The Sun.
London, England, 1833-11-06 00:00:00

JUDGMENT.......7LATER. V. ABBOTT.

His Honour, the MASTER of the ROLLS, gave judg-
ment this morning in this case, the question on which
depended on the will of Sir William Plater. By that
will the leasehold and copyhold estates were devised to
trustees and their heirs, upon trust, to raise the fine, to be
paid upon admission by sale, or mortgage, or out of the
rents and profits. Also the expense of maintaining and
keeping in repair the buildings, the payment of the land-
tax, and other annual outgoings, payable from the estates,
and also the expense of the trust. That sale, or mort-
gage, was nut confined to the copyhold estates, but
related to the whole of the devised property. Subject to
that direction, the will gave to the widow an annuity of
2001. a year, in lieu of dower, and, subject
thereto, the whole of the property was left to a Mrs. Moore,
the only child of the testator, with remainder after her
death to her children, but, in default of issue, to several
persons for life, with ultimate remainder to the children of
the last named person. The whole proceeds of the estate
amounted to 8001. a year, and the fine demanded for the
admission to the copyhold property was 1,4001. That fine
had not yet been paid, the trustees doubting their power
to exact it, and the question in the case was, out of what
fund it should be paid—whether it was to be paid out of
the annual rents and profits, or by sale or mortgage, ac-
cording to the express statement of the will, it being to be
raised out of either. In the opinion of his Honour, it was
impossible that it could be paid out of the annual rents
and profits, inasmuch as it was a sum immediately de-
mandable; it must, therefore, under the direction of the
will, be raised by sale or mortgage, and then came the
question, whether that sum, being to be raised in that way,
the tenant for life was or not to contribute out of the an•
nual rents and profits towards the payment of that sum.
The only arguments on the face of the will that could be
raised in favour of contribution by the tenant for life, ap-
peared to the Court to be that the sale or mortgage was
not merely for the purpose of raising the fine, but .ilso to
pay the expenses of maintaining and keeping in repair the
building, the payment of the land tax, and other annual
outgoings, and also the expenses of the trust. It might
very properly be said that the expenses of keeping in re-
pair, and so on, necessarily fell on the rents and profits,
and that the testator having used the words that the
estate was to be sold for the payment of the fine
and the other sums mentioned, it was reasonable to suppose
that he meant that the whole should be paid out of the
rents and profits. That was an argument of some weight ;
but his Honour thought it snore reasonable to consider
the intention of the testator to be, in giving the power to
sell or mortgage, or to make the payments out of the
annual rent and profits, that the trustees should use the
power of sale or mortgage with respect to such subjects as
could not be satisfied by the annual rents and profits.
Now the fine could not be paid by the annual rents and
profits for the reason the Court had previously stated.
Such being the opinion of the Court, the next question
was, whether the tenant for life was to contribute;
and with respect to that, from the testator's will,
the necessary inference was, that be did not in-
tend that his daughter should contribute, because
if she did so, she could not enjoy the clear rents and pro-
fits, because there was no fund out of which she could
pay her proportions of the fine, but out of the rents and
profits. The testator had clearly expressed his intention
that his daughter should not contribute, inasmuch as he
had provided a fund for the payment of the fine. The di-
rection of the Court would therefore be, that she should
not contribute. It might, however, he said that the two
trustees who were to be admitted might die during the
life of the tenant for life, and that the estate would then
determine, and a new fine would be necessary, which would
be thrown upon the general inheritance. That case
certainly might occur, and the tenant for life would
have the benefit, and the remaining man be left
without any thing that certainly might be the cos.