person who became entitled after the determination of the trust to accumulate. The Apportionment Act (33 & 34 Vict. c. 35) came into operation before the execution of Lady Peyton's settlement; but we contend that that Act was not intended to apply to a case where there was no determination of interest, but only a change in the mode of enjoyment. With respect to the life interest of Lady Peyton in the real estate, it is rightly given to the trustees without impeachment of waste. That is the usual form in settlements; and if her husband has such an estate, it is but reasonable that she have it also: Bankes v. Le Despencer (1). Mr. Langworthy, for the Defendants, was only called on upon the question as to the life interest of Lady Peyton : The object of the limitation to the separate use of a married woman is to protect her against her husband's debts. If she has power to cut the timber, her husband would get the benefit of it. In the present case the testator has given discretion to the trustees to give the husband such an estate, but he has given no such discretion in the case of the wife. Davenport v. Davenport (2) is a direct decision in our favour. Mr. W. W. Streeten, for the trustees. Mr. Kingdon, in reply. SIR W. M. JAMES, L.J.:— One We think that it is too late to raise the question as to apportionment after the cases which have been decided in this Court. of them-Shipperdson v. Tower (3)--was decided as long ago as We 1844, and no attempt has been made to shake or question it. must, therefore, take it to be the cursus curiæ, and also the settled understanding of conveyancers, that the Apportionment Act did apply to cases of this kind. The new Act of the 33 & 34 Vict. c. 35, extended the principle of the Act of 4 & 5 Will. 4, c. 22, in (1) 10 Sim. 576. (2) 1 H. & M. 775. L. JJ. 1872 CLIVE v. CLIVE. (3) 8 Jur. 485. L. JJ. 1872 CLIVE บ. CLIVE, The special case, in which Mrs. Clive and Lady Peyton were Plaintiffs, and Mr. Clive, his infant daughter, Sir A. W. Peyton, and the trustees of the settlements were Defendants, was filed for the purpose of determining several questions which arose under the settlements; the only questions requiring a report were— 1. Whether the first payment of the income of Mrs. Clive's share of the trust funds after her marriage ought to be considered income, or whether it ought to be apportioned between capital and income. 2. The like question respecting the income of Lady Peyton's share. 3. Whether the estate limited in favour of Lady Peyton during her life ought to be without impeachment of waste. Mr. Fry, Q.C., and Mr. Kingdon, for the Plaintiffs: With respect to the first question, Mrs. Clive's settlement was executed before the Apportionment Act (33 & 34 Vict. c. 35), and the question must be determined as the law stood under the 4 & 5 Will. 4, c. 22. We contend that the Act did not apply to such a case as this. It only directs that an apportionment shall take place "on the death or determination by any other means whatsoever of the interest" of the person interested in the income. But in this case there was no determination of interest. The property vested in Mrs. Clive on her marriage; but an alteration has taken place in the mode of enjoyment. The whole of the first payment of income after her marriage must be taken as income under the settlement: Campbell v. Campbell (1). The cases which will be relied on by the other side are all based upon St. Aubyn v. St. Aubyn (2). In that case there was a term for accumulation of rents for payment of debts, and it was held that the cesser of that term was a determination of interest. Vice-Chancellor Malins, in Wheeler v. Tootel (3), and Vice-Chancellor Bacon, in Donaldson v. Donaldson (4), although they felt themselves bound by the authority of that case, yet followed it with reluctance. In Shipperdson v. Tower (5) no previons interest had been given to the (1) 7 Beav. 482. (3) Law Rep. 3 Eq. 571. (4) Ibid. 10 Eq. 635. (2) 1 Dr. & Sm. 611. (5) 8 Jur. 485. person who became entitled after the determination of the trust to accumulate. The Apportionment Act (33 & 34 Vict. c. 35) came into operation before the execution of Lady Peyton's settlement; but we contend that that Act was not intended to apply to a case where there was no determination of interest, but only a change in the mode of enjoyment. With respect to the life interest of Lady Peyton in the real estate, it is rightly given to the trustees without impeachment of waste. That is the usual form in settlements; and if her husband has such an estate, it is but reasonable that she have it also: Bankes v. Le Despencer (1). Mr. Langworthy, for the Defendants, was only called on upon the question as to the life interest of Lady Peyton :— The object of the limitation to the separate use of a married woman is to protect her against her husband's debts. If she has power to cut the timber, her husband would get the benefit of it. In the present case the testator has given discretion to the trustees to give the husband such an estate, but he has given no such discretion in the case of the wife. Davenport v. Davenport (2) is a direct decision in our favour. Mr. W. W. Streeten, for the trustees. Mr. Kingdon, in reply. SIR W. M. JAMES, L.J.: We think that it is too late to raise the question as to apportionment after the cases which have been decided in this Court. One of them-Shipperdson v. Tower (3)---was decided as long ago as 1844, and no attempt has been made to shake or question it. We must, therefore, take it to be the cursus curiæ, and also the settled understanding of conveyancers, that the Apportionment Act did apply to cases of this kind. The new Act of the 33 & 34 Vict. c. 35, extended the principle of the Act of 4 & 5 Will. 4, c. 22, in (1) 10 Sim. 576. (2) 1 H. & M. 775. L. JJ. 1872 CLIVE V. CLIVE. (3) 8 Jur. 485. L. JJ. 1872 CLIVE 0. CLIVE. the same direction, so as to make it applicable to every form of reservation of income, which was in all cases to be treated as if it were interest accruing de die in diem, so that there might be no more questions on this subject. Therefore the authorities dispose of the question as regards Mrs. Clive's settlement, and the recent Act disposes of the question as regards Lady Peyton's settlement. There must be an appor tionment of the income in each case up to the date of the lady's marriage. There remains the question respecting the form of the limitation of the life estate to the trustees for Lady Peyton. The testator has directed the trustees to settle the property on his granddaughter for her separate use, without power of anticipation, and has expressly authorized them to give power to her husband to commit waste, but has authorized nothing of the kind with respect to the granddaughter herself. It appears to me difficult to conceive how a power to commit waste can exist consistently with a restraint on anticipation. The very object of the restraint is to protect the property against the husband; but if the power to commit waste was given, all the timber on the estate might be swept away to pay the husband's debts. There was no inconsistency in giving such a power to the husband. The trustees might fairly have a discretion in the matter, in order that they might make the best terms they could with the husband, and this discretion they have exercised. SIR G. MELLISH, L.J., concurred. Solicitors for all parties: Messrs. Cope, Rose, & Pearson. ALLAN v. GOTT. [1867 A. 67.] Will-Exoneration of Personalty-Legacies charged on Real Estate-Discretion in Trustees to sell-Mixed Fund of Realty and Personalty. In order that legacies charged upon real estate may be payable out of the real and personal estate pro ratâ, it is not necessary that the testator should have directed an absolute conversion of the real estate. It is sufficient that he has shewn an intention of creating a mixed fund of realty and personalty out of which the legacies are to be paid. Therefore, where a testator had empowered his trustees to sell his real and personal estate in case and as often as they should think fit, and had directed them to pay certain legacies out of the residue of his real and personal estate, and the moneys arising from the sale thereof: Held (affirming the decision of Bacon, V.C.), upon the construction of the whole will, that the legacies were payable pro ratâ out of the real and personal estate. Tench v. Cheese (1) commented on. THIS was an appeal from an order on further consideration, made by Vice-Chancellor Bacon. John Gott, by his will, dated the 26th of June, 1852, directed his just debts and funeral and testamentary expenses to be, in the first place, paid and discharged out of his personal estate. He then gave various specific and pecuniary legacies, the legacy duty on which he willed should be paid out of his personal estate, and devised two freehold estates (one of which he directed to be chargeable in aid as thereinafter mentioned, with the annuity thereinafter bequeathed to his wife) to his brother William Gott. He then gave, devised, and bequeathed all other his real estate, whatsoever and wheresoever, not therein before disposed of, and all his moneys and securities for money, and all other his personal estate and effects not thereinbefore disposed of, to W. Gott, W. Allan, and W. W. Maitland, their heirs, executors, administrators, and assigns, upon the trusts thereinafter declared; and he empowered his said trustees or trustee for the time being, from time to time, in case and as often as they or he should think fit, to sell and absolutely dispose of, call in and convert into money, all and every his said real and (1) 6 D. M. & G. 453. L. JJ. 1872 Feb. 28; |