Mr. Amphlett and Mr. Blackmore, for the plaintiff, one of the younger sons of the testator, and his son-in-law, and Mr. O. Hawkins, in the same interest, contended that the testator must be treated as having purchased the fee for the benefit of the trust, and the charges on the leasehold interest became a charge on the fee Randall v, Russell, 3 Mer. 190; Evans v. Walshe, 2 Sch. & Lef. Postlethwaite v. Lewthwaite, 31 Law Milsington v. Mulgrave, 3 Mad, Lock v. Lock, 2 Ver. 666; At any rate, the testator was entitled to a lien on the estate for the purchase money, and the defendant, Thomas Trumper, would be put to his election and could not take the testator's interest in the fee, without allowing the charges the testator professed to bequeath. Mr. Kay and Mr. Cookson, contra, cited, in addition to the cases above Hardman v. Johnson, 3 Mer. 347; Moris v. Le Neve, 3 Atk. 27. Mr. Villiers, for the holders of the mortgage of 4,500. Mr. Amphlett replied. BACON, V.C., after stating the facts, said-On the part of the defendant, Thomas Trumper, it was suggested as being open to doubt whether the renewal of the original lease enured to the benefit of the persons entitled to the charge, but this objection was not strongly insisted on, and if it had been, it would not, in my opinion, have been sustained. It was, however, argued that the testator, by the purchase made by him from the Duke of the reversion in fee, had prevented the charges from attaching on that interest. And it was this that raised the more serious difficulty. For it was said, and, as I believe, correctly, that no case is to be found in which the point has been distinctly determined. I think, however, that upon the general principles applicable in a Court of Equity to such circumstances, there ought to be no doubt, and that there could be no danger in holding that a trustee or a person in any degree in a fiduciary position who had acquired the legal possession of and dominion over an estate subject to a covenant for perpetual renewal, and who so dealt with the property as to make the renewal impossible by his own act, and for his own benefit, would be bound to give full effect to the charges out of the acquired estate so far as might be necessary. And the cases which have been referred to, although they do not decide, go far to confirm this impression. For it was decided in Evans v. Walsh (ubi supra), that one who covenanted with his lessee to renew upon certain terms could not refuse specifically to perform his covenant, although he had been since obliged to accept from his superior lessors a renewed lease upon terms much more onerous than those by which he was bound when he had entered into the contract with his lessee, unless he was content to give up the benefit of the more recent contract which he had made with his lessors, and to allow his lessee to stand in his place, at decision which could not have been arrived at unless Lord Redesdale had been satisfied that an equitable principle extended itself to the new interest which had been acquired. And so in Randall v. Russell (ubi supra), which was cited in the argument, where a testator who held lands under a college as tenant from year to year, gave them to his widow during her widowhood, and she obtained a lease from the college, and afterwards purchased the reversion in fee from a person to whom the college had sold, it was held that the lease so obtained by her was subject to the trusts of the will, but that the reversion was not so subject, because it had been obtained from a person who was under no obligation to renew, and between whom and the testator's estate there was no privity or connection. Sir W. Grant there said if she had purchased from the college it might be said that she thereby intercepted and cut off the chance of further renewals, and consequently made use of her situation to prejudice the interests of those who stood behind her, and there might be some sort of equity in their claim to have the reversion considered as a substitution for those interests, although, he adds, “I am not aware of any decision to that effect." Hardman_v. Johnson (ubi supra), in the same vol., page 347, is similar in its circumstances, and the decision is to the like effect. The renewed lease obtained by a devisee was held to be subject to the trusts of the will, but the purchase of the reversion by a stranger to the will was not therefore affected by the trusts, but this decision was not made without the expression of a strong inclination on the part of the judge to bring the case within the principle applicable to renewable. leases, and with a clear sense of the danger of allowing "the trustee of a term to resort to the owner of a reversion to become a purchaser for his own benefit, for by that means he would debar his cestui que trust of the fair chance of renewal, getting into his own hands the power to grant a renewal or not at his option." Having, however, further considered the case, and on a subsequent day, the Master of the Rolls decided that the devisee was entitled to the benefit of the renewed lease, but not to the benefit of the purchase made by the defendant of the reversion. In the more recent case of Postlethwaite v. Lewthwaite (ubi supra), the principle of Evans v. Walsh (ubi supra) is adopted, the Lord Chancellor, after quoting Lord Redesdale's words, saying, แ This is tantamount to considering a purchasing lessee very much in the position of a partner or fiduciary with respect to his sub-lessee." With these guides I think there can be no doubt of the existence of the equitable principle I have referred to. The dangers which would attend the exclusion of such a principle are so numerous and so serious that they would go near to destroy the fixed rules by which the dealings of persons in a fiduciary position with respect to trust estates and interests are governed. It is therefore to be considered whether the principle is applicable to the present cases. The circumstances attending the renewal of the 11th of May, 1818, are not in evidence, except so far as they may be properly gathered from the instrument itself. [The Vice-Chancellor here stated the facts connected with the granting a fresh lease to the testator, and continued.] I take it to be clear that whatever the rights of William Walwyn Trumper to compel the perpetual renewal may have been, they remained wholly unprejudiced by the acceptance of this lease. Whether it was for the purpose of concluding all questions that might arise, or for whatsoever other reason, it seems that William Walwyn Trumper, the trustee, as he was, of this renewed lease, whose duty had been to have procured the renewal of the lease within twelve months, from August, 1814, and who, within that period, had taken the conveyance from Beavan, and who, as is recited, had, "upon the dropping of the several lives respectively," applied for the renewal, and who had accepted the renewed lease with the proviso mentioned, thought it expedient to buy up the reversion in fee which was conveyed to him in January, 1819. It seems to me impossible to refer what was thus done by William Walwyn Trumper to any intention on his part to acquire the fee that he might defeat the charges upon the leasehold which had been perpetually renewable, and which he insisted was still subject to such right of renewal. On the contrary, the only intention which can be properly imputed to him seems to be that knowing that if he failed in his controversy with the Duke, and if the renewal was not compellable as of right, a question would remain which would only be determined at some remote period, and as that ques tion, if it should be decided against him, might expose him to personal liability, pursued the prudent course of at once extinguishing all doubt upon the subject, but as he was able to do this only by means of the interest which he had under the original settlement of 1805, and the subsequent deeds, and by his connection with and knowledge of all the interests in the property, and in that fiduciary position which he had assumed he could not and did not, in my opinion, by that pur chase affect or prejudice in any manner the charges in existence; but, on the contrary, having made the renewal impossible, he must be taken to have meant to substitute, and did effectually substitute, the fee so acquired, to the extent of the charges, for that right of renewal which he had rendered impracticable. And therefore the sums of 1,500l. and 2,000l. became as well charged upon the reversion in fee, of which he disposed by his will, as they were originally charged upon the then existing lease. It is also contended by the defendant that, having regard to the deed of 1815, the charges amounting to 1,500l. must be held to have been paid at that time, and therefore that no part of it is now raisable. Under what circumstances and for what purpose that deed was executed is nowhere explained, but it is clear that it does not appear to have been acted upon: there is no reference to it in any of the instruments subsequently executed, and it was found in repositories of William Walwyn Trumper after his death. If the fact had been simply that William Walwyn Trumper, the tenant for life, under the deed of 1805, had paid off the charges, the legal presumption would have been that he intended to keep them alive for his own benefit. When to this presumption it is added that no fact or circumstance is stated on the part of the defendant tending to retract that presumption, and that on the other hand there is clear evidence that it was the intention of William Walwyn Trumper at all times, and that at no time was that intention more distinctly or emphatically stated than by the provisions of his will, I think there is no ground whatever for the contention which the defendant, Thomas Trumper, has raised, that it must be assumed to have been the testator's intention, in paying off the charges, to benefit the defendant, or whoever else might become entitled to the estate originally charged. It It remains then only to consider the effect of the will which was dated in 1856. The testator died in 1859. Soon after his death, disputes arose between the defendant, Thomas Trumper, and the persons claiming the benefit of the charges. The defendant disputed, as he still disputes, the liability of the estate which he takes under the settlement and under the will, to any of those charges. A correspondence took place between his solicitor and the solicitor of the plaintiffs on this subject, to which I do not refer particularly, because such mention as is therein made of the charges is expressed to have been made without prejudice, but it is a circumstance not to be overlooked, that notwithstanding he did dispute the plaintiffs' claim, he did continue to pay the interest on the charges for more than two years. Some points were raised in the course of the discussion, on which, in the view I take of the case, it is unnecessary to rest my decision; but which, since they were raised, I will not pass without notice. It was said for the plaintiffs, that even if they were unable to sustain their primary contention, a case of election arose against the defendant, for that the testator, considering that he had power to dispose of the sums charged, had so disposed of them, and that if the defendant was right in saying that they were extinguished, he could not avail himself of the devises made by the testator in his favour, without giving effect to the testator's intention; and I think this is clearly so. It was further contended that if the claim of the plaintiff's should be held only to extend to the existing lease, the mortgagees, whose security comprehended the reversion, ought to resort to that estate in the first instance, so as to leave as much as possible of the value of the leasehold for the purpose of satisfaction, and this would, I think, be consistent with the well-established principles upon which this Court directs the marshalling of securities, so as to preserve the rights of and do full justice between parties interested. However, for the reasons I have stated, I am of opinion that, without further regard to the points lastly mentioned, the plaintiffs are entitled as against the defendant, Thomas Trumper, to the relief they have prayed. It must be declared that the three sums of 1,500l., 2,000l., and 5001., are charged upon the Grosvenor estate, of which the defendant, Thomas Trumper, is the owner; that 6001. and 500, part of the two first mentioned sums, are so charged in priority to the mortgage debt of 4,5001. Such accounts must be taken as may be requisite for ascertaining the amount due in respect of these charges for principal and interest from the 23rd of June, 1869, and that amount must be paid by the defendant, Thomas Trumper, or must be raised out of the estate. Solicitors-Mr. T. Fortune, agent for Mr. W. J. Humfrys, Hereford, for plaintiff; Messrs. Bridges, Sawtell & Co., agents for Mr. Price, Abergavenny, and Mr. Raw, for defendants. BACON, V.C. 1872. March 15, 16. Will Construction HICKS v. ROSS. Annuity-Perpetual or for Life-Gift unlimited in Time out of Proceeds of a certain Estate. Testator devised and bequeathed to trustees all his property "for the following uses, intents and purposes." He then “ left" to his wife 561. per annum, payable quarterly. He bequeathed another annuity expressly limited to the annuitant "during her life." He left 8001. per annum out of the proceeds of an East Indian estate to be appropriated to the maintenance and education of the eight children of his daughter I. H., provided they should change the name of H. for R. under forfeiture of the 8001. per annum if they declined to do so. The testator bequeathed any increased profit beyond 800l. per annum to I. H. and his brother, C. R., as therein mentioned. If any of the children should die their mother was to have the benefit of the deceased child's share. Power was given to the trustees to sell the East Indian estate in case of the insufficiency of the profits thereof to pay the annuities, the proceeds to be invested for the benefit of the children. Should the profits from the working or sale of the estate not reach 8001. annually, the trustees were to charge the residue of testator's property to make up the annual sum of 8001. Any surplus proceeds were to be invested for the benefit of I. H. up to a certain amount. The testator appointed his brother C. R. his residuary legatee:-Held, that the annuity to the testator's widow was for her life only; the annuity to his grandchildren was perpetual. This was the further consideration of an administration suit. The testator, Thomas Ross, made his will, dated in August, 1868, giving to his executors and trustees all my property of every description, whether freehold, leasehold, or any other description whatever, for the following uses and intents and purposes, namely, "I leave the sum of 561. per annum, to be paid quarterly to my wife, Harriett Ross. I leave and bequeath to Ann Lloyd, late of Kilradock House, the sum of 501. per annum during her life.".. "To my three dogs I bequeath the sum of 201. per annum during their lives, the said sum to be reduced as they drop off, and I also bequeath the sum of 301. each per annum to each of my trustees during their trusteeship"... "I also leave the sum of 8001. per annum out of the proceeds of the profit of my East Indian estate to be appropriated by my trustees to the maintenance and education of the eight children now alive of Mrs. Isabella Hicks".. " provided the said children shall exchange the name of Hicks for that of Ross, under forfeiture of the said 8001. per annum should they decline to do so.' "If there shall be an increased profit to 8007. per annum, one half part of such increased profit shall be given to my daughter, Isabella Hicks, and the other half to my said brother Christian Jacob Ross, and the said sums of 8001. and the increased profit shall be paid to my said daughter, Isabella Hicks, to her receipt only, and free from the control of any other person or persons whatever. If any of the said children shall die the mother shall have the benefit of the deceased child or children's share or shares. The trustees shall have the power, should any of the said children get into debt, to forfeit their share or shares, and divide it with the other children. The trustees shall have the power to sell the said East Indian estate should the profits of the working not be sufficient to pay the an nuities to the children of Mrs. Hicks. The proceeds of the sale of the said estate shall be invested in Victoria Bonds or shares in the names of the said trustees, for the benefit of the said children. Should the profits not reach 8001. an nually from the working of the estate, or the sale of the estate, then the trustees shall charge the residue of my property to make up the said annual sum of 8001. Should the sale of the estate realise more than enough, when invested, to pay the said annuities, then the extra proceeds shall be invested in the aforesaid bonds for the benefit of Mrs. Isabella Hicks, but the sum to be paid her from the said investment shall not exceed 5001. annually, which is to continue for her sole use and benefit. For the working of the East Indian estate I leave (in addition to the sums already forwarded to India for the working of the said estate) it to my trustees to set aside a sum of money which shall be used as a reserve fund in case of blight, drought, or any similar cause, but such sum of money to be equal to only three months' working estate expenses, such sum of money not to be raised by mortgaging the property or the proceeds to be derived therefrom. The trustees shall be invested with power to invest the moneys for Mrs. Hicks and her children in India bonds or shares. I appoint my brother, Christian Jacob Ross, residuary legatee." The testator, by a codicil to his said will, empowered his trustees to let his said estate for any term not exceeding three years. He died on August 30, 1868. The chief question now to be decided was whether the annuities of 561. to the testator's widow, and of 800l. to Mrs. Hicks' children, were annuities for life or perpetual. The testator's assets were altogether ample to satisfy his bequests, but his Indian estate, which had been sold, had realised only 3,500l. Mr. Amphlett and Mr. Bush, for the plaintiffs, the children of Mrs. Hicks, contended that the annuity bequeathed to them was a perpetual annuity. The rule was this, if there was a mere gift of an annuity with nothing more, the bequest was for the life of the annuitant, but where the gift was of the property out of the interest of which the annuity was directed to be paid, there the annuity was perpetual. In this case the proceeds of the Indian estate were given to pay the annuity which, therefore, was intended to be perpetual. The condition that the annuitants were to assume the testator's name pointed also to his intention that the annuity should be perpetual. Then, again, upon the death of any child there was a gift over of the deceased child's share. As to the principle that the appropriation of a fund to answer the annuity created an inference that the annuity is to be perpetual they cited Stokes v. Heron, 2 Dr. & War. 89; Vaughan Hawkins on Wills, 128. In this will all the other annuities, excepting these two to the testator's widow and to Mrs. Hicks, were expressly limited to the duration of the recipients' lives. Mr. Eddis and Mr. Nalder, for Captain and Mrs. Hicks (who had liberty to attend the proceedings), upon the question of the annuities supported the plaintiffs' contention. During the minorities of the children the income ought to be paid to Mrs. Hicks, to be applied for the children's maintenance, without inquiry as to the manner in which she expended it Crockett v. Crockett, 2 Phill. 553; Hammond v. Neame, 1 Swanst. 35. Mr. Swanston and Mr. Housley, for the trustees and executors of the will, and for the testator's widow, argued that the gift to her was of a perpetual annuity; where the testator by his will intended the provision to be for life only, he had so expressed it. The testator had given all his property of every description for the purpose (amongst others) of answering this annuity, therefore the annuity must be taken to be a perpetual one— Stokes v. Heron (ubi supra); Kerr v. Middlesex Hospital, 2 De |