VI H.L.C., 615 BAKER v. BAKER 111858)

what must have been meant ; because otherwise we must impute to the Legislature

an intention so capricious, not to say so absurd, tha t we can hardly suppose that it

could ever have entered into the mind of any person framing a law, because the

result mould be, that the object of the statute being to take care that all persons

advancing money shall have the means of knowing whether there are prior chargee

or not, although a person has purchased knowing that there is this prior charge,

the subsequent default of a formal act, which, as to him, was a mere formal act, is to

better his security, and for no object in the world. Questions used to arise of a

very difficult and delicate nature as to how far persons where affected by notice! of

prior jud,pents. The Legislature has very properly, I think, cut the knot and said

there shall be1 no question of notice; the only notice, available1 shall be notice upor1

the register. But when once you has5 got the notice upon the register, it seems

absurd to say that you must repeat the notice every five years; because when you

have once had notice, you know iha t there is an incumbrance upon the pi-operty, and

there it will reniain until it is paid off.

It appears to me, therefore, that the conelusioit at which the Court of Chancery,

the full Court, arrived in the mise of Berrwn 17. The Brtrf of Oafortl. i s the correct vien-,

and that conseqiiently, a p p l y i i ~ ~ that principle to the case now before your Lord-

ships, you must hold, that although Remnant has priority oTrer Shaw in respect to

his security registered before the 30th of January '1841, he has not priority in re6pect

of aiip subsequent incumbrance.

[SI51 The consequence will be, ns my noble and learned friend on the woolsack

has stated, that our declaration must be a declaration enabling Shaw to redeem

Remnant in respect of his prior securities, and then a subsequent direction that

Remnant map redeem Shaw upon paying to him all that he, Shaw, shall have paid

to redeem the first security, together with what is due to Shaw ; and then he will get

the estate, subject of course to that which in point of form must be introduced, but

which I am afraid is a mere matter of Ecrrm, that Neale may redeem the whole upon

the payment of all that is due. And with this declaration I think the decree of the

Master of the Rolls ought to be reversed.

Lord Wensleydale.-My Lords, I ani entireIy of the same opinion with rng noble

ancl leiarned friends, that the decree of the Master of the Rolls ought to be reversed.

I concur entirely in what has fallen from my noble and learned friend opposite,

upon the important questiori in this case, whether or not the case of Beitunit v. The

Earl of Oajord was properly decided. I consider that that was rightly decided.

That case ha8 been so fully explained by my noble and learned friend, as to make

it unnecessary for me to say anything more upon it. With respect to the other

questions in the ease which hare been so fully and elndoratelp considered by the

Lord Chaitcellor, I entirely concur in evxytliing that he litis said.

Lords'

Jourrtnls, f G March 1858.

Pccrer nppealed from reversed. and cause reitiitted, with it declaratioit.

E6161 ALFRED B ~ ~ ~ R , - ~ ~ ~ e ~ Z ~ ? z ~ ; ELIZdI3ETH ~ ~ ~ ~ ~ ~ , - ~ e s ~ ~ o ? ? ~ e ~ ~

[Harch 23, 1858].

[Mews' Dig. i. 318. S.C. 20 Besv. 548. Distinguished in Z?L r e iMa.sorr; ;I.lason v.

Robiizsom, 1875, 8 Ch.1). 414; Gee v. ;Ilnhood, 1878-9, 9 C1z.D. 1 5 5 ; 11 Ch.D.

891; and In re Tuylor; l l l d q t v. Nnr~dol l , 1884, 53 L.J.Ch. 1161 ; and cf.

tSn7q~in v. Weston, 1866, 35 L.J.Ch. 563 : Crimi~zehael v. Glee, 1880, 5 A.C.

596.1

TTzll-Aiznuify-Aitn7ca7 Incorne --Deficier&ey not ?rtadr good out of Corpis-

~ e p ~ ~ ~ i ~ ~ ~ Pzrmf sofd.

A testator directed his brother A. B. (whom he appointed his esecutor and

trustee} to get in his estate and to stand possessed of the produce thereof, on

trust, to raise thereout nnd invest in the stocks or upon mortgage such a

rum of money as that, when invested, the dividends should " realise the clear

2436

BAKER 2’. BAKER’[1858] VI R.L.C., 617

annual income or sum of 2200,” and to pay to ‘$my wife such dividends,

interest, or annual income,“ etc., for her life or wido~~hood. On her death

or second marriage, A. B. was to stand possessed “of the said principal

or trust money, and the stocks upon which the same shall be invested,” in

trust for himself and the other brothers and sisters of the testator. And as

to the residue, “af ter raising thereout the money sufficient to realise the

annuity for my said wife,” A. B. was to stand possessed thereof on similar

trusts ; provided that if the testator should diet leaving children, the trusts

f o r his brothers and sisters were to be null, and the children were t o take

the whole. The estate when got in and invested did not produce &200 il

year :

Held (reversing the decision of the Court below), that the widow was not entitled

to haye the deficiency made good out of the corpus of the estate.

A certain portion of the fund itself had, under the order of the Court below,

been sold to make good the deficiency: the House, on reversing the order,

directed the widow to replace that portion.

This was an appeal against part of an order of the Lord Justices, affirming an

order of the Master of the Rolls.

The testator, by his will, dated 17th September 1551, gave all his real and

personal estate to the Appellant, his brother, t o get in and sell the sanm, and as

CO the money arising therefrom, “ i t is niy will, and I do hereby declare and direct

that my said trustee do and shall stand possessed thereof, upon trust, t o raise

thereout and invest in the Parliamentary stocks or funds of Great Britain, or upon

mortgage or other good security, such a sum of money as, when so placed out o r

invested, the dividends or interest thereof shall realise the clear annual income or

sum of &ZOO, [617] a i d do and shall pay to, or permit and suffer, my said wife

Elizabeth, to receive and take such dividends, interert, or annual income by two

equal half-yearly payments, for and during the term of her natural life, provided

she shall so long continue my widow, but not otherwise. And from and after her

decease or second marriage, ~7hiche~er shall first happen, i t is my will, and I further

declare that in case I shall dies without issue, the said trustee shall stand possessed

of the said principal or trust-monies, and the stocks, funds, and securities in or

upon which the same shall be invested, upon trust for liiniself and my other brothers,

Walter Baker and James Baker, and my sister Louisa, the wife of Thomas Grant, in

equal shares and proportions.”

Other provisions were then made, and the will proceeded thus :-‘I And as to the

residue of the said trust-monies arising from my real and personal estate und

effects, after raising thereout the money sufficient t o realize the annuity for my said

wife, I hereby further declare that the said trustee shall stand possessed thereof,

upon trust, for himself and niy said brothers and sister, in equal shares and

proportiona. Provided always that, in case I should die leaving issue, then niy will

is, that the frust aiid bequests hereinbefore contained in favour of my brothers and

sister shall be null and void, and that, instead thereof, my children shall take and

be entitled to the whole of the said trust-monies and estate, in equal shares and

proportions, at the same times and in like manner as liereinbefore directed and

declared y i th regard to my brothers and sister.”

Thc testator died on the 10th November 1853, without issue, leaving his widow

(the Respondent), and his brothers and sister, him surviving.

The ~ L I I ~ of 22735 7s. 4d., 3 3 per Cent. Consolidated Bank Annuities, constituted

the wliole residue of the tes-[618]-tator’s estates, and the dividends thereori did not

amount t o the sum of 3 2 0 0 a year.

The Master of the Rolls declared the Respondent entitled during her life or

widowliood to the full amount of the annuity of 3200, bequeathed to her by the will,

and oidered the deficiency of the dividends to be made good to her from time to

time out of the corpus of the fund, and directed a sufficient part of the corpus to be

sold out from time to time accordingly (20 Beiav. 545).

This order was taken on appeal to the Lords Justices, who differed in opinion,

and ~oiisequently it stood as affirmed. The present appeal was then brought.

Sir X. Betlzell aud Mr. Hinde Palmer for the Appella~t.-The cardinal point in

1437

vf H.L.C., 619 8;1KII:R v. BAKER p ~ ~ q

co~struing this will is, that the widow i s to take only through the m e d i u ~ of the

investment ; she can conse~uently take nothing but the interest thereby produced.

The A200 were never intended to be produced by the absorption of capital, for that

vould after a tinie put an end to the annuity altogether.

The money directed to be invested, c o n s t i t u t ~ a special trust fund, and is,

upon the occurrence of either of oiie of two events, given over entire to the legatees

in remainder. Where that was the case, Lord Lyndhurst, in Foster v. Srnitlz (I Phill.

629), overruling the decision of the Vice-Chancellor, held that the charge was only

to be made good out of the rents, and not out of the corpus of the estate.

The rule of equity is, that if the principal is specifically bequeathed, effect must

be given to the bquest,--liozue v. ~ ( i ~ ~ ~ o ~ i t l ~ (7 Yes. 137), so that the property shall

in the way pointed out go over to the legatees in remainder.

10191 The Master of the Rolls here thought that he was bound by the authority

of Friglt$ v. Gcillpntber (2 De G., M. and Gurd, 652). but the two cases are distin-

~uis~iab le , for that was the case of an ~~ccountant and a legatee, while this i s the

case of a tenarit for life and a remainder man, a distinction which determines tlie

rule applicable to the case. There nothing shewed that the testator intended the

fund to be continued in its integrity during the life of the annuitant, arid in that

st&e to go over. Here the words distinctly shew such an intention ; for upon the

death or second marriage of the widow, the Appe~IaI~t is to ‘‘ stand possessed of the

principabsums or trust-monies ” upon trust for the ultimate legatees. Strike out

the word I ‘ axiriuity ” in the lntter part of the will, and say, as in the former part,

“ the clear anuual income o r sum,” and there cannot be a moment’s doubt about the

matter. The general provisions of the will shew that the testator did not intend

to cieate an annuity absolutely charged upon this trust-fund, but only to give a11

annital income if the fund should be sufficient to raise the same, preserving the fund

itself for the remainder-men.

By one clause of his will the testator shews that Be tho-light i t possible he should

have children ; cunsequeiitly, he could iiot have intended to annihilate the fund

during their mother’s life, for that would have been to leave them without any pro-

vision. The whole fund is given tu trustees, and their trust is to continue during

the life of the widow. and until the conreyatice of i t to those in remainder. There

have been cases, Dnzves v. Fattier ( X Si. and St. 163), and Nay v, B e m e t $ (1 Russ.

370), where n deficiency of arinnal inconie has. been made good out of the corpus

which was to produce it, but that mas where the deficiency was occasioned by the

act of the legislixture, in converting the, stock from one paying a 16201 larger to

one paying a snialler interest; but they do not apply to the present. But even in

some CitSes of that sort axi opposite course has been taken, KeiidnZ2 v. Russell ( 3 Sim.

42-1) XiEZet~ T. ~ ~ ~ ~ ~ ~ ( ~ Z f ~ f o 7 z ~ (3 Jlacn. arid Gord. 514). The deficiency here was ixr

the 01: iginal fund itself, the amount of xhicli had been niisc~lculated by the testator ;

it Y;~IS not occasioned by any subsequerit ei7ents, which he could not h a ~ e foreseexi.

In Iliirdle I-. Tnylor (20 Beur-. log) , FThich rery much resembled the present, the

Jfaster of the Rolls hiniself held, that the ’‘ clear yearly sum *’ there given to the widow

during life or ~vidowltood, did riot come out of the corpus, azid that p i % of his

dccis;un was left unaffected on appeal.

iMr. Willcoch and Air. Shebbeare for the Respondent.-The chief intention of the

testator here as to provide for his wife. Ke had given her all his goods; he meant

ta g jw her all his money, in preference to giving it to any one else. That being the

clear intention apparent 011 the face of the will. any particular expression of a

doubtful kind must be construed by it. No part of the residue was to be! enjoyed

by the legatees, except subject to the annual payment to the wife. The directioil is

to invest sufficietit to ‘‘ realise the clear armual income,” a very strong expression

to shev the testator’s intention, that all other objects mere to ba sacrificed to tfiat.

The gift here1 %%as that of an “ annuity;” it is expressly 50 called ill the latter pqrt

of the will. If so. everything is subordinate to that, and it must be provided for a t

all eoeiits. In iliicxy v. Reiiiaett (I ftuss. 310) there were as strong expressions as there

are here to indicate that the fund W‘RS to be preserved; Bet, a deficiency arising, it

was ordered to be made good out of 16211 the corpus; and in IlauL* v. Fattier (1 si,

nnd St. 136) tlie same course vas follm-ed even to the extent of dealing with funds

which other persons had been judicially declared entitled. R7&ght T’. ci&Eelzder

1438

BARER 7). BAKER [ i 8581 VI EL& 622

(2 De G., M. and Gord. 652) is an authority for the present decision, and the t v o

cases cannot be d~stii~guished from each other. There: the testator directed hls

executors, as they are directed here, to stand possessed of his personal estate upori

trust to inrest a sutficient portion thereof in the funds to produce an annuity of

3 2 per week, to be paid to one of his sons. After that son’s decease the suni illrested

was to fall into the residue; the subsequent dealing with the property was then nmde

the subject of express and minute directions, so that other persons besides the

annuitant were provided for ; yet the sum invested proving insufficient, the annuitant

was declared entitled to have the deficiericy made up out of the capital. In ;If&lls

I-. Drezoitt (20 Beav. 6 3 2 ) the matter was fully cousidered, and the same conclusion

adopted. There money was given to trustees for investment, in the funds sufficient

t5 produce &40 a year to be paid to the testator’s wife for life. The gelneral residue

and the fund invested were (after her death) to go to other persons. The sun1 invested

produced less than the 340, and the widow was held entitled to have the deficiency

made good out of the corpus. The words of the will create a trust for the benofit

of the widow, and no benefit is to arise to other persons until that trust has been

performed.

[The Lord Cliancollor.--Suppose~c~llor.-Suppo~e the money had been lent upon mortgage, ac-

cording t o a power contained in this wilI, horn would the corpus have been affected

upon every yearly deficiency of income 31

There may be in a particular state of tliings some un-[622]-foreseen difficulties in

complying with the will of it testator, but that cannot affect the question wnerc: the

general intention is clear. Here the money was not lent on mortgage, and the sup-

I.esed difficulty does not arise.

The Appellant’s counsel were not called on to reply.

1 he Lord Chancellor (Lord ~ l~e ln is ford) . -~~y Lords, it is very nir~ch to Le re-

gretted that in 8 ease in which your Lordships have so clear an opinion with respect

to the construction of this will, a conflict of opinions of learned Judges should have

occasioned rwort to, different tribunals> and have led to grsat expenses, reducing very

cons~derably the snzalX sttm which is in question.

There is no principle whatever involved in this case, except that wtiich pervud~s

all these cases, namely, to ascertain what is the testator’s intention, and to carry that

intention into effect. ff the language of this will were to be regarded with reference

to the authorities upon the subject, I should feel no di%eulty whatever in coming t u

a conclusion as to the meaning of the testator. And it seenis to me that we shall not

break in up00 any principle whatever in deciding according t o the construction for

which the Appellant contends.

It is clear that the testator was under a misapprehension with regard to the

amount of his1 property, and that he supposed that his estate would enable him to

proyide a fund, which would pay an annual sum of e6200 to his widow, and would

learn a surplus; and, in construing the will, you must endeavour to ascertain the

intention of the tesistor with reference to that circumstance. The words of his will

in thst yiew appear to me to be perfectly cIear.--[His Lordship read the bequest.]

. It is quite apparent, froni the words of this will, that the intention of the testator

was, that the funds which ha &23] thought would enable him to secure’ the annual

payment tu his widow should be pro.vided by the sale of his property ; and that she

Rhould be p“id out of the dirridmds and interest of that fund, and that he intended

that that fund in its integrity, in case of her death or marrying again, should go

over to the parties who are named. That being the intention of the testator, your

Lordships are called upon, under a state of circumstances never in his contemplat~on,

to give a different construction t o the will, and to impose, as i t were. a new intention

upon the testator ; because, as he clearly contemplated that there would be a sufficient

fund to PRY this annual sum out of the interests and dividends, and that the corpus

of the funds was not to be touched for the purpose of assisting in its p i i p e n t , you

are now called upon to suppose that be had the intention of approprii t t in~ a portioii

of the corpus of the fund, in case the dividends and interest out, of which he so de-

clared the annual SUM should be payable, should prove to be deficient.

It is quite ciear that this is a question. not between an annuitant and a residuary

legatee, but between a tenant for life and a ~ei~~ainder-man. And the ~ u t h o r i t i e ~

which have been cited clearly mark that distinction, and show, I think, that, in .this

1439

VI H.L.C., 624 BAKER W. BAKXR [I8581

~ar t icuIar case there is 110. decision altich confiictx with that coiistructio~i of the -ill,

which appears to ine, under the c~rcu~i~st~ances, to be tlie correct one.

According to the construction nliiclt is contended for, on behalf of the widow,

this strange st&+ of things would arise, that, supposing her life to continua for many

years, the provision which was clearly i i ~ t e ~ ~ d e d for her by the will, might iu the

course of time, by a p ~ r o p r ~ a t ~ ~ i ~ annually a, portion of the corpus of the property,

be utterly annihilated, and she would be left without any provision at 311 ; [6%]

and therefore, as the question is one regarding intention, I apprehend thwt rlobody

can suppose that such an intention could ever have existed in the mind of the testa-

tor. There are other difficulties which occur in the construction which is contended

for on behalf of the Tidow ; and I think there has ha no s ~ t ~ s f a ~ t o r y answer given

to 21 d i ~ c u ~ ~ y with which her counsel were pressed in the course of the ~ r g u i ~ i e ~ l t .

The trustee i s at liberty to invest the fund upon ~ ~ ~ o r t ~ a g ~ , as well as in ~ o v e r I ~ ~ i i e n t

stocks. Xow, the fund would clearly be deficient to pay the annual sum of ‘€200

to the widow ; and the question is, in what mode, supposing the money had been in-

vested upon mortgage, the trustee is to supply tItc deficiency of the fund, and to pay

the annual sum of 2200 to the widow. It is quite clear tliat he could

iiot deal with R- niortgagrd estate in the same way as he can deal with Govern-

ment stocks, by a p ~ r o ~ ) i ~ i a t i ~ l ~ nnually U portion of the corpus of the fund to provide

the annual s w n of €200, and therefore, that itself, upon a question of ~ ~ ~ t e ~ ~ ~ o ~ ~ , ~ ’ ~ 3 7

aid rery considerablj- in giving the other constr~~ction which i s contended for on the

part of the Appellant.

Upon the words of the vill, it appears to me to be perfectly clear that there is TIO

difficulty at all in arriving at the irttention, and ascertaining That was the meaning

of tlte testntor ; zind therefore, if the question is tu be decided apart from a u t ~ ~ o r ~ t ~ c s ,

there can be no hesitation whatwer upon the subject. With regard to the author&

ties, the only case that the aster of tlia Itolla referred to, and by which his decision

seems to iiave been i n ~ u e ~ c e d , as the case of ~~r~~~~~ v. lend^^ ( 2 De G., M. and

Gord. 652). It was, in fact, n fettezed , j u d ~ i e I ~ t of the Master 0-f the Rolls; he con-

sidered that hs was bound by tlie ~ ~ u t ~ ~ o r i t y of that case. Now, i t is quite E6251

clear, that in cases of the coiistruction of wills, very little aid is to tx?. derived froin

authorities. Each case must depend in a great degree upon its own circunistances

and i a n g ~ ~ ~ ~ ~ . Rut with regard to Fpiglrf v. ~ ~ ~ ~ e ~ ~ e r , there i s a clear distinction,

as it appears to me, between that ewe and the present; because there the trustees

uere to stand possessed of property, and to invest a Bufficient portion thereof in the

public funds of Great Britain to provide a i l inconie of $2 a week. Wow that was

not like this case, in which the income is to be paid out of interest and dividends,

but it v a s income that was to be paid a t all events: and upon the death of the

person mho was entitled to that weekly snm, it was to fall into the residue. There-

fore the parties could take no portion of the residue, which had been exhausted €or

the purpose of satisfying this annual surn which was to be paid weekly to the party

who mas nsmed in the will. In that case Lord Cranworth (2 De G., M. arid Gord.

655) says, ‘‘ Tf there had been a ~ i y t ~ i i r ~ ~ in the terms of that gift< o37er, showing that

the testator intended the fund to be continued in its integrity during tile life of the

annuitant, and in that state to go over, the argument might be well forlnded.” But

i n t h i s case there is that very cireumstiknce to which TJord ~ r a n ~ ~ o ~ h adverted ths

being absent in the case of Fright v. ~ a ~ ~ e n ~ ~ ? . , h a u s s here it is apparent, froill the

lariguitpe of the will, that the testator intended that the fund should be continued in

its integrity during the life of the Un~~~i i tan t , and in that state; should $0 over. The

trustee is to stand possessed of the “said principal or trustFrilonicR.” So that, in

fact, he is, as trustee, to hold the1 fund, and out of the interest and dividends t o pay

the amount of i2200 a year, supposing i t sufficient, as the testntor tlzought it wonld

he, to pay that amount; or if not, he is to pay the whole of E6261 tlie illterest and

dividends : that is one trust j and then u ~ o ~ ~ the death of the widow, or up011 lrer

second i ~ ~ a r r i a ~ e , th next trust is, that he is to stand possessed of U said pr inc~pal O r

t r u s ~ - ~ ~ ~ o I l i ~ ~ upon trust for his brothers and sister alld l l i ~ s e ~ f .

~ ~ ~ e r e € o r e it appears p e r f ~ t l y clear that this is a case in mllich all the cjrcllm-

&anew concur tcr show that? the intention of the testator must have to preserve

the fund apart and in its integrity as a fund which is to be first: applicable to the pav-

ment uf the annual sum to the widoq-, and ~ ~ f t e r ~ a r d s to go over to thaqo .cv~lo in

1.140

EAKEB 2). BAKER [1858] VI H.L.G., 637

remainder after her. That, being SQ, it really appears that there is no authority

which conflicts a t all with that construction of the will,

Under these circumstances, I submit t o t your brdsii ips that i t will be proper to

vary so much of the decree of the Lords Justices as declares that the Plaintiff is exk

titled to an anuuity of ~€200, and that she is entitled to have the deficiency of the

dividends msde good out of the corpus of the fund, and ta give the directions con-

sequent i~l thereupon ; and also with regard to cos&, that % declaration should &

made so as to inaka the costs payable out of the atate.

Lord Brougharn.-My Lords, I take entirely the same view of this case with niy

noble and learned friend; and I shall not detain your Lordships by urging any

argument in favour of my opinion, which is, that the decree of the Court below ought

to be varied, as suggested.

It has been very justly observed, in regard t5 cases like this, where the sole ques-

tion that arises i s upon the construction of a will, and where the object is t . ~ ascertain

the ~ e a n i n ~ of the words used by the testator, that nothing, E6271 generdly speaking,

can be more urifruitful tlmn a reference to other c a m wliere, instead of the question

arising upon a principle of law, or a rule of law, the whole quepstion arose upor1 the

meaning of the words employed in the will ; and the least difference between the case

a t the bar and the case cited, will make all the difference in the world, rand render the

application of the case cited utterly uselws.

My Lords, reference has. been made in this instance to the erne o f W r ~ g ~ ~ ~ v.

Ca$lelcLder_[% De G. M. and G. 6521, which, for the reason given by nzy noble and

learned friend, is clearly distinguisltable from this case. I should have had no

hesitation whatever in the case' of Fright v. Gullender in taking the same view of i t

which my noble and learned friend, now sitting upon the1 bench opposite, took.

With respect to the case of May v. Beanett [I Rum, 3101, I cannot go quite so far ;

I wish to say nothing in disparagement of that case: it is di5t,inguishabl~ from the

present. But, with the greatest possible respect for the learned Judge, the late

Lord Gifford, who decided that case, I must say, that if I had had to decide it, 1

think I should have come to a different conclusion from that at which he arrived.

X have sometimes wished that, as to d18, we might have formulas laid down ; so

that if any one chose to use those formulas, they might feel awxed of effect being

given to them by the lam. Many o b ~ ~ t i o i i s have k e n taken to that mode of proceed-

ing j but if it. verci left entirely optional t<) any one to use the prescribed form or not,

a guarmtiei being given to those who did elect to use it, that they had used words

which had a certain defined effect, I have ofteii considwed that that might be one

mode of avoiding tliese endless disputes respecting the meaning of words employed in

wills and in some other instruments. But that observation rather applies to cases in

which questions arise respecting sonic principle1 o r some rule of law than to those in

which [62S] the quwtion relates t4> intention alone. In this case it i s merely U

question of the, m e a n i ~ ~ ~ or the sense we are to give to the words which have been here

used, and I am of opinion that the correce sense1 is that which has been given by iny

noble and learned friend in the proposition which he has made to your Lordship

for varying the decree of the Court blow, and not that which the Court' below itself

took.

Lord Cranwortb.-Fy Lords, in all them cases arising upon the ~ n s t ~ c t i o n f

wills, the real question IS, whether that. which is. given is given as an annuity, or js

given as the interest of a fund ; and when that p~sst ion is to be considered, what p~

must look tn i s thirz, whether the language of the testator importpi that a su171, a t all

events, is annually to be paid oiit of his general estate, o r only the intereet, or a

portion of the interest, of a capital SUM which is to be set apart? pu'ow in deciding

that question, it i s obvious that all we have to look to is the language of tha particular

will, and to ascertain what is the true interpretation of the language there eniployed.

I confess that in this case I think there is very little) room, and, were it, not far

the opinions of two, learned Judge8 to the cont.-rary, 1 might say no room whatever for

doubt, that what the tmtator here means is, that out of the dividends of a fund to be

set apart, a SUM of &200 is to be paid nnnually to his widow ; but that, i s to be pnid

out of the dividends only, and the trustee i s to purchaie and invest such a of

money a8 that, when invested, the dividends and interest" shall realise a clear annual

sum of d2OO. It appears to me perfectlp Plain, without referencci to other cases,

R.L. x. 1441 46

VI H.L.C., 629 BAKER 'v. BAKE& [I8581

that the widow can take nothing but the dividends and interest of the mvestnient;

arid if the investment does not produce $200 a year? she cannot have J300 [6291 a

year. That is the judgment that I should come to, quite independent~y of prior

authorities, references to d j k h , upon the constructioii of other wills, often furnish

only an unsatisfactory mode of arriving a t a conclusion in the case before YOU.

The case which lias been ~ n n i ~ ~ l y advertsd to in the course of the argument, is one

for which I inay be supposed to have a sort of prejudice, from having beeit one of the

Lords Justices who decided i t ; if so I can only say, that if that case and this case are

the same, that case was vrongly decided ; but I do not think it was1 wrongly decided,

because the test to which I should bring these cases is a test which leads to one result

in this case and to a different result in that case, according to my construetion of the

vords of the will. There the testator directed that, a t all events5 an investment

should be made, which so long as one of hie sons (who, I suppoee, was infirm, or there

%%as sorilething to distinguish liini from the other sons) should live, shouIcl produce a

aeekly suni of X2. That was the ixiteI~tion he had. and he directed an investment to

be made, in order to carry out that intentioii, and he ga.;e the residue of his e&ate

to h i s other cltilciren. Without going into the detail of that case, which is not to be

irrgufid now, the conclusioii at 5% hich niy learned brother and myself arrived Tsas, that

the true import of that lariguage, mas that &2 a neek, at all events, were tot be paid

for the benefit of his son. He directed that his property should be invested, and out

of that investment tlie payment of that sun1 was1 to bt made. If that was not the) true

construction of that will, I adinit that the case was wrongly decided ; but 1 think that

that was the true construction, and consequently I think that that case was rightly

decided.

I agree in the, proposition of my noble and lsarned friend [630] on the woolsack,

that the decree of the Court below must be varied.

Lord Wensleydale.-I entirely agree in the opinion of my noble and learned

friends who have preceded me. It is our duty to endeaxour tom expound this will, by

ascertaining, according to the ordinary rules of construction, the meaning of the

n-ords used by the testator ; and I think, adopting that course, that there is no diffi-

culty in construing this will. I entirely agree with what has been said about the

importance of adhering to this rule, rather than looking at precedents, as I took occa-

sion in the course of last Session to express, in the case of Grey v. X'earson (a iz te ,

p. 108). I will take the liberty of repeating the remarks I then made, because the

subject is of slome importance: " The principle of construction which has been laid

down is, in niy mind, of such paramount consequence, that I think i t much more im-

portant to adhere t o it, than t o follow the authority of the previous decisions of

Courts upon words in other wills reseinbling those used in the present. We are bound

by decided cases, for the sake of securing as much certainty in the administration of

the law as the subject is capable of. But when the decision is not upon some rule or

principle of law, but upon the meaning of words in instruments which differ so much

from each other, and when the proper construction is SO vaxied by the peculiar cir-

ciimstances of each case, it seldom happens that the words. of one will are a surB guide

for the construction of words r e s ~ n ~ ~ ) l i i i g them in another. Besides, the salutary

rule of construction I have mentioned, may have been misapplied in the particular

ctxses, and then they really become of n o binding authority a t all."

E6311 I think the case of Wright v. Callender 12 De G. M. and G. 6621 is dis-

tinguidiable from the present, upon the grounds stated by niy noble and learned

friends who hare preceded me. As to the other cases which have been cited, i t is

not f o r me t o say, and i t is quite iqmaterial tQ pronounce whether thev were rightly

decid$ or not. But upon this will I do not think any reasonable doubt could be

entertained if it were not for the opinions which have been expremed. The words

ar+ [His Lordship read the part directing the investment, of the fund and the

payment of the annual sum.]

The only doubt really created is by the subsequent words of reference. which are

relied upon on the part of the Respondent, as if they indicated the real intention of

the testator. Those w e .wards of reference ; and if you interpret them by the former

p a r a ~ r a p h to which they refer, there is really no doubt about their meaning: " And

as to the residue of the said trust monies arising from my real and personal estate and

effects, after raising thereout the money sufficient to realize the annuity fo r my said

1442

CLARKE AND CETAPT/~AN I?. HART [1858] VI H.L.C., 632

wife.” Now, construing that by reference to the former part, what does the whole

mean? Clearly, a sum of money sufficient to pay out of ths interest or dividends

that amount. If you rend it in that way, there is no difficulty in the case. Inas-

much as the testator’s estate has turned out to be deficient, he cannot be supposed to

have known the precise amount of his propeny; arid as the interest or dividend on

it is insufficieIit to pay the $200. annually, the widow niust suffer a propo~ionate

diminution.

Sir Ricbsrd Bethell applied that it might be part of the order, that the Respondent

should replace the funds which, under the order of the Master of the Rolls, hLtd

been sold out.

[632] It was “ Ordered and adjudged, That the order of the Master of the Rolls,

of the 9th of June 1855, and the order of the Lords Justices of the 13th of December

1855, SQ far as it affirms, etc., be, aiid the same are hereby reversed: And it is

declared, That Elizabeth Baker is entitled to rcceive during her widowhood the

dividends (subjeot to the application thereof hereinafter ordered) arising from so

much of the sum of $2735 7s. 4d. Bank 3 per Cents. as shall remaiii after payment

of the cos& directed to be paid by the order of the Master of the Rolls, and the costs

hereinafter directed to be paid : And it i s farther ordered, That such dividends be

applied in making good and replacing such portions of the principal trust funds

as shall have been sold for the purpose of raising and paying to Elizabeth Baker the

full annual sum of $200 : And it, is farther ordered, ‘That the coets of all parties to

the Appeal before the Lords Justices, and also of the Appeal before this Eouse, be

raised and paid by the sale of a competent par t of the said Bank 3 per Cents : And

with this order the cause was remitted.” Lords Journals, 23d March 1858.

E6331 A. R. CLARKE and C. N. P. CHAPMBN,-~~~eZZ~?2ts; THOiMAS IIART,--

~ e s ~ ~ n d e ? ~ t [March 18, 19, 22, 23, 18581.

[Rilews’ Dig. i. 365; iii. 1470, 1473, 1479 ; vi. -190; is. 1272, 1273; x. -157, 472;

xiv. 1115, 1729, 1759. S.C. 27 L.J.Ch. 615; 5 Jnr. N.S. 447; and, below, 6 De

G. M. and G. 232; 24 L.J.Ch. 137; 3 E9.R. 264; 3 W.R. 14’1. As to forfeiture

of shares in cost-book comptmy, see now 32 and 33 Vict. c. 19, s. 18. As to

startdiig-by and laches, applied in Pa&mer v. iWoore (1900), A.C. 293; dis-

tinguished in Bull v. Jewell , 1881, 18 Ch.D. 660. And cf. Garden Gully United

Quartz il.Z,inirLg Co. v. %‘Lister, 1875, 1 A.C. 57; Erlanger v. nTew Sonz6rero

PiLosphute Co., 1878, 3 A.C. 1283.1

.

i M i m e s 4 o s t Book-Principle-Forf e i t ure-Partnership-Costs.

Power in co-adventurers to forfeit the shares of one of their number for non-

payment of calls is not necessarily incident to a mining adventure conducted

on the cost-book principle.

Where such a power exists by agreement between the parties, it i s to be treated as

strictzssimz. juris, like U power of forfeiture with respect to an estate, and the

forins to be observed in declaring the forfeiture must be strictly followed.

Where an agreement to work mines on the costibook principle hm been entered

into by sewral persons, the written statement of one of them (made subse-

quently to the date of the agreement), that his shares are liable to forfeiture

on non-payment of calls, will not affect his rights under the agreement.

A. B. and C., in November 1818, entered into an agreement to work rnines on the

cost-book principle. A. did not pay up his calls. In a letter of November

1849, to his co-adventurers, he spoke of his shares as liable to forfeiture. He

received a notice of a meeting of the co-adventurers, to be held on the 3d May

1850, to declare his shares forfeited. He denied the right to forfeit them.

The meeting was held, but+ instead of declaring A.’s shares forfeited, the CO-

adventurers passed R resolution to give him time to the 15th &fay, after RILiC~t

it wits declared that if the calls were not paid up, the shares would be treated

as forfeited. The calls were not paid on the day n a m d , and a letter was

afterwapds written, stating that. the shares had been forfeited en the 318t

1443