D ANOTHER i v AND

A contingent remainder may be released by deed to the tenant for lf such a release will operate by way of enlargement of the latter's estate not merely by way of extinguishment of the contingent remainder.

An instrument, which is capable of operating as a release of such an' made in favour of a person capable of accepting it, will pass the legal estate the releasee although by the terms of the instrument the releasee agree accept it, not for his own benefit, but as trustee for others,

fine or by a contract for valuable consideration is good law, and whether interests do not pass by an instrument capable of creating estoppel, es! indenture.

'A testator devised certain lands to his wife for life, and, after her death, his two sons M. and J. for their lives as tenants in common in equal shares, the share of either son dying to go to that son's children, who being should attain the age of twenty-one years, or being daughters should attsit that age or marry, and in default of such issue, to the other children of the testator then living. Certain other lands were devised to J. for limitations in remainder after his death us in the former devise. 'The was devised to M., J., and another upon trust to sell, and to hold the p after payment of certain legacies and expenses, in trust for M.and J. ine shares. 'There was a proviso that (inter alia) if any of the children tenants for life should alienate or attempt to alienate their interest or interes inthe lands so devised the interest of such tenant for life should go a o=bit

thet, purported to "grant bargain sell alien and release" to M. as trustee ja ee all "the lands and property of whatsoever nature and kind soever Jeoluely and otherwise acquired " by him under the will and all his * estate right ttle and interest" therein to hold to such uses as his wife E., one of the sppeats, should appoint, and in default of appointment for her separate use forlife with remainders over. After the death of the widow of the testator, and of M., who died without issue, E, exercised her power of appointment in favour of the other appellant.

J. having become bankrupt six years after the settlement, all his interests tot then legally disposed of passed to the respondent, as official assignee, but the validity of the settlement itself was not affected.

Ie was not disputed on the appeal, that the settlement operated to create u forfeiture of J.'s life estate under the will or that upon the forfeiture the intermediate rents and profits, until one of J.'s children attained the age of twenty-one years, fell into residue,

Held, that, as to M.'s moiety of the lands devised to the testator's wife, J., atthe date of the settlement had a contingent remainder in fee as tenant in common with such of the testator's children as should survive M., and a rested remainder as residuary devise in joint tenancy in the event of failure af any of the testator's children to survive M.

That Js interest in M.'s moiety was effectually released by the settlement toM.,, either regarded as tenant for life in remainder expectant on decease, or as joint tenant in remainder under the residuary devise :

That the accretion or enlargement of his original estate which M. thus scquired was bound in his hands by the trusts of the settlement.

Doed, Calkin v. Tombinson, 2 M. &S., 165, and In re Ellenborough ; Towry Law. Burne, (1903) 1 Ch., 697, distinguished.

Held further that J.'s interest as residuary devise quoad the property com- 'rised in the second devise, though it depended upon certain contingencies whether he would ever take anything under it, was not contingent, but @ 'vested interest, and passed under the settlement.

of Walker J., (1905) 5 S.R. (N.S.W.), 63; 21 N.S.W. W.N., 213, Teversed on these points.

AL from a decision of Walker J. sitting as Judge in Equity. By his will dated 10th September, 1875, Owen Joseph Caraher, 'who died on 22nd August, 1879, made devises in the following

• "T give and devise all those six houses and store and 'tlic situated in Gloucester street in the City of Sydney, also the 'hol hereditaments and premises consisting of four houses situate 'Cumberland street which land was bought by me from William

"opher death, Before the widow's death J., by voluntary post-nuptial settle. H.C. or A.

Austin Hogan, to my wife Catherine Caraher for her life ithou impeachment of waste, and from and after her deeease T ij the same to my sons Michael Joseph Caraher and John

the age of twenty-one years or who being danghters ora dau shall have attained that age or shall have married or shall ma

shall be then living and if more than one in equal shares"

"TI devise my five houses in Cumberland street: opposite ti watch-house to my son John Edwin Caraher for life withoa impeachment of waste, and after his decease I devise the his child or children who being sons or a son shall have att or shall attain that age or shall have married or shall marry a if more than one such child in equal shares, and in default of am such issue as aforesaid then I devise the same to the others other of my children who shall be then living and if more th one in equal shares." :

"And as to the rest residue and remainder of my real personal estate I give and devise the same to James Mullens Pitt Street, Sydney . . . my son the said John Edwin Caraher and Edward Flanagan of George Street Sydney « (hereinafter designated trustees) their heirs, executors

will. Out of the proceeds the trustees were to pay the funeral and testamentary expenses, and debts, and certain and to stand possessed of the residue, after payment of cert

John Edwin Caraher in equal shares. The will also contained the following proviso: "Provided always and I hereby declare that it shall not) lawful for any of my said children hereby made tenants for] of the said premises hereinbefore devised to charge all or any ©

he said prem vest of any sum or sums of money nor in anywise to dispose of any estate or interest in the said premises so hereinbefore devised, nj in the event of the interest of any tenant for life being tached alienated or disposed of by operation of law then I give devise the interest of such tenant for life to the person or enons who would be entitled thereto if such tenant for life were cally dead."

Bya codicil dated 11th August, 1879, Michael Joseph Caraher appointed executor and trustee in place of James Mullens 'who had died.

The testator was survived by his wife and eight children, iduding John Edwin and Michael Joseph, and probate was sated to the executors named in the will in September, 1879. 'Thewidow died on 3rd March, 1893. 'The son Michael Joseph 4 on 31st December, 1894, never having married, and the Flanagan in October, 1900, and no person was appointed trustee in place of them. John Edwin Caraher was married in July, 1880, to the appellant, Emily Caraher, and there was issue of themarriage one child, Ethel May Caraher, born in October, 1881. By a voluntary post-nuptial settlement dated 20th January, 1882, John Edwin conveyed to Michael Joseph Caraher as trustee 'nfe all his interests of whatsoever nature and kind under the 'ill upon such trusts as the settlor's wife should by deed or will point and in default of appointment in trust for the wife for life her separate estate, and after her death without having printed in trust for the children of the marriage who should tain the age of twenty-one or marry. The operative words and imitations of the settlement are more fully set out in the judg- went, No other children were born of the marriage. In August, the estate of John Edwin Caraher was sequestrated in bank- uptey, and the respondent was appointed official assignee of the 'siate, which has never been released. In 1894 the marriage of lohn Edwin was dissolved by decree of the Divorce Court, and he Tasnot re-married. In 1904 the appellant Emily Caraher exer- tied her power of appointment under the settlement in favour of

the other appellant. By notification of resumption dated 29th December, 1900, the

ises so hereinbefore devised for life with the pay- 1. ©. or A.

lands, comprised in the devises set out above, were Crown under the provisions of the Public Works Act 190) the Darting Harbour Wharves Resumption Act 190, axa compensation moneys, with interest, paid into Court. by th Minister. John Edwin Caraher was at this time still living.

'The several claimants, including the appellants, petitioned Court for payment out to them of their respective shares of th moneys paid into Court. The appellants claimed to be enti under the settlement of 1882, to John Edwin Caraher's in under the will, which was at the date of the settlement contin on Michael John dying before him, and without leaving issne should fulfil the conditions of majority or marriage. There dent contended that the settlement did not operate as an axig ment of this interest, and that therefore it had passed on bau ruptey to the official assignee. Walker J. who heard the petitia sitting as the Judge in Equity, was of opinion thatat law noi passed by the settlement, and that, the settlement being volunt and the property purported to be settled never having come in the hands of the trustee, it was inoperative also in Equity held therefore that the title of the assignee must prevail. also was of opinion that the same reasoning applied to the of John Edwin, as one of the residuary devisees, in the rents 0 the property devised to himself for life in the interval betwee the forfeiture of his life interest and the attainment of maj by his daughter Ethel May: Ex parte the Minister for Works ; In the matter of the Will of Owen Caraher (1).

Loxton for the appellants, The interest of John Edwin in Michael's share of the property held by them as tenants i common, which was expectant on Michael's death, passe the settlement. It was one of those contingencies or possi which, though incapable of being conveyed to a stranger otftt wise than by estoppel, fine and recovery, or assignment for in Equity, are capable of being voluntarily released to pa who stand in a certain relationship to the releasor, ¢g.t0# 13.

accepting such a ioe The Sdilenore ea amongst things, to release to Michael all that John had acquired orby virtue of the will. The fact that Michael was to astrustee did not militate against the efficacy of the con- vance, The rule is one of law, subject to certain exceptions, rnd the Court, in applying it, con only take cognizance of legal ests, If a particular assignment comes within the exceptions, ye Court must enforce the legal title, irrespective of any equities tint may be created at the same time. 'The rule against alienation ofsuch interests was laid down in Lamypet's Case (1). Anexception s recognized in the case of releases to persons already having an «tate in the land: Thomas v. Freeman (2); Higden v. Williamson Wright v. Wright (4); In ve Parsons ; Stockley v. Parsons (5); mre Bllenborough; Yowry Law v. Burne (6); Marks v. Marks f), The reason given in the old authorities for the exeep- tion in the case of releases was the same as the reason given for nile itself, viz., that it tended to the quieting of disputes. A release was permitted because it resulted in the extinguishment ofan adverse claim, or the enlargement of the estate of the terre- tenant or remainderman. But, though this was the foundation the exception, it must be applied irrespectively of its origin hether the particular application will result in extinguishment: not. In the present case the release removed the possibility of disputes, whatever differences might arise between the dhimants of equitie:

Anvlease of a possibility is good where the person to whom it ports to be made has the freehold in deed or in law, and there- fiw it is good when made to a life tenant : Cruise's Digest of the ws of England, (1835) vol. u., pp. 78, 82; Co. Litt, Bk. 11, Hs 448, 447, et seq. ; Williams's Law of Real Property, 9th ed., P22. A release may operate either by extinguishment or as an alargement : Watkins on Conveyancing, 8th ed., p.243; Co. Litt, : ML, sees. 452, 453, 465-467. Here the release extinguished

828 (48a), (5) 45 Ch. 563, (6) (190: 8 8, 132 (7) 1 Ste., 129 ; 2 Blac. Com., 290.

[Grirrrr C.J. referred to Go. Litt, Bk. 11, see. $05, and pp v. Dean, (1)]

Another consequence of John's attempted alienation of thei estates given him by the will was forfeiture. [He refema Blackman v. Fysh (2); In ve Porter; Coulson v, Cipper gy In ve Tancred's Settlement; Somerville v. Tanered (4) interest in the residuary estate passed to Michael, 'That i was not contingent. As residuary devisee he had an ulti vested remainder in fee, subject to a contingency. 'This

interest expectant upon Michael's death a mere expectaney, was a possibility coupled with an interest. In Jn re Bilenloro Towry Law v. Burne (5), which was relied upon in the below, the subject-matter of the assignment was a mere 4 suecessionis. A possibility coupled with an interest has al been assignable: Watkins on Conveyancing, 8th ed, p Doe d. Perry v. Jones (6); Shep. Touch., p. 239. The settlement therefore operated in Michael's favour by way of enlargement d his life estate, and enured to his benefit as ultimate remainderman, he being the sole residuary devisee: Williams on Lew of Ra Property, 9th ed., p. 256.

[Grirritn C.J. referred to Jurman on Wills, 5th ed., p Tai)

Whatever the operation of the release, John ceased to have interest in the estate, and none therefore passed to the respont the official assignee, on the bankruptcy. The settlement was it 1882 and therefore was not affected by the Bankruptey St Michael took the conveyance under such circumstances as wot lead the Court of Equity to declare that he held the property whit passed under it, subject to the trusts mentioned in the deed. settlor having done everything possible to effectuate the settle the Court will enforce it, although it was voluntary: "Ellison ¥. Ellison (7); Wh. & T.L. C. in Equity, 6th ed., vol. 1, 1; Pulwertoft v. Pulvertoft (8); Kekewich v. Manning (9). ;

Dr. Cullen K.C., and Peden for the respondent. It is eone

(3) (1892) 3 Ch. RRS IS (4) (1903) 1 Gi, TB. (5) (1903) 1 Ch,

come eases a possibility may be released, but in the present ease » settlement did not operate to convey the interest of the xitlor by way of release or othery A release of a possibility nly operate by way of extinguishment, so as to benefit the whose interest would be impaired by the realization of the bility. Whether the interest of the settlor is regarded as an -executory devise or as a contingent remainder, it could not be released to Michael. The former class of interests can only be sd to the person whose estate is liable to be cut down by arising of the interest, and the latter only to the reversioner "whose estate might be prevented from coming into existence by "the happening of the contingency: Williams on Real Property, "Ith ed, p. 357. Such a release cannot enlarge the interest of the "tenant for life, because his estate must be completed independently the interest of the releasor. Nothing was conveyed to Michael ty the settlement. Michael was in the same position as any mmger, and could only take a conveyance of John's interest by and recovery, or its modern substitute, or by assignment for value in equity. It is only in that way that such a possibility an be passed so as to become an interest in the hands of the transferee. [He referred to Weule v. Lower (1); Fearne OR, "Thed, p.365; Williams, Seisin of the Freehold, p. 124; Story, Buity Jurisprudence, p. 690 (sec. 1040); Lampet's Case (2); Hyde v. Purrat (3).] John had no vested interest to. convey. residuary devise was contingent upon the failure of all the jects limited, and therefore might never have taken effect. {He referred to Jurman on Wills, 5th ed., vol. 1, p. 757; Steph. Com, 7th ed., vol. 1,, pp. 326, 327.]

[Gurerrn C.J. referred to Hyerton vy. Mussey (4). 'That. case 'seems to show that there was a vested interest in Michael and 'ohn, as to the residue.]

No estate after a contingent limitation in fee can be vested: Tuidington v, Kime (5); Vick v. Edwards (6). John's interest ss residuary devisee was consequent upon his own forfeiture.

(4) 3C.BN.S., 338 (5) 1 La. Raym., 203. (6) 3 P. Wins, 371.

H.C. or A. That was an executory interest at the date of the

vy. Hackman (2); Wilkinson v. Wilkinson (3); Elphinstone Conveyancing, 5th ed., p. 339. Michael was not tenant for of the estate given to John for life; he was only tenant for life gf his own moiety. If his capacity to take a release only atuse by virtue of the settlement, he could not take under the se in that capacity. The owner of one possibility cannot release the owner of another. Michael and John, as joint resida devisees, were each possessed of an interest to the extent of moiety, and consequently. John's interest only affected Michael interest in the whole to the extent of one-half. But a person is capable of taking a release only when his whole interest is liable to be cut down by the coming into effect of the contingeney on which the estate of the releasor depends.

(Grier C.J. - A release might have a twofold effect, enlarging - one estate by the extinguishment of another.]

A gift to the survivors of several persons is a mere eontingeney_ and ie not coupled with an interest. None of the persons may - survive the tenant for life. [He referred to Preston on Convey aneing, 1818 ed., p. 95; Vick v. Edwards (4); Fearne, CR, 7th ed., p. 547 ; Doe d. Perry v. Jones (5); Watkins on Conveyancing, Pp. "homas v. Freeman (6); Theobald v. Duffy (7); Beckley v. Newland (8); Hobson v. Trevor (9); In re Parsons; Stockley ¥. Parsons (10); In re Ellenborough; Towry Law v. Burne (1); Meck v. Kettlewell (12); Kekewich v. Manning (13). :

[Grirrita C.J. referred to Doe d. Calkin vy. Tomkinson ag; Thomas v. Jones (15); Jarman on Wills, 5th ed., p. 117]

[Barron J. referred to Jarman on Wills, 5th ed., p. 49.)

The settlement was not a release at all in the sense contended for by the appellants, but an ordinary conveyance by the statutory -

(10) 45 Ch. D., 51. (3) 3 Swan, 5 11) (1903) 1 Ch., 697, (4) 3B. Wins. 3) 1 Hae, 464) 1 Bh 382 6) 1H BL, 5 88, (13) 1 De @. M.& G., 176. (6) 2 Vern, 5 (04) 2M. & 8, 165.

(3) LP. Wins., 574 (note). (15) 1 De G., J. &S., 08.

teing by deed acknowledged, or for value, it was inoperative to 'ass acontingent interest. But assuming that it was a release, "god that Michael was a person capable of accepting one, it was imperative upon the interest in question, whatever effect it may jaye had upon John's other property. A release can only operate asanenlargement where the estate of the releasee is complete ant vested. [He referred to Lampet's Case (1); Mozeley and Whiteley's Law Dictionary, p. 445, definition of terre-tenunt; Sisph. Com, Tth ed., vol. 1, p. 518, and Co. Litt, Bk. m1, sees. 905, 447, and 450, as to the ways in which a release can operate at Jaw.)

Assuming that the release was effective, the result, whether regarded as a release to Michael as one of several joint tenants, or asthe tenant for life, was that the interests released fell into the inheritance: Co. Litt., Bk. 111, sees. 306, 307. That was vested in John, Michael and Flanagan, and therefore ultimately fell to John ly survivorship. John therefore has not rid himself of the legal tate, and the settlement, being voluntary, will not be enforeed against the settlor.

Arelease can only operate by merging the estate of the releasor in the estate of the releasee, if large enough to take it, or in the inheritance, not by preserving the interest released as a separate entity. The fee could not sink in the life tenancy, and Michael cannot have an estate expectant on his own death, for that would make the release operate as a conveyance, not a release, John's interest in Michael's moiety under the first devise therefore sank into the inheritance, as well as his interest in the residue, and the legal estate in both remained in himself.

Zoxton, in veply, referred to Egerton v. Massey (2); Doe d. Calkin v. Tomiinson (3); Fearne, O.R., 9th ed. p. 370; Thomas v. Jones (4); Preston on Conveyancing, 3rd ed., pp. 268, 270, citing Goodright v. Forrester (5); Co. Litt, Bk. m., secs. 463, 479; Ghester v. Willan (6); Cow v. Chamberlain (7); Shep. Touch., 239. Cur. adv. vult.

(5) 8 Bast., 552. (6) 2 Wms. Saund., Pe. L, p. 96a. (7) 4 Ves, 631.

ivalent of the old lease and release. As such a conveyance, not H.C. or A.

The judgment of the Court was read by _GuureimH CJ. 'This is an appeal from an order of Walt

of a fund paid into hacen respect of lands taken by the Goveem ment of New South Wales under the Public Works Aet The appellants claim under a voluntary post-nuptial se dated 20th January, 1882, made by one John Edwin Ca 'The respondent claims as official assignee of J. E. Caraher, wh estate was sequestrated on 30th August, 1888. The questions for determination depend upon the ancient English law of real p perty relating to contingent remainders, which in this not been altered in New South Wales. It will be convenient consider, first, what was the nature of the estate which J. Caraher had in the lands now represented by the fund in Go and, secondly, what, if any, was the effect of his attempted d ing with it by the settlement of 20th January, 1882.

Owen Joseph Caraher, who died on 22nd August, 1879, males will dated 10th September, 1875, which contained devises in t following terms: [His Honor read from the will the devises. proviso already set out, and continued]:

By a codicil Michael was substituted for Mullens in the residuary devise.

'The effect of the first devise, stated shortly, was that, after th life estate of the widow, Michael and John Edwin took for life, being tenants in common during their joint lives, remainder in fee as to each moiety for such children of the tenaul

such issue to the other children of the testator living at the of the tenant for life as tenants in common in fee. In thept a

tions subsequent to his life estate. At the testator's death 3 had no children. It is clear that the remainder to his eb was contingent: Festing v. Allen (1); and, as it was a re in fee, it follows that the remainder to the testator's children should survive Michael was also contingent. It is also ¢ that this last remainder was a gift to persons in ¢s8¢, aaa :

"jelas been held by the Supreme Conrt of the United States, falloving the opinion of Chaneellor Kent, that " when an estate js granted to one for life and to such of his children as should be ling after his death the present right to future possession vests atonee in such as are living, subject to open and let in afterborn children and to be divested as to those who shall die without jssne:" Ororall v. Sherard (1). In this view John Edwin's interest was only contingent by reason of its following on the contingent remainder given to Michael's children. In some of the 'Ameriean States, however, it is held that a remainder is neces- ily contingent when it is impossible, until the death of the tenant for life, to tell who are entitled under the deseription. Tn the present case it is immaterial which of these views is correet, for in either view the remainder to the children of the testator yascontingent. It was, however, urged before us by the learned

counsel for the respondent that the interests of the children of "the testator, if they were contingent remainders at all, were not ofsuch a kind as to be capable at common law of assignment by theassurances appropriate for dealing with contingent remainders, but were mere possibilities not coupled with an interest, and were incapable of being dealt with except by estoppel or contract for valuable consideration ; and the case was likened to the interest of an heir-at-law before the death of the ancestor. We shall have casio to deal with this argument at greater length. But, in passing, the case of Quarm v. Quarm (2) may be mentioned, In that case a testator had devised a freehold estate to seven persons "asjoint tenants and not as tenants in common and to the sur- vivor of them, his or her heirs and assigns for ever." It was held upon the construction of these words that the devisees were joint tenants for life, with a contingent remainder in fee to the sur- river. The survivor had, twenty years before the contingency was deterinined in his favour, become bankrupt, and it was held that his estate had passed to the trustee in bankruptey. It does tot appear to have occurred to any one concerned in the case to doubt that such an interest passed on bankruptey. It is clear, however, that the expectancy or spes successionis of an heir-at-

in whether all or any of them would take under it, H.C. or A.

• -

H.0. oF A. Jaw does not pass to his trustee in bankruptey, if the b

is closed before he inherits. It appears, then, that as to moiety of the lands in question John Edwin had a contin remainder in fee as tenant in common with such of the testa children as should survive Michael. 'This being an esate severalty, it is immaterial that in the events that happened} and those claiming through him only became entitled to om. seventh of Michael's moiety. 'The prineiples governing the g are the same as if they had become entitled to the whole oft the contingency of the failure of the gift to Michael's ehildre

Again, the contingent remainder to the children of the te who should survive Michael might have failed altogether, In event the land in question would have fallen into the residuean the legal estate would have vested in the devisees named, viz, Michael, John Edwin, and Flanagan. And this estate was ved and not contingent : Eyerton v. Mussey (1). At the testata death, therefore, Michael was not only tenant for life of his but was also joint tenant in remainder in fee of the same m

We were invited to approach the subject on the assumpti that at common law real property was primd facie inalien and that at any rate contingent remainders could not be alienated But it is, to use the words of Farwell J., "the ancient rule of English law that one of the inseparable incidents of property is the right of alienation by appropriate assurances": Ine Ol Setilement, Evered v. Leigh (2). The learned Judge added th the rule is one of public policy, and that it has always been considered to be the duty of all the Courts to uphold it, not assist in evading it. The question in each case is as to th appropriate assurance. On this point positive rules were est lished, one of which was said to be that certain kinds of property, including contingent remainders, could not be alienated except by release, a form of conveyance which could only operate in favour of a person already having some estate in the land. We h referred to the latest statement of the law on the point. We now refer to one of the earliest, Lampet's Case(3). In thate

Blizabeth. Elizabeth in the lifetime of John Morrice joined

im Morrice's estate for life was in law greater than the term of vs, and her estate was contingent upon his death before the jase was determined, an event which might or might not happen. Jewas contended that she had nothing but a possibility, but it «otherwise adjudged, and it was held that the effect of the zeae was to make John Morrice's estate absolute during all the 'sidue of the term. We shall have occasion to refer to the case greater length for other purposes. We mention it now for the | of citing a passage at p. 49: "Tittleton saith that it isa maxim in law, that land in fee- 'simple, &., may be charged by one way or other : so it was said, that it was a maxim in law, that every right or title, or interest, inpresenti or futuro, by the joining of all who may claim any 'sath right, title, or interest, may be barred or extinguished, and herefore upon the maxim which Littleton puts, it was concluded, that if at the common law the donor and donee in tail had joined ina grant of a rent-charge, and afterwards the donee had died "without issue, and the land had reverted to the donor, he should Iuld it charged, and yet he had but a possibility at the time of 'the charge made: But all those who had estate or interest in 'pntsenti or futuro, joined in the charge: . . . So upon the d maxim, if in the case at bar John Morrice, the elder, and Elizabeth had joined in a deed of assignment to another, ithout question it had utterly barred the said Elizabeth, for no tiher had interest either in praesenti or futuro, but those who 'joined in the grant. So when the husband of Elizabeth releases tohim in possession, both consented to it, one in releasing, the wther in accepting of it: And in the case when both join in the 'unt, it is the grant of him who has the term, and the release or imation of the other." 'The practical effect of the release was, therfore, to enlarge the estate of the tenant for life. These uthorities sufficiently establish that the beneficial interest in a 'entingent remainder was capable under some circumstances of assigned. But it was supposed to be settled that the

z bi use of John Morrice for life with remainder to the testator's H.C. or A.

• assignment could only be made by release. 'The rules ay, persons to whom a release of a right in land eould be made are stated in Littleton (Oo. Litt., 265b.) "Also, in rg of all the right which a man hath in certain lands, &e. it him to whom the release is made in any ease, that he ha freehold in the lands in deed, or in law, at the time of the rk made &e. For in every case where he to whom the rele made hath the freehold in deed, or in law, at the time of release We,, there the release is good" (see. 447), "But a

snyy cE them is good" (see. 450). It appears, then John Edwin's contingent remainder was prima facie ea being released to Michael, either regarded as tenant for remainder expectant on his mother's decease, or as joint remainder under the residuary de P

But it was said that a contingent remainder could not b assigned to a stranger, exeept by a fine, or, in equity, by a tract for valuable consideration. See the ease mention Fulwood's Case (1): "A man possessed of a term for di years, devised the profits thereof to one for life, and ater

devisee entered by the assent of the executor, and afte in remainder during the life of the first devisee assigned i another, and afterwards the first devise died; it was adj that the assignment was void, for he in remainder had h possibility during the life of the first devise." differed from Lampet's Case in that the attempted alienation m by way of assignment to a stranger instead of by release to th tenant for life. In Lampet's Case (2), after pointing out t reason of the rule which forbade the alienation of eonting interests to strangers - namely, that it would give rise toll tion and disturbance of peaceable possession, which was P Jacie evidence of title in fee, Lord Coke goes on to say: "Buta rights, titles and actions may by the wisdom and poliey of th law be released to the terre-tenant, for the same reason of (1) 4 Rep., 64, at p. 66). (2) 10 Rep., 46a, at p. 48.

we and quiet, and for avoiding of contentions and suits, that every one may live in his vocation in peace and y, And therefore a right or title to freehold or inheritance here it is not spoken of collateral powers) be it in provsenti jutro, may be released in five manners. (1) To the tenant of fvehold in fact, or in law, without any privity. (2) To him in

(4) To him who Jus ight only in respect of privity, as if the tenant be disseised, the Juni nay release his services in respect of the privity and right, ithout any estate. (5) In respect of privity only, without right; ssif tenant in tail makes a feoffinent in fee, the donee after the fiofnent has no right ; and yet in respect of the privity only, the donee may release to him the rent and the services, saving fealty: 'othe demandant may release to the vouchee in respect of privity 'ly, but no estate can pass by release, but to him who hath an

tate in privity, and not in respect of the right or privity only. Th Thomas v. Freeman (1) the Lord Keeper (Lord Cowper) id: "Tt is a notion that has obtained at law, that a possibility is not assignable ; but no reason for it, if res integra; but the law isnot so unreasonable, but to allow, that it may be released." In Higden v. Williamson (2), land was devised to the testator's daughter for life, then to trustees to be sold, and the money arising from the sale to be divided amongst such of her children asshould be living at her death. One of her sons became ban! ript during her life, and survived her, and it was held by Jekyll, MR, that his interest passed under the assignment to the Com- uissioners in Bankruptcy. He said that the son might, in his 'other's lifetime, have released his contingent interest, and it under the Statute 13 Eliz. c. 7, the Commissioners were tmpowered to assign over all that the bankrupt might depart witha" Lord Chancellor King affirmed the judgment, partly on 'this ground, and partly on the language of later Statutes relating toankrupts, It will be noticed that the contingency in this cas 'Nasidentieal with that now under consideration. Lord Hardwicke ws evidently of the same opinion: Wright v. Wright (3). In

y v. Jones (1) a testator had devised lands & brother Thomas until one of his younger sons should attain one, oF if he had only one son who should attain thatage i son should attain it, and then to that son in fee. 'Thongs i Younger son who died under twenty-one, 'his ede amag only son then living, having attained twent 'y-one, made a the lifetime of his.father (who might have married again ay other sons), and devised all his real estate to his wife They tion was whether the interest given by the original testator by the will. Tt was held by both Courts that the inten devisable. Lord Kenyon said (2 possibilities ;

"There are two kinds the one, a bare possibility ; that which the heir from the courtesy of his ancestor, and which is nothing more th a bare hope of suecession. Such a possibility undoubtedly isn the object of disposition; for if the heir were to dispose of

during the life of the ancestor, though it afterwards devolved him from his ancestor, such disposition would be void. 'The oth a possibility, or contingency, like the present, and whieh i different from the former." He concluded his judgment with words "T sincerely hope that the point will be now understol o be perfectly at rest." It is important to remember that at ti time a will as to realty spoke from its date, and only openal to pass land which the testator "had " at the time of executing it This, Lord Kenyon said, meant "having an interest in the ln Against these authorities reliance was placed on the caw d Doe d. Calkin v. Tomkinson (3). In that case a testator devi land " equally to my sisters Mary and Elizabeth or to the survimt of them and to be disposed of by her the survivor as she may will devise." Mary afterwards in the lifetime of Elizabeth a will devising the lands, and it was held that the devise ws ineffectual. 'The question again turned on the Statutes of 7 of Hy. VIIL The Court, without determining what was ti Precise estate given by the will of the original testator, held th Supposing it to be a contingent remainder it eould not be a ered as devisable, because the person who was to take it was in any degree ascertainable before the contingency happé

() 1H. BL, 30; 3 T.R., 88, (2) 3'T.R., 88, at p. 95. (3) 2M. &S., 165.

in whether he is the person who will be entitled to have He took a distinction between a power toa designated

re persona ers, emnarine upon this ease, Mr. aa sitamed note to Powell on Devises (3rd ed., vol. 1.,p. 30), remarks fllows: - " That under a limitation to several persons for life, ith remainder to the survivor in fee, no effectual will can be made

vill, namely, the death of the devisor, must determine his As the will, therefore, at the time of the execution could ui,from the nature of the contingency, ever operate upon the lingent interest, it could not be made effectual by subsequent stances, and consequently could not pass the estate subse- iuatly vested in the devisor by survivorship. For these reasons, 'is conceived, the case of Doe d. Calkin v. Tomkinson (2) rests qan unquestionable grounds; but the observation of Lord Ellen- vugh, that, as a contingent remainder, it was not devisable, ¢the person to take is not in any degree ascertainable before suntingency happens, does not, I apprehend, refer the ease to its principle, though it has been sanctioned by the most eminent at writers, vide 2 Prest. Abst. 96, who have given precisely the medefinition of contingent interests not devisable, referring, as 'example, to the case of a limitation to the survivor of several In opposition to these respectable authorities, the editor iuits first, that the person to take is not, in the instance in ton, less ascertainable than in many other cases, where the tis confessedly devisable; and that, therefore, this defini- fumnishes no distinction whatever. Secondly, that the only ance which characterizes the cases under consideration tof the contingency involving the event which alone can

call the devise into operation, viz., the death of the therefore, rendering it impossible for the contingent ints co-existent with the devise ; and for that, and 'that reason it is that such contingent interests are not devisablea.yy which also applies to prevent their being descendible

"What, we ask, is the nature of the interest of each ini of a number of persons, to the survivor of whom an limited? It is clearly as to him a contingent interest, depend on the event of his sur

ing his companion. It is precy same as if the lands were given to him nominatim on th contingency.

"This being admitted, we further ask, what is the differs between a limitation to A. if he survive B, and O. (the real mfan of the limitation in the last case), and a limitation to A.if Ba

under twenty-one, which was precisely the interest that inp

are in every contingent limitation), and the reason therefore wh the former interest is not devisable, and the latter is, mi sought for in some other circumstance.

"That cireumstance is, that the contingent interest of A.,ij determined in his lifetime by his surviving B. and 0. determine on his death; und therefore could not be the subj « testamentary disposition. By way of further illustration, sip pose the limitation, instead of being to the longest liver of persons, was to the shortest liver. It being just as uncer this case which will die first, as in the other which will li longest, (and in the case of two, the contingency being in fact tl same), the object to take must in each case be equally unast tainable, and yet it will not be denied, that the contingentinten

, Since it does not become vested until his death, and it would be descendible.

apply to the case put by Mr. Fearne, as illustrative of the contingent interests not devisable; a limitation to the right

nt of{J.S. cannot possibly take effect, because, it he die his father, as he does not become heir, the li therefore, the impossibility of the contingent interest sub- 'after the death of the devisor, that renders the interest mtdevisable. 'The point is not only of importance, with a view 'a correct understanding of the true principles which have ned these cases, but is of direct practical utility; for, if the do's proposition be correct, such an interest as that in Due di in v. Tomkinson, though not devisable by will, in conse- of the posthumous nature of the instrument, is alienable equity by a contract for a valuable consideration (see Wright Wright (1), whereas the commonly received objection excludes itfrom every species of alienation at law and in equity. The

tis, that if the foregoing observations are well founded, all

ngent or executory interests, or in other words all possibilities sable under the ee i

nt Ft be determinable by his death." Tnthe ease of Due d. Calkin v. Tominson (2), if the testatrix ad died immediately after the execution of her will, her chance f survivorship would have determined by her death, and there ould have been nothing upon which the devise could operate. And, as at that time a will spoke, as to real estate, from the time tfexecution, it is evident that a will which was inoperative when validity from subsequent events. In in v. Tomlinson proceeded itely upon the Statutes of Wills, and affords no assistance in 'termining the question whether a contingent interest dependent msurvivorship was assignable by an appropriate assurance. Reliance was also placed on the case of Zn re Ellenborough: lbory Law v. Burne (3), in which it was held by Buckley J. that fersmal estate to which a person may become entitled under the millor intestacy ofa living person is not assignable. But such an Y is obviously of the same kind as the possibilities of the class mentioned by Lord Kenyon in Doe d. Perry v. Jones (4).

• Byes Se. 40, (3) 1903 1. Ch, 697. (4) 1H. BL, 30;3T.R., 88,

aperson living. A will made by any person being heir H.C. or A

H.C. or A. The distinetion was very clearly pointed out by Kay Jin j

Parsons; Stockley v. Parsons (1), when the question was the spes successionis w

Property Act 1882. 'The learned Judge said (2): - « There such character in law as the heir of a living person or as statutory next-of-kin, There is a wide difference, for this between a gift to such of the 'children' or 'nephews' or 'kindred ' of A. who shall be living at his death, and a git totha who shall then be his statutory next-of-kin. During A's life may be children, nephews, or kindred. Each of them has prota sufficient interest, though contingent, to take proceedings to tect the fund: see per Lord Hatherley in Joel v. Mills (3). Son or all of them might be made defendants in an action to admin

the trusts. Neither of these things can be done where the g to statutory next-of-kin. They have no existence whate

kinship during that period. I am unable to agree with th judgments which consider these cases as parallel." E

The only authorities cited to us to the contrary were some passages in Preston, which are apparently based upon a ception of the effect of Doe d. Calkin v. Tomkinson (4).

For these reasons, we are unable to entertain any doubt th John Edwin's contingent remainder was capable of being rel to a proper person, or that Michael was a person capable of being releasee of it. As Lord Cowper said, "The law is not 9 unreasonable." Pi

By the post-nuptial settlement of 20th January, 1882, whie was expressed to be made " between John Edwin Caraher of first part, Emily Caraher, his wife of the second part, Joseph Caraher, gentleman, a trustee for the purposes after mentioned, and hereinafter designated trustee, of th third part," it was witnessed that John Edwin, in eonsiderat natural love and affection, and of 10s. did "grant bargain s@ alien and release unto the said trustee and his heirs All that

D,, Bi: (3) 3K. &J., 474. . D.s 51, at p. 63. (4) 2M. &S., 165.

lately and otherwise acquired by the said John Edwin er under and by virtue of the will of his late father Owen yr Caraher together with the rights easements and appurten- thereto belonging and all the estate right title and interest jim the said John Edwin Caraher in and to the said heredita- ts and premises respectively " to hold to the trustee and his wins to such uses as Emily Caraher should by deed or will int, and in default of appointment upon trust to permit her oreceive the rents and profits for her separate use for life and her death without making any appointment upon trust for the children of John Edwin and Emily Caraher who should attain ity-one or if daughters marry, with powers of advancement forthe benefit of infant children, and with an ultimate trust for Jom Edwin if he survived Emily. It appears, therefore, that Wichael was not a mere releasee to uses, but took the legal estate : Huston v. Hurton (1), and in certain events had active duties to reform. Until an appointment should be made the legal estate remained in him, and when it was made it would not operate ssa conveyance but as a limitation of a use, which would there- tyon be exeented by the Statute of Uses into a legal estate: Watkins, 8th ed., 337. It was suggested that the operative words of this deed are not sufficient to pass the contingent 'remainder in question. As to the intention of the parties, there tan be no doubt that it was intended to include in the settlement all John Edwin's interests under his father's will, of whatever Kind. The word "release" which is used in it is the apt word for ialing with a contingent remainder, The Courts, so far from ring astute to defeat the intention of the parties, will endeavour {to construe the words used that that intention clearly expressed may prevail. 'Thus, in an assurance from one joint tenant to wother the word "grant" has been construed as " release," wise the only effectual mode of conveyance between such faties was by release, and it was the evident intention of the Iarties that the deed should have the effect of a conveyance. In 'ur judgment, therefore, John Edwin's contingent remainder now question was effectually released to Michael by the settlement.

state and property of whatsoever nature and kind soever H.C. or A.

Tt remains to consider the effect of the release. On thiy tao arguments were addressed to us on behalf of the re

defeated if a release otherwise eligible were allowed to hality trust for a stranger. The latter argument prevailed Walker J. 4 The first argument, if successful, would be fatal to the daim both the appellants and the respondent, in which view we supe the respondent would be entitled to retain the judgment in li favour, The argument was based mainly upon the state (which is an exposition of logical consequences and not a 4 ment of law) contained in Mr. Butler's note to p. 266b of Co. in which he points out that releases may enure in four ways: () Per mitter le droit, where a disseisee releases to the disseisor: (3) Per mitter Vestate, as in the case of a release by one joint ter to another: (3) Per Yenlarger, as when the possession

le droit, as when the lord grants the seigniory to his tena Another illustration of such a release is given im the text at p 467b, viz., a rent charge. It is clear, from the instances gi that the word "extinguishment" is used of eases in which the right released is of such a character that by the release the to receive, and the duty to render, are united in the same persin Such a case is exactly analogous to the case of a debt or of a easement released to the owner of the servient tenement. But 5 obviously has no application to the case of a-telease, the effects

which is that the releasee acquires a larger estate in the either in quantity or quality, than he had before. That such the effect of a release of a contingent remainder to the tenant ft life, is apparent from the passages which have been read fom Lampet's Cuse. No doubt, from one point of view, it may ® said that such a release operates by way of extinguishmeth inasmuch as the liability of the heir of the releasee, if tenant . life, to be disturbed in his possession (which, as already pointe!

ing of the contingency, or of the releasee, if entitled in remainder, olave his enjoyment postponed, is ended or extinguished. But fhisis not the sense in which the word is used. A simple illus- 'ation will make the point quite clear. Suppose a devise to A. forlife, with remainder to B. in fee if he is living at A's death, 'gnd if he be then dead, to C. in fee. Tn this case, the estates of Band C. are contingent remainders. If B. and C. release their 'tates to A., can it be suggested that A. would not have the fee? 'The question is answered by the passage which has been quoted from Lampet's Case. talarge the estate of the tenant for life, although, like every other release, it in one sense extinguishes the right of the releasor.

The learned Judge from whom this appeal is brought did not. express any opinion on the points to which we have hitherto referred, and we have no reason to suppose that we are saying 'anything as to them inconsistent with his opinion.

We pass to the second point, which is singularly free from authority. On this point the learned Judge said: "Of course Mr. Loxton does not stop at this point, otherwise the argument would not avail him. He maintains further that the possibility was released conditionally, that is to say on condition that Michael should hold it on the trusts declared by the settlement. This is whee the argument in my opinion breaks down." He then quoted from Lampet's Case the reasons given for the rule against allowing the assignment of possibilities to strangers, and the following passage from Williams's Real Property 18th ed., p. 38: "With reference to a limitation to A. for his life, and if C. teliving at his decease, then to B. and his heirs: B., though he Insno estate during A.'s life, has yet plainly a chance of obtaining ein ease C. should survive. 'This chance in law is called a sibility, and a possibility of this kind was long looked upon 'uiueh the same light as a condition of re-entry was regarded, 'ving been inalienable at law, and not to be eonveyed to another Ty deed of grant. It might, however, have been released ; that is 'sy, B. might, by deed of release, have given up his interest the benefit of the reversioner in the same manner as if the gent remainder to him and his heirs had never been limited ;

js primd fucie evidence of an estate in fee) upon the happen- ¥- ©. or A.

H.C. or A. for the law, whilst it tolerated conditions of re-ent

tingent remainders, always gladly permitted such rights tobe rid of by release, for the sake of preserving unimpaited g vested estates as might happen to be subsisting" His Hom proceeded : "It seems plain that a release of a possibility a only permitted with a view to its extinction, and it i

opinion a perversion of the rule of law to apply it toa case: the releasee is intended to accept the release, not for his om benefit and to secure the merger or destruction of the interes

property purported to be settled never having come into hands of the trustee, it is inoperative also in Equity. There the title of the Official Assignee must prevail."

was the question put by Lord Hardwicke in Wright v. Wright "It is now established in this Court, that. a chose in action may

disposed of toa stranger, or to make him trustee for a stranger? An analogous point is raised by Fearne CR, p. 34 respect to the rule in Shelley's Case el that cases may arise, where the estate of freehold limited to ancestor may be so limited to him, in trust for some other person as a security for some charge, or to answer some other pal tieu purpose, and no usufructuary benefit be intended to the ance by such limitation. As a limitation to the use of A. during: life of B. in trust for B. or to pay her the rents and profits d her life, remainder to the use of the heirs of the body of A. some other cases which might be put, and which, though T do a J recollect to have met with in our books, have occasion') occurred to me in the course of practice. Now these areas which, I do not see, how we are to consider as falling within extent or application of the rule I have been treating of; be

onmon sense, to create or raise an estate tail to a man upon the und of a limitation (viz. the freehold limited in trust) by which yo beneficial interest at all was intended to him." On this, Mr. Butler remarks in a note: "With deference to Mr. Fearne - as Courts of law cannot take notice of any trusts charged on legal dates, the trusts or purposes for which the ancestor's estate of -frehold, in the eases proposed by him, is charged, cannot be a subject of their consideration, Courts of law, therefore, must treat the case merely as a limitation of a legal freehold to the ancestor, anda limitation of the legal fee to the'heirs of his body, and of 'course hold it to be a legal estate tail under the rule in Shelley's

Case. With deference to the learned Judge from whom we are

differing, it seems to us that the question of ownership of the legal estate is one thing and the obligations attaching to that ovnership are another. We are concerned here, first, to ascertain the legal ownership, as a matter of ancient conveyancing law, of "John Edwin's undivided one-seventh share in Michael's moiety inremainder. And we adopt Mr, Butler's words: " As Courts of Jay eannot take notice of any trusts charged on legal estates, the trsts or purposes for which the . . . estate . . . is hanged cannot be a subject of their consideration." The doctrine yasa purely legal one, and we do not know of any equitable uetrine that forbids a person who is capable of acquiring a legal "state in land from undertaking to hold it on any trusts he thinks fit, or that requires a Court of Equity to refrain from enforcing such trusts against him. We do not think it is accurate to say that the release to Michael was conditional upon his holding the Ind on the trusts of the settlement. 'The release is in terms absolute, and a trust cannot properly be described as a condition. Ifthe deed of 1882 had been a bare release to Michael and his wits, and he had thereupon executed a covenant to stand seised on the trusts contained in it, there could have been no doubt of the validity of the trusts, and the fact that they are contained in the same instrument cannot make any difference.

Weare therefore of opinion that the settlement was effectual to Ms the interest in question to Michael, and that the accretion or

jtcems absurd and inconsistent with any possible rule of Jaw or H- ©. ov A.

enlargement of his original estate which he thus was bound in his hands by the trusts of the settlement The first tenant for life, the widow, died in 1893 fm died in 1894, having never been married, John Edwin ands other ehildren of the testator survived him, and became en to his moiety as tenants in common in fee. In 1904 yih Caraher appointed the property comprised in the settlement toh co-appellant. In our judgment John Edwin's undivided seven Michael's moiety which became vested on Michael's death the upon passed to the appointee. 'The appeal must therefore h allowed on this point. : We have dealt with the question on the assumption that old doctrine, that a contingent remainder could not be ass

sideration, is good law. On this point the learned anthor alr quoted, Mr. Jarman, remarks in a note to Bythewood's Com anecing, vol. tv., 2nd ed., p. 225 : - " Since the period at which this doctrine was established, it has been settled also, that conti and executory interests are devisable: Jones y. Roe (1); consequently, that, at the happening of the contingeney, or,if happen in the testator's lifetime, then at the death of the te [Jackson v. Hurlock: (2)}, the lands vest absolutely in the devi But though such interests are releasable, and may be bound by: fine sur concessit, or by an indenture of demise by estoppel, will even pass by a devise, yet it is still strenuously maintait by an eminent writer, 2 Prest. Abst., 118; Prest. Shepp. Towel, 238, and the opinion is commonly entertained by the profess

that they are not transferable by deed. Recent decisions, ever, leave us little room to doubt, that, even if such interests not transferable by deed simply. they will pass by indenturgt by. an instrumentcapable of operating by estoppel. In Doe Oliver (3), it was held that a fine come ceo &c., levied by con tingent remainderman in fee, operated by estoppel only, until th } contingency happened, and then operated to vest the estate absolutely in the cestui que use of the fine. The same point, have seen, has been decided as to demises by indenture; and the

() 1H. BL, 30; 3 TLR, 88, (2) 2 Ed., 268. (3) 10 B. & C., 181.

jy remaining question tion of a demise, would pass the estate in such a case.

ing of the eases, which has applied the doctrine of estoppel fp indentures generally, and not to leases only: see Bensley v. Burdon (1); and the consequence therefore is, that an indenture grant, executed by a contingent remainderman or owner of an xeetory interest, would transfer such contingent or executory jnterst to the grantee, so that when the contingency happened the estate would vest in the grantee."

Inthe same note the learned author, referring to the question

ofthe release of contingent remainders, says (p. 226): - "If the contingent interest in such a ease be sold to the person in whom the vested fee resides, it may be released; unless, indeed, accord- ing to the doctrine of some writers, such interests can only be devised or released where ' the owner is ascertained': see Prest. Abstr, 283; but the fallacy of such a doctrine has been attempted {o be shown in a recent publication by the editor: see 1 Jar. Pow. Tex, 30,n, If the objection be applicable at all, it would apply to the present case (which indeed is admitted by Mr. Preston in another place: 3 Prest. Abstr., 255), for it is uncertain, during the life of A., whether any, or, if any, which of the children will become an object of the gift. Such an interest is clearly not devisable, for the same reason that it is not descendible, namely, because it cannot subsist as such after the death of the owner; for ifa child survived A., the parent, the interest would vest, and ithe died in A's lifetime, it would fail; so that the devise could ever operate upon the property as a contingent interest. This principle, however, does not apply to conveyances inter vivos} 'ind therefore, if there be no other reason why such an interest is tot devisable, it follows that it may be released; and such, it is 'Apprehended, is the sound conclusion upon the subject." _ An attentive consideration of the leading case of Doe v. Oliver 2) referred to by Mr. Jarman in the first part of the note just {uoted, will show that there is a great deal to be said in favour ithe view which he takes. But, as we have arrived at the con- tlusion (which is fortified by the second extract) that the settlement )28im, & St., 519, (2) 10B, & C., 181.

is, whether an indenture, not having the H. ©. or A.

« afirmative conclusion seems to be inevitable upon the general Gasawen

H. ©. or A. of 26th January, 1882, was effectual even on the contrary

tion, it is unnecessary to express an opinion on the point, g consider whether the settlement was such an indentureasto open, by way of estoppel. If it should ever become necessary to eon this point, the case of Tailby v. Oficial Receiver (1) may proaly afford some assistance.

With regard to the second devise, Walker J. held that th settlement of 20th January, 1882, operated as a forfeiture John Edwin's life estate, and that the intermediate rents profits, until one of his children attained twenty-one, fell in residue. On this point the decision is not appealed from, the learned Judge held that the interest of John Edwin residuary devisee quoad this property was merely the chance of his life estate being forfeited before any of his children hal attained a vested interest, (which is no doubt true), and that th interest was consequently contingent and not vested, and did ni pass by the settlement. 'The case of Eyerton v. Massey (2), which decided that the interest of a residuary devisee is vested and mt contingent, although it may depend upon the happening of eo tingencies whether the residuary devisee will ever take anything under the devise, was not cited to the learned Judge. If it had been, his decision on this point would doubtless have been the other way. There can be no doubt of the sufficiency of th settlement to assign all the vested interests of the settlor, The appeal must therefore be allowed on this point also.

The order appealed from must be varied by substituting fo the declaration, that the fund firstly in question belongs to the respondent, a declaration that it belongs to the appellants, with: consequent direstion for the payment out to them, but without prejudice to the rights of third parties preserved by 'the ort and by substituting for the declaration that the funds representing a portion of the residuary estate of the testator are, subject tothe payments mentioned in the order, divisible between the rept sentatives of Michael Caraher and the respondent, a declaration that they are, subject as aforesaid, divisible between Michae!! representatives and the appellants.

to the respohdent out of the fund now in question, and H.C. or A. ing him to pay to the appellants their costs of the adverse tbe on between them, aes

"The respondent must pay the costs of the appeal. ate,

Solicitors, for appellants: McDonell & Moffitt. Solicitors, for respondent: Allen, Allen &: Hemsley.

THE TROLLY, DRAYMEN AND CARTERS ) UNION OF SYDNEY AND SUBURBS J A"72414NTS: is

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Inlvtrial Arbitration Act (N.S.W.) (No. 59 of 1901), sec. 36 (2) - Preference to H.C. oF A. 'wiousts - Persons offering their labour at the same time - Notice to union of 1906.

labour required - Jurisliction of Court af Arbitration to compel - Prohhit ~ Construction of Statutes. Sypxer, June 13, 14, See, 36 sub-sec. () of the Industrial Arbitration Act (N.8.W.) 1901, provides, "yg"

_ inter alia, that the Court of Arbitration, in its award or by order made on the = _ application of any party to the proceedings before it, may "direct that a8 Grimey 0.7, between members of an industrial union of employés and other persons offering Harton and theit labour at the same time, such members shall be employed in preference

'The Court of Arbitration, in an industrial dispute between the appellantand

'ssponlent unions, made an award by which preference was ordered to be given

40 members of the appellant union on compliance with certain conditions as