Title-deeds-When Bill may be Filed by Remainderman for Production of. 14. Trustee-When and upon what Terms he can Retire from the Trust.

1. MORGAN V. MORGAN. 4 Ir. Ch. Rep. 606.

Election.

The doctrine of election applies to a remainder expectant on an estate tail, as well as to immediate interests. Thus, where a testator devised certain lands of which he was seised in fee to A., and other lands at C., of which he was seised in tail, to B., and A., on the death of the testator, became entitled in remainder expectant on the estates tail of his two brothers to the lands at C., it was held by the Lord Chancellor of Ireland, overruling Stewart v. Henry (Vern. & Sc. 491), that A. was bound to elect. -(See also, 1 Swanst. 362, and Stor. Eq. Jur. s. 1095.)

2. SPYER V. HYATT. 20 Beav. 621.

Husband and Wife-Freebench or Dower not Assets for Payment of Debts. Sir J. Romilly, M.R., held in this case that the widow's estate of dower or freebench is not assets for the payment of the mere debts of her husband, who has died intestate. It was indeed argued, with considerable ingenuity, for the plaintiff, one of the creditors of the intestate, that the statute 3 & 4 Wm. 4, c. 104, makes freehold, customary-hold, and copyhold estates assets for the payment of debts on simple contract, as well as specialty; and the 5th section of the Dower Act, 3 & 4 Wm. 4, c. 105, enacting, "that all partial estates and interests, and all charges created by any disposition or will of a husband, and all debts, incumbrances, contracts, and engagements to which his land shall be subject or liable, shall be valid and effectual as against the right of his widow to dower;" that the result was, that the first Act subjected the copyholds to the intestate's specialty and simple-contract debts; and the second Act gave them priority over the widow's dower. His Honour, however, in giving judgment, observed: "If the argument on behalf of the plaintiff were to prevail, it would follow, that where a person, seised of lands out of which his wife is entitled to dower, dies intestate, the creditors could take the whole of the land, and altogether defeat the widow's dower; but they cannot do so. In truth, what is claimed by or comes to the widow was no part of what the intestate was seised of at his death. He died seised of lands subject to the widow's right to dower, and it is only that which became subject to the payment of his debts. Freebench

stands upon the same footing, and is not subject to the husband's debts."

3. FRY V. NOBLE. 20 Beav. 598.

Husband and Wife-Dower-Conveyance to Uses to Bar Dower, and Declaration against Dower before Dower Act-Not Binding on Woman Married since the Act.

The dower of a woman married after the Dower Act (3 & 4 Wm. 4, c. 105), out of an estate made subject to dower by that Act, will not be excluded by a conveyance to uses to bar dower, and a declaration against dower, contained in a conveyance prior to the Act. Thus, in the above-mentioned case of Fry v. Noble, real estate was conveyed to such uses as Fry, then a married man, should appoint, and in default of appointment to Fry for life, and after the determination of that estate in his lifetime to the use of B., his executors and administrators, during the life of Fry, upon trust for him, "and to the intent that the then present, or any future, wife of Fry might not be entitled to dower;" with remainder to the use of Fry in fee. Fry's wife having died, he, after the passing of the Dower Act, married again. It was held by Sir J. Romilly, M.R., that the second wife's dower was not barred by the conveyance to uses to bar dower, nor by the declaration contained in the same deed. "The question," said his Honour, "is, whether the widow is entitled to dower out of the real estate of her husband, and depends on the construction of the Dower Act. Two things are quite clear; first, that if the words 'to the intent that the present, or any future, wife of Fry might not be entitled to dower,' had been omitted from the deed of 1827, the plaintiff (the widow) would have been entitled to dower; and next, that if the deed with these words had been executed since the Dower Act, the widow would have been barred The statute appears to me to be very much to this effect:-The 2nd section gives the dower to the wife in every case where the husband of a wife married subsequently to the 1st of January, 1834, has an estate equal to an estate of inheritance. Then the 6th section says, that the wife's dower is to be taken away whenever there shall be in the conveyance of the land a declaration that she shall not be entitled to dower. This section leaving it doubtful whether the declaration is to be prospective only, or prospective and retrospective also, the 14th section says, 'but this Act shall not give to any deed executed before the 1st of January, 1834, the effect of defeating or prejudicing any right to dower.'

"I read the enactments very much as if they were three Acts of Parliament instead of three clauses. The first gives the dower, the second takes it away; but the third says that a prior deed is to have no operation at all in defeating dower. Independently of the 6th section, she appears to me to be entitled to her dower; and I am of opinion that the 14th section prevents the 6th section, or the declaration in the deed, from having any operation or effect.

"Although I was a member of the Legislature at the time that this Act passed, and took some part in the discussion of the real property statutes which then passed, I am unable to state what motive the Legislature had in providing that the ordinary uses to bar dower, which expressed an intention that dower should not attach, should for the future have no operation, and yet allowing a simple declaration, in another form of words, to have that effect. It is somewhat difficult to understand, where the intention is clear, why the Legislature should have preferred one mode of expressing that intention to another. It appears somewhat capricious, but I can only construe the Act as I find it. It seems to be pretty clear that the Real Property Commissioners, from whom this statute originated, seem to have had an intention of putting an end to dower altogether; but they found this either difficult or impossible, and instead of doing so, suggested this modification of it. However, the result of my opinion on this case, which, I presume, was never contemplated by the framers of this Act, is, that the widow is entitled to her dower." This decision was afterwards affirmed, upon appeal, by the Lords Justices, Turner, L.J., dubitante.

4. TUER V. TURNER. 20 Beav. 560.

Husband and Wife-Reversionary Interest of Wife in Lands directed to be Sold-Fines and Recoveries Act.

Sir J. Romilly, M.R., held in this case that a husband and wife can, under the Fines and Recoveries Act (3 & 4 Wm. 4, c. 74, s. 77), make a perfect conveyance of a reversionary interest of the wife in the produce of real estate directed to be sold. "The right to the proceeds of land directed to be sold," said his Honour," certainly gives a married woman an equitable interest in the land. I must follow the decision of Vice-Chancellor Wood, who seems to have decided the case of Briggs v. Chamberlaine (11 Hare, 69), after he had taken time to consider the decision in Hobby v. Collins (De G. & Sm. 293)."

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5. GROVES V. WRIGHT. 2 Kay & Johns. 347.

Legacy for Life-Farming Stock-Profits Distinguishable.

A farmer gave his residuary real estate, and his farming stock and implements of husbandry, and residuary personal estate, to trustees, upon trust to permit his wife to have the full use, benefit, and enjoyment of the same during her life, and after her decease to sell the same, and divide the produce among his children. The widow, after the testator's death, carried on the testator's farm, and took additional land, to farm on lease, in the name of her son. It was held by Sir W. Page Wood, V.C., that the lease of the additional land, and the stock thereon, belonged to the widow's estate, and the stock on the original farm to the estate of her husband. "I cannot," said his Honour, "think that the doctrine relating to things quæ ipso usu consumuntur, can have any application to a gift of farming stock. That doctrine applies to a personal use exhausting the subject of the gift. I must regard the intention of the testator. He says nothing, it is true, about carrying on the business; but what could the widow have done with the property so given to her? Could she have sold it? It might have been sold with her consent; but in that case, surely, the income only of the proceeds must have been paid to the widow for life. That is, perhaps, begging the question of the application of the doctrine as to things quæ ipso usu consumuntur; but no case has been cited in which the whole of the testator's farming stock having been the subject of the gift, that doctrine has been held to apply. When all the wine in a house is given to one for life, of course the legatee for life may drink it. And there was a case in which carriage-horses were held to come within the same rule; but there the tenant for life had actually used them. Here the farming stock is given for the benefit of the testator's widow for life. She could not personally use it so as to consume it; the only use she could so personally make of it would be to sell it. By such a bequest, the testator must, I think, have intended that his widow should have the use of the stock, contemplating that she would carry on the business of the farm with it. She might have allowed the stock to be sold, and have taken the income of the produce for life, leaving the capital to the legatees in remainder, or if not, I must suppose that the testator contemplated that she would carry on the business; and if, in the course of such business, it was necessary that any part of the farming stock should be sold, then the substituted stock would follow the course of the original subject of the bequest."

6. BOLD V. HUTCHINSON. 5 De Gex, Mac. & G. 558.

Marriage Articles-Rectification of Settlement-Mistake.

The father of a lady, upon a treaty for her marriage, stated to the plaintiff, her intended husband, that "at the death of himself and his wife, his daughter would have 10,000l. at the very least." The articles of settlement afterwards drawn up contained the following clause :-"A covenant is to be drawn up by which Sir W. H. [the father] guarantees that his daughter shall at the decease of both parents have a property of not less than 10,000l." The articles were sent to a person who acted as solicitor for all parties to prepare the settlement. The settlement contained a recital that the intended wife, upon the death of her father and mother, would become entitled to a fortune of 10,000l. and upwards; but it did not contain any express covenant on the part of the father to make good that sum, as was stipulated for by the marriage articles. It was held by the Lord Chancellor (Lord Cranworth), on a bill being filed by the husband, who had survived his wife, against the executors of the father, that, having regard to the representation made by the father, and the articles, there was sufficient evidence of mistake to authorize the Court to make the settlement conformable with the articles, and that the estate of the father was bound to make up the portion of his daughter to the stipulated sum. After referring to Legg v. Goldwire at the end of the case of Glenorchy v. Bosville (Ca. t. Talb. 20), his Lordship observed, "I stated my impression that the later authorities had departed from the principles to be found in the older cases. The doctrine now is, that when a settlement purports to be in pursuance of articles entered into before marriage, and there is any variance, there no evidence is necessary in order to have the settlement corrected; and although the settlement contains no reference to the articles, yet if it can be shown that the settlement was intended to be in conformity with the articles, if there is clear and satisfactory evidence showing that the discrepancy had arisen from a mistake, the Court will reform the settlement, and render it conformable to the real intention of the parties." After stating Rogers v. Earl (1 Dick. 294), the facts of which are more fully detailed by Lord St. Leonards in the first volume of his Vendors and Purchasers (p. 264), and Young v. Young, cited in Rogers v. Earl, his Lordship adds: "In these and other cases referred to by Lord St. Leonards, the settlements were rectified, and the later authorities have put the matter upon the true footing; i.e. that if it is perfectly