share in a bequest to his children contained in the will of a person in England. 8. ROBINSON V. WHEELWRIGHT. 21 Beav. 214. Married Woman- Clause against Anticipation cannot be released by the Court to enable her to Elect. A testator gave a legacy to a married woman, on condition that she within twelve months conveyed property (settled to her separate use, and with a restraint against anticipation) upon certain trusts therein mentioned. It was held by Sir John Romilly, M.R., that although the acceptance of the legacy would have been highly beneficial to the married woman, the Court of Chancery could not enable her to take it, by releasing her separate property from the restraint against anticipation. "It is said," observed his Honour, "that these cases of separate use and restraints upon anticipation are mere creatures of equity, and that therefore a Court of Equity may deal with them as it thinks right. It is no doubt true that they have arisen from the doctrines laid down by the judges who have presided in Courts of Equity; but so have all trusts; and it does not therefore follow that the Court can dispense with or mould this fetter as and when it thinks fit. I concur in the argument of Mr. Follett, that if the Court could, on the present occasion, dispense with it, because it is for the interest of the married woman, it might and would in like manner be dispensed with, if a person offered to give her three times the value of the property to settle it on the same trusts, provided she conveyed her separate and inalienable interest in the property. But I am of opinion that she could not so convey it; the first testator has thought fit to impose certain fetters on his property, which are sanctioned by the law of England, and which it permits a testator to impose; those fetters remain, and make the property in the hands of the devisee or legatee absolutely inalienable for any consideration whatever." 9. DARBY V. DARBY. 3 Drew. 495. Partnership in Purchasing Land for Sale-Conversion of Realty into Personalty. Two persons purchased real estate on a joint speculation, with joint moneys, for the purpose of laying it out in building-plots, and reselling it at a joint profit or loss. It was held by Sir R. T. Kindersley, V.C., that the estate was converted out and out, and upon the death of one of the partners, his share of the real estate remaining unsold went to his personal representatives, and not to his heir-at-law. His Honour, after an elaborate examination of the authorities, said, "I can have, no difficulty in coming to the conclusion, that whenever a partnership purchase real estate for the partnership purposes, and with the partnership funds, it is, as between the real and personal representatives of the partners, personal estate. "Now this case is not the ordinary case, where persons carrying on the ordinary business of a commercial or manufacturing partnership, have found it necessary to purchase real estate for partnership purposes. That is not the case; here they bought land as the stock in trade, by the sale of which they were to make their profits; the land was not in the nature of plant, but was the very subject-matter of their trade. Does that make any difference? If it does, I think it is in favour of treating it as converted; because the real estate is here clearly put in the same position as ordinary stock in trade; and it appears to me, that if I entertained more doubt than I do on the general question, that doubt would, in this case, be very much diminished by the circumstance that here the real estate is itself bought for the purpose of selling it again. The very intention of the partnership was to buy land to re-sell it, that is their very contract; and without selling the land again, there would be no partnership business. The partnership was for the purpose of buying land to parcel it out in lots, and to sell them again; and each partner had a right to say he would have that contract carried out. We have here what Lord Thurlow wanted in Thornton v. Dixon (3 Bro. C. C. 199), an actual contract that the land shall be sold." 10. FRASER V. KERSHAW. 2 Kay & Johns. 496. Partnership-Solvent Partner may wind up Business, and sell Partnership Property-Not his Assignee or Judgment Creditor. It has long since been well established by numerous decisions, that, although upon the bankruptcy of one partner the partnership is dissolved, so that no new transaction can be undertaken on account thereof by the solvent partner; it nevertheless exists for the purpose of winding up the affairs of the firm, and that for such purpose the solvent partner may sell the property, and apply the proceeds in payment of debts. The case of Fraser v. Kershaw, however, decides that this right of the solvent partner is merely personal to him, so that it can neither pass from him to another, either by an assignment by deed, or by an assignment at law as a judgment against him. There goods of a firm having been taken upon a bona fide judgment against a solvent partner, whose co-partner was bankrupt, upon a bill filed by the assignee, an injunction was granted by Sir W. Page Wood, V.C., to restrain the judgment creditor, who had purchased all the share, right, and interest of the solvent partner in the goods, and had subsequently professed to sell the whole as his own property, from delivering possession of the goods to the purchaser. "Fox v. Hanbury," said his Honour, "decided that if one of two partners becomes bankrupt, the solvent partner, in winding up the affairs of the partnership, has a right to sell the partnership property to pay the partnership debts. But it does not follow that this right can be transferred to another. The solvent partner would not be able to assign over to another, as part of all his right and interest,' the power of sale so vested in him for the payment of debts. That power is a personal authority, personal to him in his capacity of partner, and which he may exercise in that capacity. Still less can it be inferred from the authority of Fox v. Hanbury that a solvent partner, by exposing himself, although perfectly bond fide, to a judgment, and allowing his share to be taken in execution, can pass to the sheriff any such power of selling the partnership property for the purpose of winding up the partnership affairs. The sheriff can have no such power, any more than a stranger has such power. It is a power confined to the partner himself, which, when exercised bona fide, the Courts have maintained, to enable him to proceed in winding up the partnership affairs in due course. None of the authorities which have been cited touch the case before me. . . . If the whole property could have been sold in market overt, the whole would have passed to the purchaser, and the assignees would have been deprived of what is their clear right; viz., to have the affairs of the partnership wound up, and the property of the partnership sold, under the direction of the Court. The consequence is, the defendant must be restrained from making any attempt to deliver over the goods in question, and so displacing the rights of the plaintiff." 11. TRUELL V. TYSSEN, 21 Beav. 437. Power of Sale, with Consent of Tenant for Life in Possession-Accelerated by Surrender of previous Interest. Although clear, upon the authorities, that a power to charge an estate given to a person when in possession cannot be accelerated by the surrender to him of a previous estate, it has nevertheless been decided in the above-mentioned case, that a power of sale may be accelerated by such means. There a testator, being seised of an estate in remainder, subject to the life-estate of J. S., devised it to trustees in fee, in trust for his wife for life, with remainders in strict settlement. And he gave power to the trustees, "with the consent in writing of the tenant for life or tenant in tail, for the time being entitled in possession, under the limitations thereinbefore contained," to sell the property, and the proceeds were to be laid out in lands to be settled to the same uses. J. S. surrendered her life-estate to the testator's widow for the purpose of enabling the trustees to sell with her consent. It was held by Sir John Romilly, M.R., that they could make a good title. "It seems," said his Honour, "to be, if not settled, at all events the better opinion, and one which the Court would be disposed to act on, that when a power to charge an estate is given, under circumstances like these, that is, when there are two successive life-estates and an estate in remainder, and a power is given to the tenants for life in possession to charge, that power cannot be exercised by the second tenant for life, upon the first surrendering his life-estate, so as to bring the second into possession. The reason is obvious; it might be done for the purpose of fraud, and for multiplying the charges on the estate against the remainderman; the testator has given the property in such a way, that the estate of the person in remainder shall not be charged by the second tenant for life, until he comes into possession of the estate after the death of the first tenant for life. If it were otherwise, the result might be this :-the first tenant for life might surrender his estate, and so enable the second to create the charge, and he might afterwards die before the first tenant for life, and a charge might thus be created which was never contemplated, and which could never have taken effect under the strict words of the settlement; great frauds might thus be committed. "But I am of opinion that this reasoning does not apply to a power of sale, and that the distinction has been correctly taken in the argument. A charge diminishes the estate of the remainderman, but a sale and exchange does not; and the reasoning, as applicable to accelerating a power to charge, fails in regard to a sale or exchange. In the case of a charge, it is the intention of the testator that the interest of the remainderman shall not be diminished, except in the particular case specified; but in the other case, there is no diminution of his interest, but only a change in the property; the same presumption therefore does not arise. The conclusion I have come to is this, that this rule does not apply to powers of sale and exchange. It is admitted to be a question of intention, and you must therefore look to the words of the will. The power of sale is attached to VOL. II. NO. III. 2 c the estate for life, which is accelerated; but it is obvious that, as regards the tenant in remainder, the value of the subject-matter given to him by the donor is not in the slightest degree diminished. by the exercise of the power of sale. The land from realty is turned into money, but the value, by a bond fide sale, is exactly the same. In the case of a charge it is not so; the interest of the remainderman is diminished by an additional charge, by something taken away, under circumstances not contemplated by the donor, and therefore it does not come within the terms of the power. "Another argument suggested is the possibility that the remainderman might wish to preserve the family estate unsold, that he may attach to it a premium affectionis. I am of opinion that this argument cannot apply in the present case, because the power of sale shows that the donor did not intend or wish the estate to be preserved; the remainderman must take it subject to the condition attached to the gift, and has no right to prevent its being sold, if the tenant for life wishes it, provided the sale is bond fide. "It is not to be presumed that the intention of the testator is other than that which he has expressed in plain terms in his will, and I cannot hold that the tenant for life shall not be able, during the existence of the life-estate, to exercise the power bond fide." The question determined in the above-mentioned case by the Master of the Rolls seems certainly to depend upon what was the intention of the testator, and it is with great deference submitted that such intention should be only gathered from his will. Now, according to that, the trustees were to sell "with the consent of the tenant for life for the time being entitled in possession under the limitations thereinbefore contained." Now, in this case, is a person who purchases a life-interest from another, upon the determination of which his own life-interest arises, in possession under the limitations of the will? It is submitted that, according to the ordinary principles of construction, he is not so; and if not, he could not by his consent give effect to the sale by the trustees. It is true that it may appear in the case of a power of charging to be a greater hardship upon. others entitled in remainder, that a tenant for life should, by obtaining a surrender of a prior interest, be entitled to charge the estate, because, in the event, he might die before he might come into possession. But why should the intention of a testator be interpreted by a possible result of the act of another person rather than by the rational meaning to be affixed to his own words? The obvious reason why the consent of the |