fendants upon trust to sell and convert the same, and invest the proceeds as therein mentioned. And he gave the income of his said residuary estate to his sister-in-law, the plaintiff, Elizabeth Palmer, during her widowhood, and after the determination of her interest, upon trust to appropriate or purchase a sufficient. sum of Consols to procure an income of a certain amount for the benefit of his nephew, the plaintiff, William H. F. Palmer, and subject to the trusts aforesaid the testator divided his said residuary estate into two moieties, and disposed of the same amongst his nieces and their husbands and children, who were defendants to this case. The will then contained the following proviso:-"Provided always and I declare that for making a further provision for the advancement of my said nephew, William Henry France Palmer, and notwithstanding the trusts and provisions in favour of my said sister-in-law, Elizabeth Palmer, and of my said nieces and their respective husbands and children, it shall be lawful for my said trustees or trustee, during the life of the said Elizabeth Palmer, upon her request in writing, and, after her death, at the discretion of the said trustees or trustee, from time to time, to expend any sum or sums of money out of my residuary estate, so that the aggregate amount so expended do not exceed 6,500l., in the purchase of any commission or commissions for or in obtaining the promotion of the said William Henry France Palmer in Her Majesty's army, and I declare and direct that every sum so expended shall, as to one-third thereof, be taken from the half part of my residuary estate hereinbefore referred to or distinguished as the first moiety, and as to the other two-third parts thereof be taken from the half part of my residuary estate herein before referred to or distinguished as the second moiety."

The testator died on the 3rd of January, 1868. At the time of his death his nephew, W. H. F. Palmer, was a lieutenant in Her Majesty's regiment of the 68th Light Infantry. He subsequently, and with the view to more speedy promotion, exchanged such commission for the commission of a lieutenant in Her Majesty's cavalry regiment of the 14th Hussars, and for this purpose

paid on the 15th day of February, 1868,

the sum of 6001. as the consideration for the exchange. The said plaintiff also paid sums altogether amounting to the sum of 5501. for purchase of horses and otherwise for his outfit on the occasion of his joining the said cavalry regiment.

The plaintiff, Elizabeth Palmer (who was still a widow), made to the defendants, W. Flower and R. Fisher, a request in writing, dated the 30th day of May, 1868, "to pay to the said W. H. F. Palmer out of the testator's residuary estate the sum of 6,500l., with interest at 4 per cent. per annum from the date hereof, or at all events to pay to him out of such residuary estate (and free from legacy duty) the sum of 6001. paid or expended by him, since the death of the said testator, in effecting an exchange of the commission recently held by him of a lieutenant in Her Majesty's regiment of the 68th Light Infantry for the commission of a lieutenant he now holds in Her Majesty's cavalry regiment of the 14th Hussars, and the sums either already or to be hereafter expended by him in purchasing horses and providing his outfit on joining the said cavalry regiment, with interest thereon at the rate aforesaid from the times of such amounts being respectively paid or expended."

This request was served on the testator's executors on the 9th of February, 1869. The executors admitted that the testator's residuary estate when realized would be sufficient for the purpose of answering the payments requested as aforesaid, but they declined to make such payments except with the sanction of the Court. Consequently this Special Case was filed by William H. F. Palmer and Elizabeth Palmer, as plaintiffs, against the executors and the several beneficiaries under the testator's will, and the following questions were thereby submitted to the Court for determination :

1. Whether the plaintiff, W. H. F. Palmer, under the circumstances aforesaid, was or not absolutely entitled to receive the whole of the 6,5007. out of the testator's residuary estate. 2, 3. Whether the same plaintiff was or not entitled to be repaid the whole, or any and what part, of the two respective sums of 6001. and 550l., so

paid by him as aforesaid for his exchange and outfit? 4. Whether or not he was entitled to interest upon the sum or sums, if any, so to be paid to him; and if so, from what time and after what rate such interest should be computed? 5. Whether such sum or sums, if any, which the same plaintiff was entitled to receive as aforesaid, was or were given to him free from legacy duty? 6. How the costs of the Special Case were to be provided?

There were infants who had come into being after the Special Case had been set down.

Mr. Kay and Mr. Kingdon, for the plaintiff, contended that the terms of the testator's will had been completely complied with when Mrs. Palmer requested the executors to pay the money; and that, although the purpose of the gift had failed as regarded future payments, by the abolition of purchase in the army, the plaintiff, W. H. F. Palmer, was entitled to have the whole 6,500l. paid to him. Where a sum of money was bequeathed for a specified purpose, which was solely for the benefit of the legatee, he could claim the gift without applying it to the purpose. They cited

Roper and White's Legacies, vol. i. p.
646, 4th ed.;

Barlow v. Grant, 1 Vern. 255;
Nevill v. Nevill, 2 Vern. 431;

Burton v. Cooke, 5 Ves. 461;

Leche v. Lord Kilmorey, Turn. & R. 207;

In re Sanderson's Trusts, 3 Kay & J.
497; s. c. 26 Law J. Rep. (N.S.)
Chanc. 804;

Cowper v. Mantell, 22 Beav. 231;
See also Jarm. on Wills, vol. i. 367-8,

3rd ed.;

Seton on Decrees, 708.

The infants need not be made parties to the case, since their interests were already represented by some of the defendants, and it had been held that the provisions of the Chancery Improvement Jurisdiction Act (Statute 15 & 16 Vict. c. 86. s. 51) applied to a Special Case

In re Brown's Trust, 29 Beav. 401. Mr. Willcock and Mr. P. Dickins appeared for the executors.

Mr. S. H. Boult, for the other defendants.

BACON, V.C. (without calling for a reply). The question must be answered in favour of the plaintiff, who claims the 6,500l. The words of the will are clear enough. [His Honour read them.] The sole judge constituted by the testator as to the propriety of giving the 6,500l. is Mrs. Elizabeth Palmer, and by her letter she expressed her determination to do so; for she calls upon the trustees "to pay to Mr. Palmer, out of the testator's residuary estate, the sum of 6,500l., with interest at four per cent. per annum from the date hereof." As has been said, a literal application of the 6,500l. cannot now take place by reason of the change in the law. That change has not been produced by any act or default of the legatee, who is still in Her Majesty's Service. Although promotion cannot now be purchased with the money, yet the money may properly be applied for his advancement in the service in other ways. What influences my mind is, that Mrs. Elizabeth Palmer is the person to require the money to be paid, and she has required it. I think, therefore, the plaintiff is entitled to receive the 6,500l.

Solicitors-Messrs. Palmer, Palmer & Bull, for plaintiff'; Mr. J. B. Marsden, for other parties interested.

Locke King's Act, 17 & 18 Vict. c. 113, and the Amendment Act, 30 & 31 Vict. c. 69. Interest in Land-Conversion-Mortgage-Exoneration.

B., entitled under a deed of 1831 to a share in real estate directed to be sold, mortgaged it, having by his will specifically given it to C. By the same will he gave all his residuary estate and effects to trustees upon trust, "for payment thereout of all my just debts subject thereto for L." :-Held, that Locke King's Act and the Amendment Act only apply to an interest in land taken as land, and that this property having been converted in equity, did not come within those Acts, and that C. was entitled to have it exonerated from the mortgage debt out of the residuary personal estate.

Semble, the Amendment Act, 30 & 31 Vict. c. 69, applies where there is a general direction for payment of debts, out of real and personal estate.

Quære, whether Locke King's Act applies to leaseholds.

By a marriage settlement dated the 5th of July, 1831, certain real estate was settled upon trust after the death of John Lewis and Elizabeth Lewis, to sell and divide the proceeds between their children who should attain twenty-one, with a proviso, that if the major number of such children should desire that the property should not be sold, and within three months after the death of the survivor of their parents give the trustees notice in writing thereof, the trust for sale should determine, and the property should not be sold, and it was further declared that if the children should prefer that the property should be sold, the same should until sale be considered personal estate. Elizabeth Lewis died in 1837. Three of the children attained a vested interest in the property, and one of them died intestate in the lifetime of her father John Lewis, leaving him her heir-at-law and sole nextof-kin. John Lewis, by his will, dated the 11th day of December, 1862, gave the share which he took on this child's death specifically to trustees upon trust, sold with the entirety of the estates," to sell, and he directed them to hold the proceeds of the share when sold upon trust for Sarah Cole for life, and after her decease for her son, A. F. Lewis, alias Cole, absolutely, and disposed of his residuary estate in the following words: "and as to all the rest, residue and remainder of my estate and effects, whatsoever and wheresoever situate, I give, devise and bequeath the same to my said trustees upon trust, to hold the same to them, their heirs, executors, administrators and assigns, according to the natures and qualities thereof respectively upon trust, after payment thereout of all just debts funeral and testamentary expenses and subject thereto for my said son, John Leonard Lewis, absolutely."

if not

After the date of his will, John Lewis mortgaged the share. He died on the 14th of February, 1870, leaving two

children, the defendants, J. L. Lewis and Elfrida Lewis, surviving him. The children did not exercise the option given by the settlement of July, 1831, of taking the property as land within the three months after the death of their father, their surviving parent, but consented in writing to its being sold. The question now arose whether the share was taken by Sarah Cole and her son A. F. Cole, subject to the mortgage debts, or whether they were entitled to have these debts paid out of the residuary estate of the testator. The bill was filed by the trustees to have this point decided.

Mr. White, for the trustees.

Mr. Glasse and Mr. Lindley, for the residuary devisee and legatee. This is an interest in land within Locke King's Act, even though it may be that, according to the doctrine of this Court, it is for some purposes to be considered as converted. It has been decided that such an interest is an interest in land within the Mortmain Act which is analogous to this. Under these circumstances, the donee of the share in question is not entitled to have it discharged from the mortgage debt out of the personal estate: There have been conflicting decisions on Locke King's Act, and the Amendment Act has been passed to reconcile them and restore the law to the proper rule as laid down in

Woolstencroft v. Woolstencroft, 2 De Gex, F. & J. 350; s. c. 30 Law J. Rep. (N.S.) Chanc. 22; that a general direction for payment of debts is not an expression of a trary intention" within the excepting proviso in Locke King's Act.

con

Doubt was thrown upon that case by the decision in

Eno v. Tatham, 32 Law J. Rep. (N.S.) Chanc. 311; 4 Giff. 181. The two were attempted to be distinguished in

Brownson v. Lawrance, 37 Law J. Rep. (N.S.) Chanc. 351; s. c. Law Rep. 6 Eq. 1. But in fact they are inconsistent, as was pointed out in the case of

Maxwell v. Hyslop, Law Rep. 4 Eq.

415; (affirmed by the House of Lords nom.

Maxwell v. Maxwell, Law Rep. 4. E. & I. Ap. 506) ;

in which case

Eno v. Tatham (ubi supra)

was reluctantly followed. Now by the Amendment Act, 30 & 31 Vict. c. 69, Eno v. Tatham and that class of cases has been removed out of the way, and the law has been settled in accordance with

Woolstencroft v. Woolstencroft (ubi supra);

that a general direction for payment of debts shall not amount to a declaration "of contrary intention," so as to exclude the operation of Locke King's Act.

Mr. Cole and Mr. Kekewich, for Sarah Cole and Albert F. Cole.-Locke King's Act does not apply, because the property is clearly a sum of money and not an interest in land within the meaning of Locke King's Act, and it is clear from the words of that Act it can only apply to real estate, for it speaks of property coming to the "heir or devisee.”

[MALINS, V.C.-Does it not apply to leasehold estates?]

No, there were leaseholds in Woolstencroft v. Woolstencroft (ubi supra), but the question was not argued. However, if it be an interest in land, the direction for payment of debts in the residuary gift excludes the operation of the Act, and the Amendment Act only applies to a direction for payment out of personal estate only. Here the direction is for payment out of real and personal estate, therefore the Amendment Act has no application. The Amendment Act not applying, it is clear on the authorities that the words in the gift of the residue are sufficient indication of "contrary intention to exclude the operation of Locke King's Act.

Allen v. Allen, 30 Beav. 395; s. c. 31 Law J. Rep. (N.S.) Chanc. 442

is precisely in point, and the law is settled by the decision of the House of Lords in

Maxwell v. Maxwell (ubi supra).
They cited also

Eno v. Tatham (ubi supra);
Stone v. Parker, 1 Dr. & S. 212;
Mellish v. Vallins, 2 Jo. & H. 194.
Mr. Glasse, in reply. - The Coles take
the share under the will, not under the

As to the operation of the Amendment Act, it says a direction for payment of debts "out of personal estate" shall not be considered a declaration of contrary intention. Here there is a general direction for payment out of personal estate. It would be frittering away the Act to say it does not apply, because there is a direction for payment out of real estate as well as personal estate.

MALINS, V.C., after stating the facts and reading the material clauses of the settlement and will, said-The land was by the settlement of 1831 converted into money; the testator took it under that deed as money, and Sarah Cole and A. F. Cole take it under his will as money. The question is, whether they are to take it subject to the mortgages made by him, or are to have it exonerated from them out of the residuary estate. Mr. Glasse and Mr. Lindley have argued that the share given to them is an interest in land within the meaning of Locke King's Act, and that consequently under that Act the donee must take it subject to the mortgages, unless a contrary intention be shewn by the will; and they further argue that the general direction in the residuary gift for payment of debts does not, since the Amendment Act, amount to an expression

(1) In that case freeholds and leaseholds were given together and this point was not argued, and see Solomon v. Solomon, 33 Law J. Rep. (N.S.) Chanc. 473.

of "contrary intention" within the meaning of Locke King's Act, although they admit that it would have been construed to be such an expression before the Amendment Act was passed. The first question, therefore, to be decided is, Is this an interest in land within the meaning of Locke King's Act? for if not, the case is clear-neither Locke King's Act nor the Amendment Act applies. It is a simple and specific gift of a chattel subject to a debt, and the donee is entitled to have his specific bequest exonerated from that debt out of the general estate. Now the property undoubtedly is in some sense an interest in land, for it consists of the proceeds of sale of land. It is certainly also an interest in land within the meaning of the Mortmain Act of 9 Geo. 2, but it does not follow, therefore, that it is an interest in land within Locke King's Act; and I am of opinion that it is not within the Act. The property given in trust for sale by the settlement was clearly converted by the settlement. The persons entitled to the proceeds under that deed take them as money, and the property cannot be reconverted without the consent of all those persons. The testator took the share, therefore, as money, and it passed by his will to the donee as money. I think, therefore, it is not an interest in land within Locke King's Act; not that I mean to say that no kind of personal estate is touched by that Act. I am inclined to think it applies to leasehold estates; but what I think is, that it only applies to property which is taken by the donee as land. The words of Locke King's Act clearly contemplate the case of an interest in land being taken as land. Here the property is converted; it is not taken as land, but as money, therefore the Act does not apply; and therefore the donee is entitled to have it exonerated out of the personal estate from the mortgage. This being my opinion, it is not necessary to consider the question as to the effect of the Amendment Act, 30 & 31 Vict. c. 69; but as it has been argued before me, I may as well say that on this point I agree with Mr. Glasse. I think the words in that Act, "a general direction that the debts, or all the debts of the testator, shall be paid out of his

personal estate, shall not be deemed to be a declaration contrary to or other" than the rule established by the said Act— I think that these words would include a case such as this, where the gift of the residuary estate is subject to payment of the debts out of both real and personal estate.

The following order was made:

Declare that the mortgage debts which affected the testator's one-third share of the proceeds of sale of the hereditaments in the bill mentioned are payable out of the testator's residuary personal estate, in exoneration of such share. Let the plaintiffs, as executors, out of the residuary personal estate raise and pay the amount of such debts, and also the costs of all parties to the suit. The costs of the plaintiffs and Mr. Glasse's clients as between solicitor and client.

Solicitors-Messrs. Prior, Bigg, & Co., for trustees; Messrs. Brown & Waters, agents for T. Waters, Winchester, for the residuary legatee and devisee.

MALINS, V.C. 1871. Dec. 5.

Re THE IMPERIAL LAND COM-
PANY OF MARSEILLES.
TOWNSEND'S CASE.

Contributory-Offer to take SharesRevocation of Offer-Contract.

A company being in course of formation, T., in March, 1866, sent a written application for shares, giving an imperfect address. Shares were allotted to him, and notice of the allotment posted on the 16th of March to the address given on his application. This should have reached him on the 17th, but owing to this address being imperfect, it did not reach him at all. Another letter was posted on the 20th, which reached him on the 21st. On the 20th he posted a letter to revoke his application for shares :-Held, that as the notice of the 16th would have reached him but for his giving a wrong address, its being posted must be taken as good notice to him, and that his revocation was too late.

Held, also, that when a person has applied for shares, and they have been allotted to him, and notice of the allotment has been posted to and received by the allottee, the date at which the contract to take the shares is completed is the time of the posting the