pass, that the equitable interest therein resulted subject to the widow's right to dower and freebench to the plaintiff's respectively, and for administration of the

estate.

Mr. Southgate and Mr. B. B. Swan, for the plaintiffs. The testator has expressly confined the trusts for sale and conversion to his personal estate; and the other trusts are confined to the proceeds of that sale and conversion, and we submit that shews that the testator was only dealing with personal estate, and that the real estate did not pass by the general words of devise and bequest. In

Doe d. Spearing v. Buckner, 6 Term
Rep. 610,

real estate was held not to pass under the general word "estate." We admit that the authority of that case may be doubted now; but

Doe v. Hurrell, 5 B. & Ald. 18;

Coard v. Holderness, 24 Law J. Rep. (N.S.) Chanc. 388; s. c. 20 Beav. 147,

also support this view of the present case.

Even if it did pass to the trustees, we say that no trusts have been declared with respect to it, and that the beneficial interest resulted to the plaintiffs, as in

Dunnage v. White, 1 J. & W. 583; and the trustees must convey to them when they come of age.

D'Almaine v. Moseley, 22 Law J. Rep. (N.S.) Chanc. 971; s. c. 1 Drew. 629,

will, no doubt, be cited against us; but even if that case can be supported, which we say it cannot, this case is distinguishable, for here the testator has put his own interpretation on the subject matter of the trust. We only ask for a decree for administration so far as to provide for the costs of this suit.

Mr. Oswald, for the trustees.

Mr. Ramadge, for the widow and other children. If the contention of the plaintiffs, that the legal estate did not pass, but is in themselves, be right, there can be no decree in this suit.

[Mr. Southgate pointed out that, being infants, they could maintain a suit against anyone wrongfully in possession for an account of rents and profits.]

This case is governed by-
NEW SERIES, 41.-CHANC.

D'Almaine v. Moseley (ubi supra), and Fullerton v. Martin, 22 Law J. Rep.

(N.S.) Chanc. 893;

The words 66 devise and "heirs " clearly shew that here "estate" carries realty; and under the same words it becomes subject to a trust to "invest." The cases cited shew that "invest" implies sale, and the realty is therefore subject to all the trusts of the will.

Patterson v. Huddart, 17 Beav. 210, shews that the burden of proof is on the plaintiffs to prove that the word "estate" does not include realty. Here if the "estate" of which the trustees were to stand possessed upon trust to invest did not mean realty, it would be restricted to money.

Mr. Southgate, in reply.-The reasoning of Vice Chancellor Kindersley in both D'Almaine v. Moseley (ubi supra) and Fullerton v. Martin (ubi supra) is the same. It was this: In both there was a gift of "estate and effects" and a trust to "invest." The Vice Chancellor says-leaseholds would pass, therefore, "invest " applies to them; but it is equally applicable to realty; therefore, realty passes. That is unsound; for leaseholds pass to the executors and are sold, not by form of the gift, but by the law; and "invest does not imply the power of sale as to them. In this will, however, there is an express power of sale, which is expressly confined to personalty.

THE MASTER OF THE ROLLS (on December 19, after taking time to consider), was of opinion having regard to the words "devise," "heirs," and " estate," and following Dunnage v. White (ubi supra), that the real estate passed to the trustees, but that the trusts were entirely confined to the personalty, and that there was a resulting trust in favour of the plaintiffs, and made a decree to that effect, and declaring the costs of all parties as between solicitor and client to be a charge on the real estate.

Solicitors Mr. Wm. Sturt, for plaintiffs and trustees; Messrs. Wilkinson & Howlett, for other parties interested.

Ꮓ

LORD ROMILLY, M.R. 1871. Dec. 9.

Ex parte CORPUS CHRISTI COLLEGE, OXFORD.

Lands Clauses Consolidation Act-Peti

Costs.

Lands were taken by each of four railway companies, two of which were absorbed by the third, the G. W. Co. The purchase moneys in respect of their three purchases were paid by the G. W. Co. to three separate accounts, namely, of itself and of the two original companies:-Held, that the costs of reinvestment of the whole must be borne in moieties by the G. W. Co. and the fourth

company.

Re Maryport Railway Act, 32 Law J. Rep. (N.S.) Chanc. 811, disapproved of.

This was a petition for the permanent investment of money which had been paid into Court in respect of six parcels of land which had belonged to the college. Two parcels had been taken, one by each of two companies which were afterwards absorbed by the Great Western Railway Company; two others by the Great Western Railway Company itself, and the other two by the London and South Western Railway Company. The purchase money in respect of the two first mentioned parcels had been paid by the Great Western Railway to the accounts of the absorbed companies. As to the costs of this petition it was submitted by

Mr. H. A. Giffard, for the Great Western Railway Company, that this company and the London and South Western Company must bear them in moieties; and by

Mr. Gazelee, for the London and South Western Company, that the company should pay only one-fourth, as in

Re Maryport Railway Act, 32 Law J.
Rep. (N.S.) Chanc. 811; s. c. 32
Beav. 397.

[Mr. Giffard pointed out that in that case the purchases had been completed by the separate companies before the amalgamation.]

Mr. Cookson, for the college.

Will-Construction-Vested Interest.

A testator gave the residue of a mixed fund (after a life interest to his wife) among the children of his three brothers who should be living at the death of his wife or his own death, which events should happen last, per capita, to be paid and vested in them at twenty-one, or if females on marriage. One of the nieces survived the testator and his wife, but died under twenty-one, unmarried-Held, that she took a vested interest.

The Rev. James Parr, by his will dated April, 1848, devised his real estate upon trust to be converted and form part of his personal estate, and after having given his wife a life interest, directed that his trustees should hold the residue in trust for all and every the children of his three brothers, Frederick Parr, Robert Parr, and Henry Parr, who should be living at the decease of his said wife, or at the time of his decease, which should last happen, to be equally divided between or among such children per capita, and not per stirpes, as tenants in common, and not as joint tenants, their respective executors, administrators, and assigns, and to be paid to and vested in such of the said children as should be a son or sons at his or their ages or respective ages of twentyone years, and to such of the said children as should be a daughter or daughters at her or their age or respective ages of twenty-one, or day or days of marriage,

which should first happen, together with interest on the said legacies or shares respectively, which he directed should accumulate in favour of the aforesaid legatees, until they, being sons, should attain the age of twenty-one years, or being daughters, should attain that age or day of marriage.

The testator's wife survived him, and died in the year 1859; there were then living, issue of the testator's three brothers, fifteen children, one of whom a female died in 1869, an infant unmarried. A question raised on the petition was, whether her fifteenth share in the residue belonged to her personal representatives or whether it lapsed, or accrued to the shares of the other children.

Mr. Bedwell, for the personal representative of the deceased child, relied

on

Re Edmondson's estate, Law Rep. 5 Eq. 389;

Taylor v. Frobisher, 21 Law J. Rep. (N.S.) Chanc. 605; s. c. 5 De Gex & S. 191;

Berkeley v. Swinburne, 17 Law J.

Rep. (N.S.) Chanc. 416; 16 Sim. 275.

Mr. Whitehead, for the other fourteen nephews and nieces of the testator, contended that the share accrued to them

Murray v. Tancred, 10 Sim. 465; Griffiths v. Blunt, 10 Law J. Rep. (N.S.) Chanc. 372; s. c. 4 Beav. 248;

Re Thruston's Estate, 18 Law J. Rep. (N.S.) Chanc. 437; 17 Sim. 21. Mr. Yate Lee contended that there was an intestacy as to a fifteenth of the residue

Re Arnold, 9 Jur. N.S. 1868;
Glanville v. Glanville, 2 Mer. 38;
Russell v. Buchanan, 3 Law J. Rep.
(N.S.) Exch. 194;

Comport v. Austen, 12 Sim. 218, 246. Mr. Nugent appeared for trustees.

BACON, V.C., said that it had been argued that the word "vested" meant indefeasible; the word had no such unalterable meaning, but was to be governed by the intention of the testator, deduced from the whole will. After commenting on the words of the will, he

Fraud-Settled Account-Composition Deod-Bankruptcy Act, 1861—Jurisdiction.

A Court of Equity will, at the suit of the debtor, entertain a bill to open an account settled between a debtor and creditor, although the debtor has registered a composition under the Bankruptcy Act, 1861, and entered the creditor for the amount settled, and the composition has been paid, if it be shewn that the creditor was guilty of overcharges.

Decision of the MASTER OF THE ROLLS, 40 Law J. Rep. (N.S.) Chanc. 450, affirmed.

This was an appeal from a decree of the Master of the Rolls, reported 40 Law J. Rep. (N.S.) Chanc. 450.

The plaintiff, a hop merchant, being in difficulties in 1867, arranged to compound with his creditors, paying them 88. in the pound, and a deed was accordingly executed, assented to by the statutory majority of the creditors, and registered under the Bankruptcy Act, 1861. The defendant was a commission agent, and claimed 3007. on the balance of acconts between himself and the plaintiff, and he was accordingly scheduled for the amount, and received the composition. The plaintiff had since discovered that many of the accounts furnished to him by the defendant were false and contained overcharges, and instituted this suit for a true account.

The chief defence raised on the part of the defendant was that the Court of Bankruptcy and not the Court of Chancery was the proper Court in which to take proceedings. The Master of the Rolls, however, made a decree, directing an ac

count to be taken of all dealings and transactions between the plaintiff and the defendant up to the date of the composition deed, and if on taking such account it should appear that any account was settled between the plaintiff and defendant, either party was to be at liberty to surcharge and falsify.

Mr. Swanston, Mr. H. M. Jackson, and the Hon. E. Romilly, for the appellants, cited

Phillips v. Furber, Law Rep. 5 Chanc. 746;

Martin v. Powning, 38 Law J. Rep. (N.S.) Chanc. 212; s. c. Law Rep. 4 Chanc. 356;

Stone v. Thomas, 39 Law J. Rep.
(N.S.) Chanc. 168; s. c. Law Rep.
5 Chanc. 219;

Taylor v. Rundell, 19 W. R. 702;
Re Marks' Trust Deed, 35 Law J.
Rep. (N.S.) Bankr. 22;

Re England, 40 Law J. Rep. (N.S.)
Bankr. 65; s. c. Law Rep. 12
Eq. 207;

Lancaster v. Elce, 31 Law J. Rep.
(N.S.) Chanc. 789.

The Solicitor General (Mr. Jessel) and Mr. Robinson appeared in support of the decree, but were not called upon.

THE LORD CHANCELLOR.-I do not think that I need call upon the respondent, although I feel very strongly the necessity of watching closely a case of this kind, and of not encouraging a debtor who has made a composition with his creditors to fight them in detail afterwards. It is of course a question of importance what was the true amount of the assets as compared with the debts when the deed was executed. If they differed by a large amount from what was represented, the creditors might say they were induced to execute the deed upon a representation of facts different from the truth. All the creditors are interested in this question, and have a right to see that there is no mala fides in the transaction. But all this only amounts to saying that the case must be closely watched; and here the debtor is in no degree in default. There must have been some sort of account to go upon, and it must have been assumed that the defendant had given honest

and correct information as to the amount of the items. But the moment that overcharges were proved, there was, apart from the difficulty as to the composition deed, a clear case for opening the account. But two objections have been raised to this suit, first, that the case was one for the jurisdiction of the Court of Bankruptcy; and secondly-though this is only a more strengthened form of the same objection that the creditors would be affected in two ways; that they had a voice to say that the deed should be upset if it was entered into under a misapprehension of the facts, and also that if the amount of assets proved greater than was expected they had a right to share them. There was also a third argument suggested, that if the plaintiff were compelled, on taking the accounts, to pay the creditor in full, this would be an unfair advantage as against the other creditors. Mr. Swanston has pressed me with a dictum in Stone v. Thomas, that the application should in the first place be made to the Court of Bankruptcy to see if that Court could not do complete justice. But, like all other observations, that dictum must be read in the light of the case before the Court. If it is clear that the Court of Bankruptcy has not jurisdiction it would be useless to send the parties there, though that might be done in a doubtful case. Here it is not a trustee under the composition deed who is seeking to recover, but the debtor who retains his assets subject to the payment of a composition which has been duly made. Now if it turned out that one creditor had brought in a false claim, could the Court of Bankruptcy do full justice? The most it could do would be to order repayment by the defendant of the amount paid to him, and it could not order payment of anything found due from him on the account. I do not wish to curtail or interfere with the jurisdiction of the Court of Bankruptcy: and as to the other creditors, I do not wish to say anything to encourage or discourage any proceedings on their part; but I cannot see that the Court of Bankruptcy could do more than say that they were misled, and set aside the deed. That

would not satisfy justice between these two parties. Nor can I see what right this wrong-doer has to interpose these creditors, who do not complain, as difficulties in the way of doing justice to the plaintiff. I think it best to do as the Master of the Rolls has done, namely, to give the plaintiff his remedy, and let the creditors raise any question if they wish to do so. I do not wish to anticipate any questions which may arise. on further consideration; but supposing it turns out that the defendant knew there was a balance the other way, I think the deed might stand perfectly well after the accounts are set right. As to any surplus to remain after litigation, the creditors may take proceedings if they think fit to do so. The appeal will be dismissed with costs.

Specific Performance-Contract shewn by Letters.

Plaintiff, in a suit.for specific performance of an agreement to take a lease, put in two letters as evidence of the agreement. The first shewed all the terms of the agreement except the date at which the lease was to commence. The second referred to the former letter as applying to a lease to commence from "Michaelmas mext," but added several other terms, to which the plaintiff did not assent, as those on which the defendant was willing to complete : Held, that if the plaintiff put in a letter as evidence of the terms of the agreement he must take the whole of it; that the second letter was evidence of an agreement (if any) different from that sought to be enforced, and that, therefore, the plaintiff's bill must be dis missed.

This was a suit for specific performance of an agreement to take a lease of a house,

This letter leaving the date at which the lease was to commence uncertain, the plaintiff put in the following letter from the defendant to supply that term

"Ashmount, March 20, 1870.

"My dear Sir,-With reference to my note to you of last evening, which was so hastily entered upon and penned in your presence, with the suggested alteration made by your wish, I think it best, to prevent the possibility of any misunderstanding arising between us, to say that it is clearly understood on my part that you agree on my taking a lease of Cronstadt House for seven years from Michaelmas next, at 1201. per annum, to put it, with the outbuildings, fencing, palings, gates, &c., attached thereto, in all proper and tenantable repair, as shall be approved by my own surveyors, Messrs. Wigg & Pownall, 7, Bedford Row. I also conclude that I shall have all the accommodations that I now have here, such as a bath-room, which if you prefer can be taken from the house I am now оссиpying, with the pipes, leading, &c.; and as I did not go over the grounds, I conIclude that there are the usual outdoor offices, such as coach-house, harness room, stabling, with loose box, as I have here, tool-house, and conservatory heated with hot water pipes; that the gardens will be made perfect with plants and shrubs of the same quality and description as I have just planted at Ashmount, or those now recently planted afresh at Cronstadt House;