the settlement, and has also the remainder or reversion in fee, intervening estate tail, his Lordship will not concur in any deed for barring the estate tail. ROBERT RANDES WOOD, by his will, dated the 11th of April, 1801, devised all his real estates, situate within the bail of Lincoln, and in the county of Lincoln, both freehold and copyhold, to his brother Isaac Wood, and the heirs of his body lawfully to be begotten: and for default of such issue, he devised the same as follows; viz., one moiety to his cousin Marga- [*267] ret, wife of Thomas Foster, and the heirs of her body lawfully to be begotten; and for default of such issue, unto his cousin Elizabeth Clark, wife of John Darcy Clark, and the heirs of her body lawfully begotten, or thereafter to be begotten; and in default of such issue, to his own right heirs for ever and the other moiety he devised to Elizabeth Clark, and the heirs of her body lawfully begotten, or thereafter to be begotten; and for default of such issue, to Margaret Foster, and the heirs of her body lawfully to be begotten; and, for default of such issue, to his own right heirs for ever: and the testator devised to William Pearson and William Hallifax their heirs, executors, administrators, and assigns, all his leasehold hereditaments situate in

1838. In the Matter of Wood.

Newport in the city of Lincoln, and in the fields adjoining thereto, then held by lease for three lives from the prebend of St. John's in Lincoln; and also all his leasehold hereditaments situate in the bail of Lincoln, and in the city of Lincoln, in trust for such person and persons, and for such estates and interests, and in such manner and form as thereinbefore expressed, limited, and declared concerning the before devised freehold real estate, or as near thereto as might be, and the nature of the several leasehold estates would admit of, to the end that the same might be held and enjoyed, and go along with the freehold estates, so long as might be, and the laws of England would permit.

The testator died in the year 1811, leaving Isaac Wood his heir at law and customary heir, and leaving Margaret Foster and Elizabeth Clark surviving him.

In the meantime, a commission of lunacy had issued against Isaac Wood; and by an inquisition, dated the 26th of January, 1801, he had been declared to be a person of unsound mind.

[*268]

*Margaret Foster died on the 2d of February, 1832, without having ever had any issue.

A petition was now presented by J. D. Clark and Elizabeth his wife, stating that the petitioner, Elizabeth Clark, was desirous, with the concurrence of her husband, to bar her estate tail in remainder, and to limit the estates to herself, in fee simple, in remainder, expectant on the decease and failure of issue of Isaac Wood; and praying that the Lord Chancellor, as the protector of the settlement under the act for the abolition of fines and recoveries, would consent to the barring of the estate tail in remainder of the petitioner Elizabeth Clark, with the concurrence of her husband, by such deed or deeds as might be considered necessary and proper to be executed, acknowledged, and enrolled, for the purpose of barring such entail, and the remainders over, and limiting the same estates to the petitioner, Elizabeth Clark, in remainder in fee.

An affidavit filed in support of the petition stated, that the lunatic was now of the age of age sixty-four years and upwards, and had never been married. Mr. Wigram and Mr. Younge, in support of the petition, stated, that it was not the desire of the petitioners to affect the lunatic's interests in any possible way; but merely to provide against the contingency of the petitioner, Elizabeth Clark's dying in the lifetime of the lunatic. (a) The petitioners were willing to adopt any mode of preserving all the rights of the lunatic

which the court might suggest. The only object was, to obtain the [*269] concurrence of the Lord Chancellor, as protector of *the settlement,

in an act in which there could be no doubt that the lunatic, if sane, would concur; and therefore this was just that sort of case in which the

(a) It was stated at the bar, that Mrs. Clark was older than the lunatic, and had no issue; and that the master had found that she was his heiress at law, if Clement Wood, who went to America many years ago, and had not since been heard of, were dead.

1836.--Whatford v. Moore.

legislature contemplated that his Lordship's jurisdiction might be beneficially exercised.

February 28.-The LORD CHANCELLOR :-This is an application to me as protector of a settlement. As the property is now settled, it is vested in the lunatic as tenant in tail, with an intermediate limitation to the petitioner, in tail, with the ultimate fee in the lunatic. I am asked, under the authority of the act of parliament, to consent to a deed having the effect of a recovery, the object of which is (in the event of the lunatic not recovering, and barring his estate tail and the remainders over) to give the fee to another person who states herself to be a near relation of the lunatic.

A fatal objection to this application is, that the case is not within the act of parliament at all. I am not protector of the settlement within the act of parliament. Upon a petition in The Matter of Blewitt, (a) Lord Brougham first, and afterwards Lord Lyndhurst, held that such a case was not within the act. If, however, I had the power which I am asked to exercise, it appears to me that I should not be justified in so dealing with the lunatic's property. He has the whole interest in the estate except the intermediate interest vested in the female petitioner; and if that should drop during his life, he will have the absolute interest.

If I had the discretion, I certainly should not exercise it; but I think I have not.

*WHATFORD V. Moore.(b)

[*270]

1836; November 16, 18. 1837; August 30.

A. being tenant for life, with remainder to his sons in tail, with remainder to his daughters in tail, and having only one daughter, who was under age, and about to be married, by a deed, executed on the occasion of the marriage, conveyed his life estate to trustees, upon trust, as to part, for the wife, during the joint lives of herself and her husband, for her separate use, with remainder upon trust for her husband; and as to the other part, upon trust for the husband, for the joint lives of himself and his wife, with remainder upon trust for the wife; and in case the husband and wife should both happen to die in his lifetime, and there should be any child or children of their two bodies at the death of the survivor of them, upon trust for all and every such child or children, in such shares and manner as the husband and wife should appoint, and, in default of appointment, equally; and in case there should be no such child or children of the husband by the wife, or there being such, all of them should happen to die in the lifetime of A., upon trust for such persons as the wife should appoint; and in default of appointment, for the survivor of husband and wife, and the heirs and assignees of such survivor, during the remainder of the life of A.

(a) 3 Mylne & Keen, 250.

(b) This case is reported on the hearing before the Vice-Chancellor, in 7 Sim. p. 574.; but, as the Lord Chancellor in his judgment adverts to a part of the principal deed, which is not stated in that report, it has become necessary to state it here; and, under these circumstances, it has been thought most convenient that a statement of all the facts, complete in itself, should appear in the present report.

1836. Whatford v. Moore.

It was by the same deed provided, that when the wife attained her full age, a recovery should be suffered, which should enure to the use of trustees during the life of A., upon the several trusts before mentioned ; and after his death, and for want of issue male of his body, as to part, to the use of trustees, in trust for the wife for life, for her separate use, with remainder to the use of the husband for life; and as to the other part, to the use of the husband for life; and in case his wife survived him, then, as to the whole of the property, to the use of the wife for life, with remainder to the use of trustees, during the several lives of husband and wife, to preserve contin. gent remainders, with remainder to trustees for 500 years thence next ensuing, with remainder to such son of the marriage as husband and wife should appoint, in tail, with remainder to the use of the first and other sons of the marriage, successively, in tail, with remainder to the use of the daughters of the marriage, as tenants in common in tail, with remainders over. It was de. clared, that the trustees of the 500 years term should stand possessed thereof in case the husband should happen to die, leaving issue by the wife, an eldest or only son, who should live to attain twenty-one, or die before and leave such issue, and one or more younger son and sons, and daughter and daughters, or daughter or daughters only of the marriage, upon trust, that the trustees should, after the several deaths of the husband and wife and the commencement of the term, but not before or sooner, unless the husband should by writing direct, but without prejudice to the estates and interests of the wife, raise, for the portion or portions of the daughter and daughters, and younger child and children of the marriage, there being then an elder or only son, or the heirs of the body of such son then living, the several sums next thereinafter mentioned, viz. if only one such younger child, 2000, if two, 3000l., and if three or more, 4000l., for the portions of such younger children, share and share alike, and to survive to the survivors and survivor of them, but so as such two surviving younger children should have no more raised than 30001, nor any one such surviving child any more than 20007; to be paid to daughters at the age of eighteen years or days of marriage, which should first happen, after the deaths of the husband and wife, otherwise within three months next after the death of the sur vivor of them; and to be paid to sons at twenty-one, or sooner, if the trustees should, after the several deaths of the husband and wife, in their discretion judge necessary.

There was issue of the marriage, one son and three daughters, all of whom survived both parents, except one daughter, who died in the lifetime of both, after she had attained eighteen and been married: Held, that such daughter did not become entitled to any portion.

ELIZABETH HARTNOLL, by her will, dated the 9th of August, 1733, devised

the capital messuage and manor of Cadeleigh to trustees, in trust, [271] *as to a moiety thereof, (except three tenemenís particularly mentioned,

for certain estates) to the use of John Hartnoll for life, with remainder to trustees to preserve contingent remainders, with remainder to his first and other sons in tail male, with remainder to his daughter and daughters in tail, with remainder over; and as to the other moiety, (except as before mentioned,) to Elizabeth Pierce for ninety-nine years, if she should so long live, with remainder to John Hartuoll for life, with remainder to trustees to preserve contingent remainders, with the like remainders over as of the other moiety.

By indentures of lease and release, dated the 13th and 14th of September, 1763, reciting (amongst other things) that a marriage had been agreed upon between John Russell Moore and Elizabeth Hartnoll, spinster, only child of John Hartnoll, it was witnessed that John Hartnoll granted and released to Richard Blundell and William Moore, their heirs and assigns, the manor of Cadeleigh, and all messuages, lands, and hereditaments belonging thereto, and the capital messuage, farm, and demesne lands of Cadeleigh, and the advowson of the rectory of Cadeleigh, and all the other hereditaments given to John Hartnoll, in possession, reversion, remainder, or expectancy, by the will of

1836.--Whatford v. Moore.

Elizabeth Hartnoll the testatrix; to hold to the use of John Hartnoll until the intended marriage (subject to the claim of Caleb Pierce, *and [*272] the said Elizabeth Pierce his wife, in a moiety of the same premises for the residue of the term of ninety-nine years, if she should so long live, under the will of Elizabeth Hartnoll the testatrix,) with remainder to the use of Blundell and W. Moore, their heirs and assigns, during the life of John Hartnoll, subject as aforesaid, upon trust, and to the intent that they might be seised thereof, and be thereby enabled to make such conveyances as should be necessary for carrying into execution a certain decree of the court of chancery, made in a specialty creditors' suit for administering the estate of Elizabeth Hartnoll; and subject as aforesaid, as to the messuage, farm, and demesne lands of Cadeleigh, upon trust that Blundell and W. Moore and their heirs, should, during the joint lives of John Hartnoll and Elizabeth his daughter, receive the rents, subject to the right of Elizabeth Pierce, and, after payment of a certain annual sum of 471. to one Darley for a certain time, pay such rents into the proper hands of Elizabeth Hartnoll, for so long time as she and John Russell Moore should jointly happen to live, for her separate use: but in case J. R. Moore should happen to survive Elizabeth Hartnoll, and John Hartnoll her father should be then living, upon trust for John Russell Moore during the joint natural lives of him and John Hartnoll: and as to the manor and residue. of the messuages and hereditaments before released, to the use of Blundell and Moore and their heirs, during the joint lives of Hartnoll and Darley, upon trust, to pay 417. 4s. per annum to Darley, and subject thereto, upon trust for J. R. Moore and his assigns, during the joint lives of him and John Hartnoll, subject to the right and claim of Elizabeth Pierce, and otherwise as aforesaid; and in case Elizabeth Hartnoll should happen to survive J. R. Moore, and John Hartnoll her father should be then living, upon trust for Elizabeth Hartnoll and her assigns, during the joint natural lives of her- [*273] self and her father and in case J. R. Moore and Elizabeth Hartnoll should both happen to die in the lifetime of John Hartnoll, and there should be any child or children of their two bodies at the death of the survivor of them upon trust and for the benefit of all and every such child and children, in such parts, shares, and proportions, and in such manner as J. R. Moore and Elizabeth Hartnoll should, by deed or writing, appoint; and in default of such appointment, upon trust for all and every such child and children, share and share alike, if more than one, and if but one, then solely for such only child: and in case there should be no such child or children of J. R. Moore by Elizabeth Hartnoll, or there being such, all of them should happen to die in the lifetime of John Hartnoll, upon trust for such persons as Elizabeth Hartnoll should, notwithstanding her coverture, by will, appoint; and for want of such appointment, upon trust for the survivor of J. R. Moore and Elizabeth Hartnoll, and the heirs and assigns of such survivor, during the then remainder of the estate and interest thereby granted for the natural life of John Hartnoll.

It was further witnessed that it was declared and agreed between John