On the 1st of August, 1867, Edwin Hall and the mortgagee sold and conveyed the Cricketers' Arms Inn to Mr. W. Thompson, for 600l.; but with notice of the settlement. On the 16th of October, 1869, Edwin Hall executed a deed, which was duly registered under the 192nd section of the Bankruptcy Act, 1861. After the execution of the settlement the settlor retained it in her own possession, and received the rents and profits of the property during the whole of her life. She continued in the sole management and disposal of the property, and acted in such management and disposal without any reference to or the consent of the trustees therein named or either of them; and under the impression and belief that the settlement was revocable by her at any time, at her sole will, and that she had not thereby in any manner fettered or derogated from her full right to dispose of the same as she should think fit. Neither of the trustees of the settlement ever acted in the trusts of it [otherwise than by Lewis Hall instituting the first above-named suit]. In October, 1859, Eliza Hall, who was then very ill and confined to bed, sent for Mr. Humble, and directed him to prepare her will. She then told him that she "had done away with that old deed," meaning the settlement. There was some conflict on the evidence as to what he then told her, but it appeared that he did not inform her that she was in any manner prevented from, or incapable of, revoking the settlement. He accordingly prepared, and she executed a will; which, however, was afterwards revoked. Some time in the year 1861, 1862 or 1863 the settlor, with whom Ellis Hall was then living, took the settlement out of the chest of drawers in which she used to keep the same, and handed it to Ellis Hall-at the same time directing him to burn it. He accordingly, in her presence, and by her directions, put the settlement into the kitchen fire and covered it over with coals; and she and he watched while it was being burnt away. When it was consumed she said, "There is an end of that; or used words to that effect. She evidently believed at the time, not only that she had full power to deal with the settlement in any manner she pleased; but that by destroying the same in manner aforesaid she had actually revoked it. She and Ellis Hall were respectively utterly unacquainted with law, and neither she nor he was aware that the burning of the parchment, upon which the settlement was written, was not in itself sufficient to work a revocation of the provisions of the deed. She had not, when she gave instructions for the preparation of the settlement, or at any time afterwards (save as hereinafter mentioned) any legal advice whatever, other than that of Mr. Humble. He was not consulted by her as to the revocation of the settlement; and was not informed by her of the destruction of it. Under those circumstances he had no opportunity of advising her, and did not in fact advise her that such destruction of the settlement, as aforesaid, did not operate as a revocation of it. Moreover, the settlement not only contained no express power of revocation by the settlor but the settlor was not aware that an express form was necessary to enable her to revoke it. It did not occur to Mr. Humble to suggest to her, and he did not in fact ever suggest to her that the insertion of such a power in the settlement would be requisite or advisable; and he did not in any manner call her attention to the fact that such voluntary settlement, if executed as prepared, would be irrevocably binding on her; and did not take any means to discover whether she desired such settlement to be revocable or irrevocable. The whole family knew of the destruction of the settlement by the settlor and regarded it as a revocation. Jesse Hall pre-deceased Eliza Hall. He died a bachelor and intestate; and no letters of administration had been taken out to his estate. Lewis Hall, the plaintiff in the first suit, charged by his bill that the trusts of the settlement were in full force, and ought to be carried into execution; save in so far as such trusts might have been superseded or defeated as to such of the premises comprised in the settlement as were affected thereby by the mortgage mentioned or referred to in the will; and that inasmuch as Matthew Wm. Thompson had full notice of the settlement and of the claim of Lewis Hall thereunder before the completion of the contract for the sale of the hereditaments and premises sold to him, he was a trustee for Lewis Hall and his cestuis que trust under the settlement of the hereditaments and premises sold to him, or of so much of the purchase money of the hereditaments and premises as was not properly applied by him in discharge of the mortgage debt and interest, mentioned or referred to in the will. He therefore prayed (inter alia) by his bill for a declaration that the settlement was a valid one of the hereditaments and premises therein comprised; and that the trusts of it [subject only to the aforesaid mortgage] ought to be carried into execution; certain enquiries; accounts; the delivery up of the possession of the hereditaments and premises; a receiver; that if necessary the trusts of the settlement might be executed by the Court; for costs; for proper orders for the purposes aforesaid; and for further relief. The plaintiffs in the second suit (the infant children of Ellis Hall) by their bill submitted that the settlement was not binding upon the settlor, and that the trusts thereof ought not to be carried into execution as against the devisees under the will, but that on the contrary, the settlement ought to be set aside by the Court. If, however, the Court should be of opinion that the settlement was binding, and ought to be carried into effect, then those plaintiffs charged that Sophia Green and Ruth Hall ought to elect between the benefits given to them by the will and those to which they were or claimed to be entitled under the settlement; and if they or either of them should elect to take against the will, then the annuities or annuity so given to them or her, as aforesaid, ought to be applied in or towards making good to the plaintiffs the benefits given to them by the will, and of which they would be deprived by the operation of such election. The bill in that suit, therefore, prayed a declaration that the settlement was not binding upon the settlor, or those claiming under her, and that the trusts of it ought not to be carried into execution as against the devisees under the will; that the settlement might be set aside; that her will might be established by the decree of the Court; that if the Court should be of opinion that the trusts of the settlement ought to be carried into effect, Sophia Green and Ruth Hall respectively might be required to elect between the benefits given to them respectively by the will and the benefits to which they respectively claimed to be entitled under the settlement; that if they, or either of them, should elect to take under the will, then the property to which they or she would be entitled under the settlement might be dealt with as directed by the will; but if they, or either of them, should elect to take against the will, then that the benefits given to them or her by the will might be applied in or towards making good to the plaintiffs what they should have been deprived of by the operation of the settlement; that in such last mentioned case an account might be taken of all sums of money already received on account of all the annuities respectively by them or her so electing to take against the will; and that they or she might be directed to repay to the trustees what should appear to have been received by them respectively at foot of such account; that the bill in that suit might be taken as a cross bill to that in the first suit, and that the plaintiffs might have such further or other relief as the nature of the case might require. The principal arguments of the case were delivered in the second suit. Mr. Greene and Mr. Morshead were for the plaintiff in the first; Mr. Miller and Mr. V. Hawkins, for the chief defendants in it; Mr. Lindley and Mr. F. A. Lewin, for M. W. Thompson, cited Gordon v. Horsfall, 5 Moore P.C. 393; Doe v. Lewis, 11 Com. B. Rep. Troughton v. Binkes, 6 Ves. jun. 573; Mr. Greene was heard in reply. Mr. Miller and Mr. V. Hawkins, for the plaintiffs in the second suit.-There are two sorts of voluntary settlements; first, Where the object is to protect the settlor against himself. Secondly, Where the settlement is quasi testamentary, and merely a matter of bounty on the part of the settlor. In the first case, the settlement should be made "irrevocable." In the second, the settlor must be proved to have been thoroughly well advised, to have understood what he was doing when he executed the settlement, and to have intended to exclude (if it be excluded) any power of revocation. The present case belongs to the second class. The evidence shews that this settlor was wholly without proper advice. Mr. Humble really advised her wrongly, and she always acted as if and thought the settlement was, in fact, revocable. It was a quasi testamentary disposition of her property, and not therefore intended by her to be irrevocable. For those reasons it must be set aside by the Court, and her will must be upheld. They then cited Phillips v. Mullings, 41 Law J. Rep. (N.S.) Chanc. 211; s c. Law Rep. 7 Chanc. 244; Coutts v. Acworth, 38 Law J. Rep. (N.S.) Chanc. 694; s. c. Law Rep. 8 Eq. 558; Wollaston v. Tribe, Law Rep. 9 Eq. 44; Everitt v. Everitt, 39 Law J. Rep. (N.S.) Chanc. 777; s. c. Law Rep. 10 Eq. 405; Mountford v. Keene, 19 W. R. 708; Naldred v. Gilham, 1 P. Wms. 577; Cecil v. Butcher, 2 J. & W. 565; Nanney v. Williams, 22 Beav. 452; Forshaw v. Welsby, 30 Beav. 243; s. c. 30 Law J. Rep. (N.S.) Chanc. 331; Toker v. Toker, 31 Beav. 629; s. c. 32 Law J. Rep. (N.S.) Chanc. 322; s. c. on appeal 3 De Gex, J. & S. 487; Anderson v. Elsworth, 7 Jur. N.S. 1047. Moreover, the family all treated the destruction of the settlement as a revoca tion of it, and they, at all events, cannot now be heard to say it is valid. But if the Court should think it is, then the defendants, Sophia Green and Ruth Hall, must clearly be put to their election. The plaintiffs in our suit are infants, and we were obliged to institute the crosssuit if we wished to obtain a decree to set aside the deed Re Way's Trusts, 2 De Gex, J. & S. 365; s. c. 34 Law J. Rep. (N.S.) Chanc. 49. Mr. Greene and Mr. Morshead, for the defendants, Lewis Hall and others.-The arguments based on the distinction between the two classes of voluntary settlements do not apply here, because this was a case in which the settlor's instructions to her solicitor were plain, to the effect, that she wished once and for all, to provide for her children after her death. The destruction of the deed was no revocation. That cannot for a moment be insisted on. But then there is no other act of the settlor which can be urged as a proof that she did not mean it to be irrevocable. It is true that she mortgaged the property, but inasmuch as the settlement was one of realty, and she had a life interest reserved to herself by it, she was quite competent to do that. competent to do that. What the family thought of the transaction of the burning is quite unimportant. If the Court is satisfied on the evidence (and we submit it is sufficient), that there was the deed, and that it was to the effect alleged, it must uphold it. They then commented on and distinguished from the present one the cases cited by the plaintiffs, and referred to Sear v. Ashwell, 3 Swanst. 411 Bolton v. Bolton (ibid.), 414; Jefferys v. Jefferys, 1 Cr. & Ph. 138. WICKENS, V.C.-Mr. Miller, I do not think I need trouble you. I have come very unwillingly to a conclusion, but I have come to a conclusion in your favour. A voluntary settlement of real estate, though containing no power of revocation, is always to some extent in the settlor's power; since he can sell or mortgage the property. Again, it is not easy to think that there is any legal presumption that the person ordering and executing a deed, though voluntary, believes that he has a power of revoking it at his pleasure. Taking these two propositions together it is not, I think, quite easy to recognise as sound the conclusion that the absence of a power of revocation from a voluntary settlement of real estate is prima facie proof of mistake, where a revocable settlement would answer the settlor's purpose as well as an irrevocable one; and that the prima facie proof of mistake can only be rebutted by shewing that the settlor had his attention pointedly called to this, that the deed, if it contained no power of revocation, would be irrevocable; and further, that his purpose might be effected by a revocable as well as an irrevocable deed. It is necessary, it seems, that fraud, surprise or mistake should be shewn. The want of a power to revoke does not of itself constitute or support such a conclusion. It is necessary that fraud, mistake or surprise should be raised and proved, before the deed is set aside on that ground; and that can only be done by filing a cross bill. That is clearly laid down in Re Way's trusts (ubi supra). The doctrine which I confess I think has been introduced since Sir Wm. Grant decided Worrall v. Jacob (ubi supra), is that, although a cross bill is necessary, there is in such a case a sort of presumption of mistake, which to a great degree, or entirely, changes the onus and throws a very peculiar burthen on the person who supports the settlement. The reasoning on which that conclusion is founded, is not perfectly satisfactory to my mind; but of course I am bound to follow the authorities, and I think that the result of them as applied to a case like the present is such as I have mentioned. Most of them have been cited and need not be further noticed. But I should observe that the judgment in Mountford v. Keene (ubi supra) is precisely in point; and is not, I think, inconsistent with anything that was stated in Phillips v. Mullings (ubi supra), nor do I consider that it loses its weight or effect, because there was ground for arguing that the plaintiff was not a mere volunteer; since the Master of the Rolls, it is quite clear, treated the plaintiff as a volunteer from beginning to end: one proof of which is (independently of his silence which would be sufficient) that the bill was dismissed without costs. I mean to say that the decree was made without costs. No doubt amongst the very numerous cases which were cited, there are shades of difference; as there must be where very ill-defined rules are applied to various settlements or circumstances. But the fair deduction from the cases altogether, especially from the more recent ones, seems to be such as I have already stated. It was argued in this case, that when Mrs. Hall executed the deed, she knew that she was doing by an irrevocable act what she might as well have done by a revocable act. But weighing as well as I can the evidence in the cases, and giving no more than fair weight, but giving a certain amount of weight to the inference from her subsequent conduct and expressions as to her intention at the time when she executed the deed, I cannot accede to this view. I doubt, in fact, if on that evidence I could even come to a conclusion that she knew the deed to be irrevocable when she executed it; which is something short of the knowledge required by the authorities to be in her mind at the time. Therefore without adverting to the very numerous points which have been argued some of them points of very great importance and of great difficulty— I think that I must hold this settlement to be invalid. Renewable Leaseholds-Trust-Tenant for Life-Purchase of Reversion. A was beneficially entitled to renewable leaseholds for three lives held on trust to renew, and subject to certain charges. All the cestuis que vie died. It being disputed whether the right to renew was lost, the reversioners granted a lease to A for three new lives, without prejudice to the disputed question. A subsequently bought the reversion:-Held, that the fee became subject to the charges. Thomas Trumper, the elder, held certain leaseholds from the Duke of Beaufort for three lives, the Duke being under covenant to renew at the dropping of each life. The leaseholds were, by a deed dated in 1805, assigned to a trustee as to part in trust for his sons, William Walwyn Trumper, the testator in this cause, and as to other part in trust for Thomas Trumper, the elder, for life, and after his death on trust to renew the lives, and then to raise 1,500l., and subject thereto in trust for William Walwyn Trumper. By a settlement dated in 1811, William Walwyn Trumper, NEW SERIES, 41.-CHANC. the testator, assigned his interest in the leaseholds to trustees, on trust after the death of himself and his intended wife to raise 2,000l. for children of the marriage other than the eldest son, as the husband and wife should appoint, or in default, as the survivor should by will appoint. And subject to the 2,000l. on trust for the defendant, Thomas Trumper, their eldest son. After his father's death, William Walwyn Trumper paid off the 1,500, but kept the charge alive for his own benefit. All the cestuis que vie having died, a dispute arose between the then Duke of Beaufort and William Walwyn Trumper as to whether the right to renew continued. But the Duke, in 1818, granted a lease to William Walwyn Trumper, the testator, for three fresh lives, the question being kept open by the terms of the lease, whether the right to renew was forfeited or not. In the following year, William Walwyn Trumper, the testator, purchased the reversion in the premises from the Duke. In 1838, the testator and his wife, on the marriage of Mrs. Miles, his daughter, appointed 500l., part of the 2,000l. to her, which she assigned to trustees: he also settled 6007., part of the first charge of 1,500l., on her. In 1845, all parties interested in the premises, except the trustees of Mrs. Miles's settlement, joined in a mortgage of the premises, subject only to the 6007. and 5001. comprised in that settlement, to secure 4,5007. In 1856, after the death of his wife, the testator, William Walwyn Trumper, made his will, by which he appointed 1,500l., the unappointed part of the 2,000l., among three of his children: he bequeathed 9007., the remainder of the original charge of 1,500l., and charged a further sum of 5001. on the premises for the benefit of two of his children, and he devised the fee, subject to the above charges, to his eldest son, the defendant, Thomas Trumper. The testator died in 1859. Some time after his death, his eldest son disputed that the fee was liable to the charges of 1,5001. and 2,000l. He also contended that the charge of 1,5001. had not been kept alive. The bill was filed to determine these questions. 4 R |