claim any property in pursuance of this Act in cases where an application in writing has been made to him by any person interested in such property requiring such trustee to decide whether he will disclaim or not, and the trustee has for a period of not less than twenty-eight days after the receipt of such application, or such further time as may be allowed by the Court, declined or neglected to give notice whether he disclaims the same or not."

The trustee until so called upon in writing to decide has an unlimited time to disclaim or not. If the trustee does decide to dis claim, he must give up the fixtures in and about the demised premises, and notwithstanding the fact of there being an express power to remove fixtures after its determination being contained in the lease. (Re Latham, Ex parte Gregg, 51 L. J. Ch. 367; and see Re Fussell, Ex parte Allen, 51 L. J. Ch. 724.) The trustee before disclaiming a lease is bound by the rules to obtain the leave of the Court to do so. If leave is given, and immediately thereafter the trustee executes an unqualified disclaimer, the lessor cannot appeal from the decision of the registrar giving the leave. He should have applied to the registrar when he made the order to stay proceedings pending an appeal. (Ex parte Sadler, Re Hawes, 51 L. J. Ch. 201.)

The effect of a disclaimer under the above Act is not so as to surrender the lease to the lessor absolutely, like a disclaimer at common law, but only to surrender the lease so far as it is necessary to aid the bankrupt or liquidating debtor and his estate from all liability under the lease, and no further.

The effect is shown by the differing facts likely to arise, as, for instance,

(a.) If there is a lessor and a bankrupt lessee, and the trustee disclaims, the lease and fixtures are surrendered to the lessor, who can prove against the estate for any damage he has sustained thereby.

(b.) If there is a lessor, lessee and assignee and the assignee becomes bankrupt, and his trustee disclaims, the lease is determined so far as the assignee is concerned, but still exists so as to enable the lessor to sue the lessee upon his original covenants contained in the lease. (Smyth v. North, 41 L. J. Ex. 103; East and West India Dock Co. v. Hill, 52 L. J. Ch. 44.

(c.) If there is a lessor, lessee and under-lessee, and the underlessee becomes bankrupt, and his trustee disclaims, the same result follows as in the last case.

(d.) If there is a lessor, lessee and under-lessee, and the lessee becomes bankrupt, the lessor cannot sue the under-lessee, but he can distrain for the rent reserved by the lease, though that is double the amount he has covenanted to pay in his under-lease. The under-lessee will obtain leave to prove against the bankrupt's estate for any damage he incurs by the disclaimer upon the trustee applying for leave to disclaim. (Ex parte Walton, Re Levy, 50 L. J. Ch. 657; L. R. 17 Ch. D. 746.)

(e.) Where the lease is deposited by way of equitable mortgage, and the lessee becomes bankrupt, and his trustee applies for leave to disclaim, he will not be allowed to do so to the prejudice of the mortgagee.

It is still a moot point whether if a trustee of an assignee disclaims under the above Act, and the lessee pays the rent under his covenant, the lessee is entitled to take possession of the premises as against the lessor. It is laid down by the cases of Re Latham, Ex parte Gregg, and Re Fussell, Ex parte Allen, supra, that the original lessee becomes liable to pay the rent and perform the covenants contained in the lease upon the failure of the assignee to pay the rent and perform the covenants through his bankruptcy or otherwise.

104. B., a lessee for a term of years, sublets to A. by deed for a shorter term. B. afterwards becomes bankrupt, and his trustee disclaims B.'s interest in the premises under the lease to him, pursuant to the provisions of the Bankruptcy Act. Thereupon C. (B.'s lessor) brings an action against A. to recover possession of the demised premises.

First. Is the action maintainable?

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Secondly. Supposing it is not. What would the estate of C. be in the premises, and under what (if any) statute?

Give reasons for your answer.

No; the true construction of sect. 23 of the Bankruptcy Act, 1869, with respect to the effect of a disclaimer of a lease by the trustee, with the leave of the Court, is that such a disclaimer is in its opera

tion limited to relieving the estate of the bankrupt and his trustee from liability, and if by operating thus the rights of any one are, as regards the enforcement of liabilities against the bankrupt or trustees, interfered with by the disclaimer, they can prove against the bankrupt's estate for the amount of the injury they may have sustained. The rights, however, of third parties like the under-lessee here are not affected by the disclaimer. The estate, therefore, of C. is that of owner subject to the rights of the under-tenant (A.) created by the under-lease. (Ex parte Walton, Re Levy, 50 L. J. Ch. 687; L. R. 17 Ch. D. 140; The East and West India Dock Co. v. Hill, 52 L. J. Ch. 44.)

LEGACIES.

105. Define and illustrate general, specific, and demonstrative legacies; and explain the practical distinctions between them.

A general legacy is one which does not relate to any individual thing or sum of money as distinct from other things of the same kind, or other moneys: for instance, a bequest of "a horse" of one thousand pounds" or of "one thousand pounds stock."

A specific legacy is a bequest of a particular thing, sum of money, or debt, as distinquished from all others of the same kind. For instance, a bequest of "my horse Dobbin," "the five hundred pounds contained in my safe," or "the debt owing to me by B."

A demonstrative legacy is one in which, together with words of general description such as would create a general legacy, are used additional words pointing out a particular fund out of which it is to be satisfied. For instance, a bequest of "one thousand pounds out of my East India Stock."

The practical distinctions are that (1) a general legacy is liable to abatement on any deficiency of assets, but a specific legacy is not, at least until the funds provided for payment of the general legacies are exhausted; (2) a general legacy, however, is not, like a specific legacy, liable to ademption, except where the doctrine of satisfaction of legacies by portions comes in.

A demonstrative legacy is so far like a specific legacy that it will not abate with the general legacies until the fund out of which it is payable is exhausted, and it is so far like a general legacy that it is not liable to ademption by the alienation or non-existence of the property pointed out as the means of paying it; that being only the primary fund for payment. (Snell's Equity, 5th ed., 179-180; H. A. Smith's Equity, 516-527.)

106. Is there any and what difference as to vesting, and as to carrying interest, between legacies charged on land and legacies payable out of personalty?

The law favours the immediate vesting of legacies payable out of personalty, whilst it leans against the vesting of legacies charged on land until they become payable, unless the payment is postponed for adventitious reasons. The reason for this distinction lies in the fact that wills containing legacies payable out of personalty were construed anciently according to the principles of the civil or Roman law, whilst wills of realty or affecting realty were construed according to the principles of the ancient common law, which favoured the heir. For an instance of the former, take Pawlett v. Pawlett, and of the latter take Stapleton v. Cheales (both found in Tudor's Leading Cases, pp. 720 and 724, respectively, and read the notes to those cases, and the cases of Hanson v. Graham, in Haynes's Student's Leading Cases, 226.)

Again, legacies charged on land carry interest as from the date of the testator's death, whilst general legacies not so charged carry interest as from one year after the testator's death, unless the testator expresses a contrary intention in his will, or unless the legacy is given in satisfaction of a debt or a widow's dower, or to an infant who is not otherwise provided for, or is specific, or is demonstrative so long as its proper fund pointed out by the will for payment remains. In the excepted cases, the legacies bear interest like legacies charged on land, at the rate of £4 per cent. from the testator's death. (H. A. Smith's Equity 526, 527.)

107. A legacy is bequeathed in trust for A., a minor, absolutely, to accumulate until he should attain the age of twenty-five years, and then to be paid to him, with the accumulations. What are the

rights of the legatce with regard to the payments of the legacy, and what is the principle governing the case?

The trust to accumulate after A. is enabled to give a valid discharge for the legacy, that is after he has attained twenty-one, being inconsistent with or repugnant to an absolute gift of such legacy, is wholly void. A. will, therefore, immediately on his attaining twenty-one be entitled to demand his legacy with the accumulations which have accrued thereon up till then, and if he is refused, he can recover it. (See Bradley v. Peixoto; Tudor's L. C., 3rd ed., 968; Haynes's Student's Leading Cases, 162.)

108. A testator gave real and personal estate to trustees upon trust for his son, to vest in him on his attaining twenty-one, but if he should die under twenty-one, or having attained twenty-one, should die without having made a will, then upon other trusts declared by the will. What estate did the son take, and what is the rule of law

governing the case?

The son in this question, like A. in the last question, takes an absolute interest contingently on his attaining twenty-one, both as regards the real and personal estate, and upon the same grounds as those stated in the last answer; that where there is a gift with a condition inconsistent with and repugnant to such gift, the condition is wholly void; and, accordingly, the limitation to take effect on the son dying after twenty-one without having made a will is void. (See Bradley v. Peixoto, supra.)

109. A testator devises all his real estate and bequeaths his personal estate to his sons A. and B. (his only children), in equal shares. A. dies in the testator's lifetime, a bachelor and intestate; B. survives A., but dies in the testator's lifetime leaving children, and having by his will devised and bequeathed all his real and personal estate to his widow. Who is entitled to the testator's real and personal estate? Give the grounds of your answer.

To deal with B.'s share first, that share will not lapse, but will, under sect. 33 of 1 Vict. c. 26, devolve as if B. had survived the testator, i.e. it will devolve upon B.'s widow under B.'s will, provided (1) B. is a child of the testator (which he is), and (2) B.