nominees should incur any liability. On the contrary, the understanding between us was that the transfers should be executed and registered immediately, and that the nominees would then be relieved from all responsibility whatever." Mr. A. T. Cox, the solicitor for the Defendant, made an affidavit, in which he said: "Since the institution of this suit, and on or about the 26th of January, 1869, I saw W. T. Jennings, a print of whose affidavit, filed in this suit on the 8th of April, 1870, I have read. I inquired of him particularly as to the facts and circumstances referred to in the Plaintiff's bill, and at the time I took down in writing from his own lips a statement, which he signed in my presence, and which is now produced and shewn to me, and marked with the letter Z. I believe the said exhibit to contain a true record of what the said W. T. Jennings then said to me, partly in answer to my inquiries and partly of his own accord." The exhibit Z contained the following statement: “Mr. Maddick agreed to give me a certain sum of 100 guineas. I said I could get four people to apply, and I did get them, and the 100 guineas was twenty-five guineas a piece. It was understood that the parties were to take all the risk of becoming shareholders. Of course it was for that the twenty-five guineas was paid them: they were not to have twenty-five guineas for nothing." The exhibit Z was admitted on the hearing before the ViceChancellor, no objection having been made to its reception, and was entered in the decree; but on the counsel for the Defendant proposing to read it before the Lords Justices, it was objected to by the Plaintiff. Mr. Higgins, Q.C. (Mr. Glasse, Q.C., with him), for the Appellant. Mr. Cotton, Q.C., and Mr. A. T. Watson, for the Plaintiff. The LORDS JUSTICES were of opinion that the statement was inadmissible as evidence, and ought not to have been admitted at the hearing. The only purpose for which it could be used was to L. JJ. 1872 HEMMING v. MADDICK. L. JJ. 1872 discredit the witness who made it; and if it were to be used for that purpose, the witness ought to have been cross-examined, and HEMMING then the document might have been put into his hand, and he might have been questioned about it. MADDICK. At the conclusion of the arguments on behalf of the Appellant, The LORDS JUSTICES, without calling on the Plaintiff's counsel, held that the trust was clearly established, and that the Plaintiff was entitled to an indemnity against calls. The appeal was therefore dismissed with costs. Solicitors for the Plaintiff: Messrs. Linklater, Hackwood, & Co. Land was conveyed to a trustee, his heirs and assigns, to certain uses; and after the determination of those uses, to the use of the trustee, his heirs and assigns, upon trust to receive the rents and profits and pay them to A., a married woman, for her separate use, and after the determination of that estate to stand seised of the said land, to such uses and upon such trusts as A. should by will appoint, and in default of appointment, to the use of the heirs and assigns of 4. : Held (reversing the decision of the Master of the Rolls), that (though the construction might be otherwise on a will) the trustee took the legal estate in fee, and that A. took an equitable estate for life, with an equitable remainder to her heirs and assigns, which two estates united according to the rule in Shelley's Case (1), and gave her the equitable estate in fee. BY granted and released unto the said Benjamin Smith, his heirs and assigns, certain messuages and lands at Stockwell, to have and to hold the said lands, messuages, and hereditaments, to the uses upon the trusts and under and subject to the provisions, conditions, and limitations thereinafter contained of and concerning the same: (that is to say) to the use of Charles Smith and his assigns during his life, and after his death to the use of his widow and her assigns during her life; and the deed proceeded, "and from and after the determination of that estate, then, in case the said Mary Smith shall be discovert, to the use of the said Mary Smith, her heirs and assigns for ever; but in case (which event happened) the said Mary Smith shall happen to be then a married woman, then to the use of the said B. Smith, his heirs and assigns, upon trust to take and receive the rents, issues, and profits of the said lands and hereditaments hereby released, or otherwise assured, or intended so to be, when and so often as the same shall become due and payable, and to pay the same when so received into the only proper hands of the said Mary Smith for and during her natural life, to and for her sole and separate use, wholly independent and free from the control of her husband, and so that her receipt alone shall be a good discharge to the said B. Smith, or the trustees or trustee for the time being acting under these presents for the payment of the same; and from and after the determination of that estate to stand seised of the said lands and hereditaments to such uses and upon such trusts as the said Mary Smith, notwithstanding her coverture, shall, by her last will and testament duly executed as by law required, direct, limit, and appoint; and in default of any such direction or appointment, or so far as the same, if made, shall not extend or be effectual, to the use of the heirs and assigns of the said Mary Smith for ever." The deed then contained a release from Mary Smith as to a sum of £2000; and further contained a proviso that in case the trusts thereby created should take effect by reason of Mary Smith being under coverture, then it should be lawful for Benjamin Smith, or the trustee or trustees for the time being acting in the execution of the trusts of the deed, to retain out of the rents his reasonable costs; and that it should be lawful for B. Smith, or the trustee or trustees so acting as aforesaid, by and with the consent of Mary Smith, notwith L. JJ. 1872 COOPER v. KYNOCK L. JJ. 1872 COOPER V. KYNOCK. standing her coverture, to grant leases as therein mentioned. Also a proviso giving power to Mary Smith, notwithstanding her coverture, by any instrument under her hand, to appoint new trustees. Also a proviso that, in case, during the continuance of the trusts thereby created and the coverture of the said Mary Smith, she should be desirous of raising any sum of money for the advancement of her children, then it should be lawful for her to direct B. Smith, his heirs or assigns, or the trustees or trustee for the time being acting as aforesaid, to raise any sum not exceeding £1000 for that purpose. Mary Smith was married to E. Cooper soon after the date of the above-mentioned deed. Charles Smith and his widow, and also E. Cooper, were dead. Mary Cooper (in the deed called Mary Smith) contracted to sell the property comprised in the deed, claiming to have the equitable estate in fee simple, inasmuch as her life estate and her estate in remainder united according to the rule in Shelley's Case (1). The purchaser took the objection that her life estate was equitable, and the remainder was legal as a use executed under the statute; that the estates, therefore, did not unite; and that her appointees or heirs would come in as purchasers. Mary Cooper thereupon filed a bill for specific performance. (1) 1 Rep. 93. (2) 1872. Jan. 15. LORD ROMILLY, M.R. (after reading the principal clauses in the deed):— The question here is, is the estate for life to Mary Smith, the Plaintiff, of the same quality as the ultimate remainder to her heirs? Now, here it is clear that the life estate of Mary Smith is an equitable estate, and that during the life of Mary Smith the legal estate is vested in Benjamin Smith, the trustee. But does the legal estate extend beyond the determination of the life estate of Mary Smith? The answer to this question is to be found in the clear intention of the parties appearing within the four corners of the deed. This intention will be carried into effect, and the only control over it is necessary obedience to the established rules of law. In every way that I look at this deed I can see no intention to continue the estate in the trustee beyond the life of Mary Smith. The words I have read shew that, after the death of the Plaintiff, the trustee is to stand seised of the hereditaments to such uses and upon such trusts as Mary Smith shall by will direct; that is, to the uses and trusts -not trusts created by this deed, but to the uses and trusts created by the will of Mary Smith, and in default of Mr. C. Hall, and Mr. Whitehorne, for the Appellant: It is possible that, if this was a will, the limitations would be differently construed; but it is a deed, in construing which the legal meaning of words must be taken: Wykham v. Wykham (1); Parkhurst v. Smith (2); Sand. on Uses (3). A grant to a trustee and his heirs gives him the legal estate: Colmore v. Tyndall (4); Venables v. Morris (5); Lewis v. Rees (6). The case was very different in Curtis v. Price (7) and in Doe v. Hicks (8). There is in this deed a clear grant to trustees and their heirs, and that must mean an her creating any such uses and trusts, then not in trust for the heirs and assigns of Mary Smith, or for any one, but to the use of the heirs and assigns of Mary Smith. This, I think, limits the estate of the trustees, and makes it determine on the decease of Mary Smith. Then I look through the rest of the deed, and I find in it no provisions which require the estate in the trustees to extend beyond the life of Mary Smith. The first clause is to release Charles Smith, the father, from all claim by Mary Smith on account of any money lent, and particularly from any claim in respect of £2000. The next proviso gives power to the trustees to retain out of the rents of the hereditaments all costs and charges they may be put to respecting the trusts, and also to grant leases for fourteen years. This is limited to the trusts taking effect by reason of Mary Smith being under coverture at the decease of the survivor of her father and his wife. It is true that the lease so granted may extend beyond the life of Mary Smith, but the power to grant the lease is clearly confined to her coverture. The next is a power to appoint new trustees, but this is confined to Mary Smith herself, notwithstanding her coverture. The next clause is the usual clause for the indemnity of the trustees, and then comes a power to the trustees to raise portions for the children of Mary Smith; (6) 3 K. & J. 132; 3 Jur. (N.S.) 12. L. JJ. 1872 COOPER v. KYNOCK. |