they cited Robinson v. Comyns, For. 164. Salvin v. Thornton*, at the Rolls, Trin. 6 Geo. 3.-that equitable estates with equitable remainders, are barred by recovery. Lord Chancellor.-In that case the equitable estate for life and the legal remainder were in the son; but supposing all the estates to be equitable, with an equitable reversion, there is no doubt the recovery will bar.-The trustee is bound to do every act in assistance of the equitable tenant in tail. I see no reason why he should not be able to oblige the person having the legal estate to join. Why should the tenant of the legal estate be exempted in conscience from joining in such conveyance?-You have a right to have a legal estate conveyed to you, upon which to suffer a recovery. The defendants acquiescing, his Lordship decreed a conveyance by Henry Allington, to the eldest son of Philip Boteler in tail male, with the remainders over in the will (b). Salvin v. Thornton (a).John Thornton, seised of the premises for life, with remainder to his first son, Thomas, in tail male, remainder to his second son James in tail male, remainder to himself in fee, forfeited in the rebellion in 1745. The estate for life being put up for sale by the commissioners, was bought by Kenneth Mackenzie in trust for Thomas (the tenant in tail) Thomas, thus having the equitable estate for the life of his father, (the legal estate being in the trustee) and the legal estate tail, in remainder, suffered a recovery, and soon after died, leaving issue a daughter, wife to plaintiff. James, the second son, took possession, suffered a recovery (after the death of his father and the trustee, in whom his estate vested), and died, leaving two daughters, the de fendants, who were in possession. The bill was filed by Salvin in right of his wife, for an account of profits, and to have the estate delivered up. Upon hearing at the Rolls, the great question in the cause was, whether the recovery suffered by Thomas, who had an equitable estate for life, and a legal estate tail, in remainder, was capable of barring the legal remainder and upon very full argument these points were laid down by his Honor, and seemed to be the sense of the whole bar. 1st. That a recovery may be suffered of an equitable estate. 2dly. That such a recovery can only affect equitable remainders. 3dly. That a recovery of an equitable estate must, in all respects, imitate a legal recovery, and therefore that the person suffering an equitable recovery must have such an equitable estate as, had it been a legal estate, would have enabled him to suffer a legal recovery. 4thly. That an equitable estate cannot, in suffering a recovery, be blended with a legal estate. 5thly. That as the recoveries suffered of those different estates are perfectly distinct from each other, a recovery of either estate shall not affect the other, the recoveree of the legal estate being always the trustee of the possessor of the equitable estate, and the recoveree of the equitable estate becoming always the cestui que· trust of him who has the legal estate. Upon this doctrine, therefore, the bill was retained for a year, with liberty for the plaintiff Salvin to try the validity of the recovery of Thomas, at law. But it was the opinion of the Court, that, as Thomas had not such an estate as would have enabled him to suffer a perfect legal, nor a perfect equitable, recovery, that it was totally invalid. [(u) Amb. 545]. (b) The whole doctrine respecting equitable recoveries is contained in the very learned and admirable opinions of Lord Eldon, when SolicitorGeneral, Mr. Madocks, and Mr. Fearne, upon the validities of the recoveries F 2 suffered by the Marquess of Bath, HILARY 1779. BOTELER v. ALLINGTON. HILARY TERM. 20 GEO. III. 1780. Earl of HARRINGTON . FLEMMING. When money is to UNDER a decree for money to be laid out in purchases, to be be laid out, under a marriage settle ment, in purchases, application must be made to the Court, upon each separate purchase. settled to uses under the marriage settlement of Lord Harrington and Miss Flemming, Mr. Mitford moved, last term, that the parties might be at liberty to propose purchases to the Master, from time to time, without applying upon each purchase to the Court, and cited Neale v. Neale, in 1728, and Ormston v. Lord Maynard before Lord Camden, in both which cases such an order had been made. Lord Chancellor thought application ought to be made upon each purchase to the Court, but said he would look into the cases. On the first day of this term, Lord Chancellor said,—It is more for the advantage of the suitor, as a general case, that the shape of each proposal should be laid before the Court. It is fit, before the proposition goes to the Master at all, that the Court should see there is a subject proper for his consideration, together with the state of the family. Without prejudice to any opinion upon particular circumstances in a decree, but as a general subject only, I think the proposal ought to be made to the Court. Motion denied. The Master of the Rolls, who was present, expressed his assent to Lord Chancellor's opinion. [75] Lincoln's Inn Hall, January 18. Mr. Baron Eyre, lor, Masters Holford, and Hett. Devise to trustees to pay out of SHAPLAND v. SMITH. for Lord Chancel UPON exceptions to the Master's report, in favour of a title depending on the validity of the recovery suffered by Christopher Shapland, under the following case:-Shapland devised "to John Brett, John Shapland, and George Shapland, the premises in question, upon trust, that they the said J. B., J. S. and G. S. and their heirs and assigns, shall, yearly and every year, by equal quarterly payments, by and out of the rents and profits of the said premises, after deducting rates, taxes, repairs, and expences, pay such clear sum as shall then remain to my brother Christopher decease, to the use of the heirs male of the body of C. S. and in default of such issue, remainder over, not an estate tail in C. S. the use not being executed in him. rents and profits (after deducting rates, taxes, and repairs) the re sidue to C. S. and Shapland, Shapland, and his assigns, during his natural life, and from and after his decease, to the use and behoof of the heirs male of the body of the said Christopher Shapland, lawfully to be begotten, as they shall be in priority of birth; and in default of such issue" remainder over. Cases cited, Tipping v. Cozens, Carth. 272. 1 Ld. Raym. 33. Brown v. Barkham, Pre. Ch. 461. Broughton v. Langley, Eq. Ab. $83. Salvin v. Thornton, Trin. 1766 (ante, p. 73. note) Pigot v. Garnish, Cro. Eliz. 678. Jones v. Lord Say and Seale, Eq. Ab. 383. 8 Vin, 262. 3 Bro. P. C. 458. South v. Allen, 1 Salk. 228 (a). Baron Eyre. A devise to trustees to permit A. to receive or to pay profits to A. amounts to a disposition of the land. What difference is there here? The rule of law is, A. having the use of the estate, the trust shall not be separated from the land, and the use shall be executed in him; this is an estate tail in the first taker, and he hath a right to sell the estate. Master Holford expressed himself of the same opinion. Master Hett asked if his opinion was of any consequence; if so, his was against the doctrine laid down. Baron Eyre seeming doubtful whether it was necessary the opinion of the Masters sitting with a judge must concur with his, in order to found a decree, the cause stood over to be reheard by Lord Chancellor. Upon being reheard, Lord Chancellor was of opinion with Master Hett, that the trustees, being to pay the taxes and repairs (b), must have an interest in the premises, that, therefore, the legal estate for the life of Christopher was in them (c), and See Merreit v. Eastwick, 1 Vern. 265, and the advertisement prefixed to the 2d vol. of Vernon, [(a) There wrong, but right in 5 Mod. 103, and so cited in 2 Ld. Raym. 877. (Serj. Hill).] [(b) Even with this circumstance the use could not have been executed, 2 T. R. 450. (Serj. Hill).] [(c) See the case of Carwardine v. Carwardine, 1 Eden, 36. Where the limitation is to trustees and their heirs in trust to receive the rents and profits and pay them over to A. the nse is not executed in A. by the statute, but where the limitation is to trustees and their heirs, in trust to permit and suffer A. to receive the rents and profits there, the use is executed in A. Simpson v. Turner, 1 Eq. Ab. 384. $79. Broughton v. Langley, 2 Salk. 8 Vin. Ab. 262. Et vide Serj. Williams's and 1780. SHAPLAND บ. SMITH, and he had only an equitable estate for life, and, the subsequent estate being executed, he had an equitable estate for life, and a legal remainder in tail, which could not unite, and, of course, there could not be a good tenant to the præcipe, and the recovery suffered was void. It being necessary, in order to make a good tenant to the præcipe, that there should be a legal estate for life, with a legal reversion in tail, or an equitable estate for life, with an equitable reversion in tail; but said that if it was only doubtful, he would not oblige the purchaser to take the title (a). and taxes, of repairs or the like, the Exception allowed. ance, free from the control of the husbands, to effectuate which it is necessary that the trustee should take an estate with the use executed, which is observed by Sir James Mansfield, 2 Taunt. 111, to have been the true ground of the decision in Jones v. Lord Say and Sele. Et vide Nevil v. Saunders, 2 Vern. 415. Harton v. Harton, 9 East. 655.] [(a) As to compelling a purchaser to take a doubtful title, vide Couper v. Denne, post, vol. iv. 80, and the cases cited in the note.] Sir Thomas Sewell, Rolls, 2d March. hold ground rents, passes not the KAYE . LAXON and others. Request of lease, WILLIAM Mantle, possessed of a leasehold estate held for ninety-nine years, of which under leases had been let by reserved rent him for sixty-three years, and, in some parts of the premises, only, but the re- reversionary leases of nineteen years more, by his will, dated 27th versionary leasehold interest. November, 1770, made the following bequest: "I give and bequeath unto my grandson George Kaye (the plaintiff) my leasehold ground rents in Swallow-street and Orange-street" (the premises, the reversion of which was in question), and made the plaintiff, and some of the defendants residuary legatees. Plaintiff, thinking himself entitled under this will to the reversionary term, which was in the testator, after the expiration of the several leases, as well as to the rents reserved, entered into contracts with Richard Laron, [the husband and testator of ] (a) one of the defendants, for the sale of the whole; but, he objecting to the title, on the presumption that the reserved rents only, and not the estate itself had passed, refused to complete the contracts unless the residuary legatees would join in the conveyance, which some of them re [(a) The words struck out seem inserted by mistake, and are not in a case stating this case before me, Aug. 1787, arising on the will and codicil of Peregrine Cust, Esq. (Serj. Hill).] fusing, fusing, the bill was filed. On behalf of the plaintiff, were cited Kerry v. Derrick, Moore 771. Cro. Jac. 104. cited in 2 Vern. 400. as Cherry v. Dethick. Maundy v. Maundy, 2 Str. 1020. Annaly 142. S. Č. And determined by his Honor, that the whole interest passed to the plaintiff. He therefore decreed a specific performance, without costs on either side (a). [(a) Vide Philips v. Chamberlayne, 4 Ves. 51.] 1780. KAYE V. LAXON. EASTER TERM. [ 77 ] 20 GEO. III. 1780. BROADMEAD V. WOOD. to appoint a sum shall have no part BULL, by marriage articles, had a power to appoint the sum Under a power of £800 (to raise which a term was carved out) for younger of money among children after the death of the wife; but it was "provided" by the younger children, power, "that the eldest son, or the son possessing the estate, should but that the eldest have no share of the £800." He had an eldest son John, a second son, or the son possessing the estate, Anthony, and five other younger children, and appointed the £800 to Anthony, and the other younger children by name. After the appointment, and before the death of the mother, John died, whereby Anthony became an eldest son, and the estate charged with the sum descended upon him. And the question was between the other younger children, and the representatives of Anthony (he being since dead), whether he was entitled to any share of this £800. Mr. Kenyon (for the other younger children) cited Hodges v. Fowler, 1766 (a).-Randal v. Metcalf, 6 Bro. P. C. 559 (b). and Cholmondeley v. Meyrick (c), before Lord Northington; where there being a term of 300 years, for raising a sum of £6,000 for younger children, in such shares as the father should appoint, but, in de fault of appointment, at 21, or marriage, if the father should be then dead, otherwise, immediately after his decease. Mrs. Meyrick, one of the children, dying in the life-time of the father; upon the question whether the portion was transmissible, it was [(a) S. C. 11 Serj. Hill, MSS. $46.] [(b) S. C. 21 Serj. Hill, MSS. 17.] [(c) See this case reported, 1 Eden, 77, in the note to which all the sub sequent cases are collected and eon- held, of the money, a younger son beexcluded, though coming an eldestis mentioned by name in the exe cution of the power whilst he was a younger |