Parker, do hereby give you notice that I have accordingly agreed to bid at such sale for the use of the said Cornelius Parker." It is signed by Cornelius and Lysimachus. This was, I take for granted, communicated to the persons assembled in the auction room. One of the conditions of sale is that, if the purchaser should require any term already assigned to attend the inheritance to be reassigned or surrendered, he was to bear the expense of it, and the agreement was to be signed by the vendor and purchaser. It was in these terms: "It is hereby declared and agreed by and between Cornelius Parker, the trustee and owner of the estate and premises mentioned in the within particulars, and Robert Tomlinson," and so on-the purchasers-"that they have become the purchasers of the within particulars described, for a sum of 2957., according to the conditions of sale, and these shall be taken as the terms of agree. ment for the sale and purchase respectively by private contract, to be observed and fulfilled by the parties respectively in all things, and the said Cornelius Parker shall prepare and pay the expense of the said conveyance." Thereupon it is acted upon accordingly. Similar conveyances were made to other purchasers of other portions of these hereditaments in 1839, 1840 and 1848, for which the draft deed which I have read mulatis mutandis seems to have served as a model. All these indentures were executed by Cornelius Parker, and in August, 1846, on an inclosure of common lands, 21 acres and 1 rood were awarded by the Commissioners to Cornelius Parker in trust for Lysimachus Parker, in respect of the hereditaments contained in the said indenture of release of the 11th of February, 1829. Lysimachus Parker executed his will on the 8th of January, 1859, and by it he devised unto Cornelius Parker and his co-defendant all his lands and hereditaments, including the lands and heredita ments in question in this suit, upon certain trusts in his said will declared, and he appointed them executors of his said will. The testator died on the 16th of August, 1860, and his will was duly proved on the 8th of December, 1860, by the defendants. This suit was instituted on the 17th of May, 1871, by the plaintiff, who is the heir-at-law of William Locking, to recover these estates, or the purchase money produced by the sale of them, after accounting for the amounts due on the said mortgage securities. The words of the 28th section of the statute I need not read, for everybody is very familiar with them. It expressly bars the mortgagor at the end of twenty years from the time of taking possession or from the time of the last acknowledgment. But this section is controlled by the 25th section, which is in these words: "Provided always and be it further enacted that when any land or rent shall be vested in a trustee upon any express trust, the right of the cestui que trust, or any person claiming through him, to bring a suit against the trustee or any person claiming through him, to recover such land or rent, shall be deemed to have first accrued according to the meaning of this Act at and not before the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him." * This section appears to me to govern this case. It is impossible, in my opinion, in referring to the facts I have mentioned, not to come to the conclusion that, under the deed of the 11th of February, 1829, Cornelius Parker was a trustee of these estates and hereditaments for the purposes mentioned in the deed, the last of which was for William Locking and his heirs. It is also impossible to say that Corne lius Parker did not accept the trusts; it is true that he did not execute the deed in question, but he took upon himself to act as trustee, and is expressly stated so to be in the deed of 1832 executed by him, and in that character he conveyed the hereditaments to the purchasers from Lysimachus. He called himself trustee in the conditions of sale in the agreement executed on the occasion of the sale, and he was, I think, also in possession of the estate itself as trustee; but I am of opinion that, on the authority of Garrard v. Tuck (ubi supra), the possession of Lysimachus Parker, under the circumstances here set forth, must be treated as possession under the deed of the 11th of February, 1829, and consequently as the possession of the trustce, who might have called on him to deliver up possession, and might himself have been called upon to account for the receipt of the rents and profits. If a suit had been instituted to recover the property within two or three years after the execution of the deed of February, 1829, it is clear that it would not have been a suit to redeem, but a suit to execute the trusts of that indenture. If all the property had been sold, and the money paid into Court, it is clear that the trust would have permanently attached to the money until all the trusts were executed, and that the execution of them would have been compelled by this Court. It can make no difference that only a portion was sold, and the produce of that portion paid to Lysimachus Parker, which went in discharge pro tanto of the mortgage money due to him; it was, in fact, a partial execution of the trusts of the indenture. I am unable to fix any time when to draw a line, that the twenty years mentioned in the 20th section of the statute are to begin to run. It would, I think, be impossible for Lysimachus Parker or his representative to set up the terms of 1,000 and 2,000 years, for they were in fact superseded by the provisions of the deed of the 11th of Febru ary, 1829, which are inconsistent with the subsistence of these terms. This point is settled by Nicholls v. Atherstone (ubisupra). These terms were also, as it appears, assigned to the purchasers from Cornelius Parker to attend the inheritance. I think all the cases cited for the defendant, and on which he relies, are distinguishable. The case of Burroughes v. McCreight (ubisupra), is a case between tenants in common and coparceners, and there was clear adverse possession. In this case I think it clear that the land was vested in Cornelius Parker as trustee upon an express trust, and that at no period did time begin to run to bar the real owner, William Locking, and his heirs, except as regards such pieces of the land as were conveyed by Cornelius Parker to purchasers for value when adverse possession began. I I am of opinion, therefore, that the plaintiff is entitled to a decree, declaring that the trusts of the indenture of February, 1829, ought to be carried into execution so far as they remain unexecuted, and also that the defendant, Cornelius Parker, was a trustee for William Locking, his heirs, and assigns, of the remainder of the estates, after paying the sums stated in the deed, and that he must account accordingly, and that the estate of Lysimachus Parker must account for what, if anything, on taking such account, shall appear to have been received by him in excess of what he was entitled to under the trusts of the said indenture. thought at first I ought to make a decree without costs, considering the time which has elapsed; but the general rule is strict that where a trustee refuses to account and disputes the right of his cestui que trust to account, he must pay the costs of resisting such an account. And this case is peculiar, for a lapse of upwards of forty years has taken place without William Locking and his heirs calling on the trustee to account. But still I think I must follow the rule as it is the duty of a trustee to account without being called upon to do so, and as Lysimachus Parker has got all the benefit of the transaction, I think that his estate ought to bear the costs. I think, therefore, that in taking the account of his estate, though I have no power in this suit to make such a decree, the defendant ought to be allowed the costs of resisting this suit; but as I have no jurisdiction over that suit in this case, I shall only make the decree, with costs, up to and including the hearing to be paid by Cornelius Parker, but the costs of taking the account will fall on the trust estate itself. Solicitors-Messrs. Dickson & Lucas, agents for Mr. W. Hyde, jun., Louth, for plaintiffs; Messrs. Collyer-Bristowe & Co., agents for Mr. J. H. Bell, Louth, for defendants. Affidavit-Foreign Parts-15 & 16 Vict. c. 86. s. 22. Statutory declaration made in New South Wales by husband and wife allowed to be annexed as an exhibit to an affidavit filed in the cause. The plaintiffs, husband and wife, being residents in New South Wales, made in that colony in November, 1871, a statutory declaration that no settlement or agreement for a settlement whatever was made or entered into before or since their marriage. The declaration had been formally certified by a notary public in the colony. Everitt now asked to be allowed to file the document as an affidavit. Specific Performance-Contract shewn by Letters-Statute of Frauds. The plaintiff in a suit for specific performance of an alleged agreement for a lease, put in as evidence of the agreement two letters written by the defendant, the first of which shewed all the terms of the agreement, except the date at which the term was to commence. The second referred to the former letter as applying to a lease to commence from "Michaelmas next," but added several other terms, to which the plaintiff did not assent. The plaintiff adduced evidence that a complete verbal agreement had been made upon the terms contained in the first letter, with the additional term of (1) 11 W.R. 97. "Michaelmas next," being the date of the commencement of the intended lease. This evidence was not undisputed by the defen dant: Held, affirming the decision of the MASTER OF THE ROLLS, that there was no completeagreement within the Statute of Frauds, for that if the plaintiff sought to rely upon the second letter, he must take the whole of it, and then there were imported into the negotiation terms which had never been agreed to. This was an appeal from the decision of the Master of the Rolls reported ante, 173. The former report contains a statement of the facts, to which it may be added that the plaintiff adduced evidence to shew that on the 19th of March, previously to the letter of that date being written, the conversation between the plaintiff and defendant amounted to a complete agreement on the part of the defendant to take a lease of Cronstadt House upon the terms contained in the letter of the 19th of March, the lease to commence on the following Michaelmas day. This evidence was met by some evidence on the part of the defendant, tending to contradict it. Mr. Danney (Mr. Southgate with him), repeated the argument in the Court below, relying principally upon the case of Warner v. Willington, 25 Law J. Rep. (N.S.) Chanc. 662; s. c. 3 Drew. 523, as shewing that a letter may be used to show what was the term omitted in a previous incomplete memorandum of agreement, even though such letter contains a repudiation of such agreement, if the agreement had been really made between the partics. respondent, were not called upon. Mr. Fry and Mr. A. T. Watson, for the JAMES, L.J.-The agreement which in this case is alleged as the ground work of Now it is admitted that all the terms of the the bill, is an agreement by letters. agreement are not all contained in the first letter, but it is said that the omitted term is contained in a second letter. That second letter, however, clearly shows that the partics differed as to the Will-Construction-Annuity to Testator's Wife for Life so long as she and his Son should live together-Death of Son. A testator, by his will, bequeathed the income arising from 8,000l. to his wife during widowhood. By a codicil he gave her an annuity of 1001, during her life, in addition to the provision made for her by his will, so long as she and his son, E., should live together; but if they should cease to reside together the annuity was to cease. The son died in the widow's lifetime, having lived with her till his death :-Held, that the annuity did not cease upon his death. This was the further consideration of a suit for the administration of the estate of James Sutcliffe. The testator, by his will, dated the 5th of November, 1863, directed his trustees to invest the sum of 8,000l., part of his residuary estate, and pay the interest thereof to his wife "for her life, if she should so long continue his widow," and subject to the interest given to his said wife, he gave the sum of 2,000l., part thereof, to their son, Edwin Sutcliffe, for his own use, to be paid to him on the death or marriage of the testator's wife. By a codicil, dated the 19th of June, 1864, the testator directed his trustees "to pay to his wife yearly during her life, the sum of 1007. out of the income of his residuary estate (in addition to the provision made for his said wife by his said will) so long as his said wife and his said son, Edwin, should live together; but if they should cease to reside together, he directed that the said payment should cease." The testator died on the 28th of June, 1864. His son, Edwin, continued to live with the testator's widow down to the 14th of April, 1869, when he died. The only question now to be decided was whether the annuity to the widow had ceased. Mr. Kay and Mr. Jolliffe, for the plaintiff, the testator's widow, were stopped by the Court. Mr. Mackeson and Mr. T. C. Wright, for the defendants, the trustees and executors of the will, contended that the annuity had ceased by the son's death. BACON, V.C., said he could not agree with that contention. The intention of the testator was clearly to give the widow an annuity for her life, the annuity being an addition to the provision which he had made for his wife by his will, and which was to continue for her life. His Honour could not leave out of consideration the words "for her life." It had been argued that the son's death must have the same effect as if the widow and son had ceased to reside together. But the codicil pointed to some voluntary act on the part of the widow or the son which should put an end to their living together. And he could not qualify the gift to the widow, which was for her life, on the ground that a natural accident had prevented the possibility of the son living with the widow. That was an accident the testator had not provided against, and there must be a declaration that the widow was entitled to the annuity during her life. Solicitors-Messrs. Bower & Cotton, agents for Mr. C. H. Leeming, Halifax, for plaintiff; Messrs. Sewell & Edwards, agents for Messrs. Hill & Smith, Halifax, for defendants. [IN THE FULL COURT OF APPEAL.] HATHERLEY, L.C. JAMES, L.J. AND MELLISH, LJ. 1872. May 23. Re THE ENDOWMENT, CALLED Re 32 & 33 VICT. C. 56, AN Re THE CHARITABLE TRUSTS The Endowed Schools CommissionersThe Meyricke Fund, Jesus College, OxfordEnquiries as to-Jurisdiction-District. The decision of WICKENS, V.C., reported ante, p. 187, affirmed. The Bursar and the Principal, Fellows and Scholars of Jesus College, Oxford, appealed from the order of Wickens, V.C., in this case, reported ante, p. 187. A report of the case of The Attorney General v. Jesus College, Oxford, there referred to, will be found in 30 Law J. Rep. (N.S.) Chanc. 675, where the will and codicil of the Rev. Edmund Meyricke, the founder of the Meyricke Fund, are very fully set out. Mr. Osborne Morgan and Mr. Grenside, for the appellants, repeated the arguments used by them in the Court below. Sir Rondell Palmer and Mr. Lindley, who appeared for the respondents, were not called upon to support the Vice-Chancellor's order. THE LORD CHANCELLOR.-The appeal is from a decision of the Vice-Chancellor Wickens, who has held that certain endowments made by Mr. Meyricke, for the purpose of founding exhibitions, payable to young men educating at Jesus College, Oxford, which exhibitions are restricted NEW SERIES, 41.-CHANC. by his will to a particular portion of the Principality of Wales, namely the six northern counties of that principality, are within the operation of the Endowed Schools Act; and the question for us to determine upon this appeal is whether they are or are not within the operation of that Act. The argument has arisen principally upon this, that this Act contemplated merely funds which were devoted to the education of boys and girls, or boys or girls, at schools, although the education might have commenced at schools and afterwards terminated, as to boys or young men, at college; and as a consequence of the education being so terminated at college, exhibitions might be necessary or desirable for the maintenance of these young men whilst they were at college. But in another sense it is contended, and must be contended for the purpose of supporting the argument that has been addressed to us, that the exhibitions which are held at the university are not to be considered as included within the terms of the Act, so far as those terms relate to educational endowments, because it is said that it has been found in scanning the Act that in the 5th section of the Act, and in several other sections which have been pointed out to us in the course of the argument, although the principal reliance is upon the 5th, that it was really applicable to the supervision of schools that were benefited by endowments, and only consequentially, as it were, following up the subsequent education of the persons trained at those schools through the medium of exhibitions afforded to them for maintaining their place at the university. I confess it appears to me that nothing has been pointed out during the course of the argument which shews that any such restricted sense was contemplated by the legislature in the application of the term "educational endowments." Why, in the first place, one might ask, was so large a term adopted if it was intended to deal simply with schools and with persons educated there, and pursuing their course of study in their subsequent education? Why should not a term have been employed to confine and narrow it, as the argument 4 B |