that the representatives of H. W. M. Lyte were in the actual possession and enjoyment of the estate, not by virtue of the limitations contained in the will, but under the disentailing deed and will of H. W. M. Lyte; that, therefore, they did not fulfil the condition any more than a mere stranger to whom they might have sold the estate, and that they therefore were excluded from the legacy; that in like manner E. M. Lyte could not take the legacy, for that he did not fulfil the first part of the condition, namely, that of being in the actual enjoyment and possession of such rents; and that consequently no one could take the chattels under the words of the bequest, and that, as a matter of course, they fell into the residue as undisposed of, and as such must go to the widow as residuary legatee, and ought now to be delivered to her legal personal representative. The following cases were referred to: Foley v. Burnell, 1 Bro. C.C. 274. 9 Ir. Eq. Rep. 577; 1 H.L. Cas. 671. The MASTER OF THE ROLLS.-The question is, to whom, under the words of this will, and the circumstances which have happened, do the chattels given in the nature of heirlooms belong? Under the limitations of this will, no one could be in the actual possession and enjoyment of the testator's freehold estates during the life of the testator's son, John Maxwell. None of the cases usually cited on these gifts exactly govern this case. Foley v. Burnell and Vaughan v. Burslem were relied on for the representatives of Henry W. M. Lyte; but they do not apply. These cases determined that where an estate was limited to one for life, with remainder to his first and other sons in tail male, and in addition to those chattels were bequeathed to go as heirlooms, in conjunction with the real estate, as nearly as the rules of law and equity would permit, the chattels in that event vest absolutely in the tenant in tail in remainder as soon as he is born; and it is argued that such is the case here, that Henry William Maxwell Lyte filled that character, and that consequently the chattels vested in him. But there is an obvious distinction between those cases and the present. If those cases apply, it necessarily follows that the chattels vested absolutely in Henry William Maxwell Lyte immediately on his birth; and that if he had died on the following day, still they would have passed to his legal personal representatives. But it is impossible so to hold. It is true that his interest in the freeholds was a vested interest; but still it was an interest liable to be devested. It was an interest dependent on the circumstance of John Maxwell, the son of the testator, dying without leaving issue. In Foley v. Burnell and Vaughan v. Burslem the son had an indefeasible interest as tenant in tail. If he lived long enough, no circumstance could have prevented his becoming absolutely entitled to the possession and the enjoyment of the devised real estate. That is not so here. If it were now held that the chattels vested absolutely in H. W. M. Lyte this result would follow that if a testator having five or six sons were to devise the estate to each in succession for his life, with remainder on the death of each to his first and other sons in tail male, that is, to A. the first son for life, with remainder to his first and other sons in tail male, and in default of such issue to B. the second son for life, with remainder to his first and other sons in tail male, and so on; and if chattels were limited to go with the real estate as heirlooms, then the first grandson of the testator born would take the chattels. The birth of a son to B, or to any one of the younger sons, two or three months before the birth of a son to A, the eldest, would deprive A.'s son of the whole of the interest in the chattels which were limited to go with the estate. This certainly is not decided by Foley v. Burnell or Vaughan v. Burslem, nor are any words to be found in those decisions, as it appears, from which any such conclusion, or anything approaching to such a conclusion, can be formed. It would also appear to be a very strained and technical construction, and one leading to a result which obviously defeats the intention expressed by the testator. All that is decided by these cases, if applied to the limitations and bequest con tained in this will, is, that these chattels would have vested in a son of John Maxwell, had any one been born to him at any time before his death, and that they would have vested in such son on his birth; but they do not decide that, while that event was doubtful, and while in the mean time no one was in the possession or enjoyment of the rents under the limitations contained in Dr. Maxwell's will, these chattels would vest absolutely in any one. If this be so, these cases have no application; and as the tenancy in tail in Henry William Maxwell Lyte was defeasible during the whole period of his life, I am of opinion that he took no interest in the chattels bequeathed, and that no one claiming under him can support any claim to them for that purpose. Then, as to the case of Edward Maxwell Lyte, and how his claim would have stood if no disentailing deed had been executed. In that case it seems clear that Edward Maxwell Lyte would have been entitled to these chattels absolutely. Immediately on the death of John Maxwell, the son, Edward Maxwell Lyte would, but for this disentailing deed, have become indefeasibly tenant in tail in the actual possession and enjoyment of the real estate. It is not easy to perceive what sound argument could have been alleged to deprive him of the right to these chattels. It is the plain meaning of the words used by the testator; he would have fulfilled the words of the description of the legatee contained in the will with perfect accuracy; he would have been the first person in actual possession and enjoyment of the real estate under the limitations contained in the will. If the chattels had been given, or if the Court finds the words of the will to import a gift of them to the first person who had a vested indefeasible estate of inheritance in the real estate, he was the first person who had such estate; and if the matter then stood between the representatives of Henry William Maxwell Lyte and his son, Edward Maxwell Lyte, there could be little hesitation in determining the son to be entitled to the plate. Has the disentailing deed, executed by his father and grandmother, deprived him of the right to such chattels? This deed could only operate to create a base fee in the property in remainder in Henry William Maxwell Lyte. If it did, and it must be assumed to be the case, then, if the construction of the decisions of Foley v. Burnell and Vaughan v. Burslem is correct, the only question that can arise lies between the residuary legatee and Edward Maxwell Lyte, as to their respective rights. For the residuary legatee, it is contended that the words "actual possession and enjoyment of the estate," import, as a condition precedent, that the legatee should be in the physical perception of the rents and profits arising from the devised estate. But this is not my opinion. The words of the will are satisfied by the vesting in the legatee of the right to the actual possession and enjoyment of the real estate. If so, Edward Maxwell Lyte is clearly the person entitled to the plate. He is the person who, under the limitations contained in the will, that is, regarding them and them alone, undisturbed by any foreign cause, is entitled to such possession and enjoyment, unless such limitation had been defeated by a foreign circumstance over which neither the testator nor the legatee had any control, and would have been so entitled. It is plain that the disentailing deed, which has no operation over chattels, could not in any degree affect the devolution of them. They must go exactly as if such deed had never been executed; but the effect of the contention of the residuary legatee is to hold that a disentailing deed operated so as to create an intestacy in this disposition of the chattels against the will of the testator. The consideration of the cases of Potts v. Potts and of Lord Scarsdale v. Curzon confirms the view I take; in the last case it was never intended to draw or establish any distinction between the right to the enjoyment of the estate under the limitations of the will being united to the actual enjoyment of it and the mere right to such enjoyment, not coupled with the actual possession, which failure of the actual possession was occasioned by reason of some disturbing causes having destroyed the further operation of those limitations upon the estate devised. Whether such failure be occasioned by a disentailing deed or by natural causes cannot make any difference. In both cases the right would exist under the limitations of the will taken alone; but in neither case could that right be enforced. My meaning may be illustrated by suggesting such a case as this. Suppose that the chattels had been given in the words of this will, and that the real estate in the actual possession and enjoyment of which the legatee was to be, had been a small messuage on the east coast of England, and that during the life of John Maxwell, the house and ground had been swept away by some inroad of the sea, so as to render it impossible after that calamity for any one to be in the actual possession and enjoyment of it-could it be contended that such an event created an intestacy in the bequest of the testator? It would be impossible so to hold. But if this be so, and if, in such an event, Edward Maxwell Lyte would have been entitled to these chattels, how does the case differ, because the act which prevents such enjoyment is the act of man instead of being the act of God? The rights under the will remain the same. The meaning expressed by the will is obvious. The testator, in the events which have occurred, has expressed his intention in plain words in his will that Edward Maxwell Lyte should take the estate and the plate. A disentailing deed, which the testator could not prevent, has enabled two persons, now deceased, to defeat this intention as far as regards the estate. The intention of the testator as regards the plate could not be defeated by them. No deed would affect it. Why is that intention not to take effect? I am of opinion that no valid reason can be assigned against that proposition; and, in every way of viewing. this case, I am of opinion that Edward Maxwell Lyte is entitled to the plate bequeathed. executrix and heir-at-law of her father's will to carry into effect a promise made by her father to her intended husband before their marriage to leave her a share of whatever property he might die possessed of. The husband was made a defendant to the suit. Mr. Selwyn and Mr. Piggott, for the plaintiff. Mr. Southgate and Mr. F. H. Colt, for Emma Fielder, the executrix, at the hearing of the cause, objected to the frame of the suit. It was informal. If there was any agreement it was made with the husband to leave property to the wife, not to the husband. He, however, would have a right to receive it; but she was entitled to a settlement on herself. They ought, therefore, to be co-plaintiffs. The MASTER OF THE ROLLS.-The engagement was made by the father through a letter written to the husband. The promise was made to him to leave a benefit to her; but if the wife had died, would not the husband have been entitled to it? It was clear that the contract was intended for the advancement of both. The bill must therefore be amended. The name of the next friend must be struck out, and the name of the husband introduced as a plaintiff with his wife. Contract- Marriage-Daughter's Portion-Promise. A father, in contemplation of the marriage of his daughter, wrote to her intended husband, saying "that she should be entitled to her share in whatever property he (the father) might die possessed of." The father by his will gave to his daughter only a life interest in a portion of his property, and died, leaving real and personal estate. Upon a bill by the husband and wife,-Held, that the letter did not affect the real estate, but that it bound the father to leave his daughter a legal share of the personalty equal to what she would have taken if he had died intestate. Henry Laver, in 1844, made proposals of marriage to Elizabeth, the only daughter of John Fielder by his first marriage. He wrote to her father stating the particulars of his property, and asking him to make a suitable settlement on his daughter. Mr. Fielder asked for an interview, and after stating the position of his property, made propositions to Mr. Laver, which, after consideration, he found himself unable to comply with, and he requested that some other arrangement might be made. Mr. Fielder accordingly said he would give his daughter 100l. a year for his life, and that at his death he would give her one-third of his property during his widow's life, and upon her death an equal half with his son, John Henry Fielder, by his second marriage. Mr. Laver considered that the allowance by J. Fielder of 100l. a year during his life was not a proper provision considering their position in life; and in consequence of an angry letter from Mr. Fielder, the negotiation for the marriage was broken off. Subsequently, Mr. Laver wrote to Mr. Fielder, and received in reply a letter containing the following passages: "Trafalgar Square, 1st of April 1845. "Dear Sir,-My daughter has given me a letter from you, in which you say you are willing to marry her if I will give my consent. ** I still adhere to my last proposition, viz., to allow Elizabeth 1007. per annum, and (if you like the situation) one of my houses to reside in; and that at my decease she shall be entitled to her share in whatever property I may die possessed of. As to all other matters, I shall leave it entirely to you and her, she being now, as I consider, of sufficient age to judge for herself." The marriage was solemnized in July 1845. No settlement was ever made; but the 1007. a year was paid by Mr. Fielder to his daughter up to the time of his death; but Mr. and Mrs. Laver never occupied any of his houses. John Fielder, by his will, dated the 22nd of July 1847, after a legacy of 500l. to his widow, gave the whole of his real and per sonal estate to his wife, Emma Fielder, and his daughter, Mrs. Laver, their heirs, executors, administrators and assigns, as to one third part thereof, upon trust to pay the rents and annual proceeds to his daughter for life; and after her decease, upon trust for his son John H. Fielder, his heirs, executors, administrators and assigns, upon his attaining twenty-one. As to one other third, upon trust to pay the rents, &c., to his wife for life; and after her decease, upon the trusts declared of the remaining one-third of his real and personal estate. As to the remaining one-third, upon trust for his son, his heirs, executors, administrators and assigns, upon his attaining the age of twenty-one years; and he appointed his wife and daughter executrixes of his will. By a codicil to his will, dated the 7th of June 1854, the testator directed his trustees to stand possessed of his residuary real and personal estate, upon trust out of the rents, &c., to pay his wife 350l. a year, so long as any mortgage debts should be unpaid, if his wife should so long live, and to his son J. H. Fielder 2007. a year, and unto his daughter, Elizabeth Laver, 150l. a year; and in case of the death of his wife before the mortgage-debts should be wholly paid, then, after her decease, his son was to receive 4007. a year and his daughter 2007. a year, in lieu of the 2007. and 1507. a year respectively; and the residue of the rents and annual proceeds of his residuary estate was to be set apart for the payment and liquidation of the mortgage debts and in cumbrances. The testator died the 29th of January 1859, leaving Emma Fielder, his widow, and Mrs. Laver, his daughter, by his first marriage; and John H. Fielder, his son by his second marriage, an infant, surviving. On the 18th of November 1859 a suit was instituted, by Emma Fielder, against Henry Laver and his wife, for the administration of the estate of the testator; and on the 11th of February 1860 a decree was made for taking the accounts, but no certificate has been made. John Henry Fielder attained the age of twenty-one on the 15th of October 1861. In April 1862 Mr. and Mrs. Laver were informed that the promise made by John Fielder, in the letter of the 1st of April 1845, amounted to a contract which could be enforced against his estate. This bill was then filed, asking that it might be declared that the testator was bound so to leave or dispose of his real and personal property, that after his death his daughter, Elizabeth Laver, might have a share of all, equal to that of his son and other children, and that such a share might be set apart for her. On the 29th of May 1862 Henry Laver sent a printed copy of the bill to J. H. Fielder, accompanied by a letter, in which, after referring to the letter of the 1st of April 1845, he said that he had been advised that it contained a promise which took precedence of the will, and that he had refrained from opening the question until he attained his majority; but that he had considered himself bound to act on the opinion given to him. The cause came on upon a motion for a decree. The plaintiffs desired to introduce parol evidence to shew what previous proposals were referred to in the letter of the 1st of April 1845. Mr. Selwyn and Mr. Piggott, and Mr. Davey, for Mr. and Mrs. Laver, insisted upon the validity of the contract, and that the words "whatever property" extended to the real as well as to the personal estate. It was not vitiated by lapse of time, or by the omission to raise the claim in the suit of Fielder v. Laver. It was not until April 1862 that the plaintiffs were informed of the effect of the letter. Loxley v. Heath, 27 Beav. 523; s. c. De Beil v. Thomson, 3 Beav. 469; s. c. nom. Hammersley v. De Beil, 12 Cl. & F. 45. Hutton v. Rossiter, 7 De Gex, M. & G. 9; s. c. 24 Law J. Rep. (N.S.) Barkworth v. Young, 4 Drew. 1; s. c. 26 Law J. Rep. (N.S.) Chanc. 153. Goldicutt v. Townsend, 28 Beav. 445. Mr. Southgate and Mr. F. H. Colt, for Emma Fielder and J. H. Fielder.-The only agreement is the letter of the 1st of April 1845. Parol evidence is inadmissible to support it or any subsequent declarations. The parol evidence, however, has proved an agreement distinct from any possible construction of the written agreement: it may therefore be made available for defence when the agreement is vague. The agreement is of twenty years' standing, and for three years there has been no impediment to the claim. It has been argued that the payment of the 1007. a year by the father to his daughter was a part performance of the agreement: it has no reference to the words "her share"; these words alone create ambiguity, even the plaintiff himself understood them in a different sense: they, no doubt, meant an equal share with his children, but they referred to something which had taken place in conversation between Mr. Fielder and Mr. Laver. In Kay v. Crook (1) a promise made by a father to recognize a son in his will in common with the rest of his family in future provisions was considered too vague. It is very clear, according to all the evidence given in this suit, that no contract such as this was in the view of either party. It is also equally clear, according to the settled practice of the Court, that the fact of a parol conversation being distinctly proved is, in itself, sufficient to bar the suit of the plaintiff for the specific performance of a written agreement, which in itself is vague and uncertain. The agreement also cannot interfere with the legacy given to the wife. Upon the strictest construction it would not have prevented Mr. Fielder from giving away any part of his property during his life, or from leaving any part of it to a stranger. The legacy to the widow therefore stands precisely upon that footing. The term "share" can only apply when the class to take is ascertained; it must then mean an equal share; nothing more is decided in Barkworth v. Young. In this case there is no contract either to make a will, or to die intestate: he did not say he would not make an eldest son. The class to take is not ascertained, consequently it is impossible to fix any definite meaning to the words "her share." The word "property" also introduces additional ambiguity: does (1) 3 Sm. & G. 407. |