argument that there can be nothing to bind the marital right of the husband until a decree is made. I think, therefore, that this appeal is wholly groundless and ought to be dismissed.

GREEN v. BRITTEN.

1863. August 1, 4. Before the LORDS JUSTICES.

A testator bequeathed his residuary personal estate, consisting partly of ships, to his sister B. (a married woman), subject to the legacy thereinafter bequeathed to T. and the commission directed to be paid to him, and subject to the directions thereinafter contained as to the conversion of ships. He appointed H. and T. his executors, and gave T. a legacy for his trouble, and directed his executors not to sell any of his ships for seven years from his death (unless the keeping them unsold should cause loss), and to work them, employing as much of his residuary estate as should be necessary for that purpose, and he gave T. an allowance of 500l. a year for his trouble while he should assist in managing them. By a codicil he stated that he still wished B. to have the residue, but directed that it should be invested in such manner as his executors should think fit, "in trust for her sole benefit during her lifetime," and that after her death it should be divided between her surviving children. Held, that the direction to keep the ships unsold for seven years was not revoked by the codicil, and that while they remained unsold B. took the actual income for her separate use.1

THIS cause came on for hearing on motion for decree and was heard by the Lords Justices in the first instance.

The suit was for the administration of the estate of * Mr. * 650 Richard Green of Blackwall, who by will dated the 2d of April, 1849, after various dispositions, which need not here be specified, of certain parts of his property, proceeded as follows: —

"And as to all the rest, residue, and remainder of my real and personal estate of whatsoever nature, kind, or quality the same

1 See Gilbert v. Lewis, ante, 38; Brown v. Gellatly, L. R. 2 Ch. Ap. 751, 757; Massy v. Rowen, L. R 4 H. L. 288. In interpreting a will and codicil the general rule is, that the whole will takes effect except so far as it is inconsistent with the codicil. Robertson v. Powell, 2 H. & C. 762; See Hearle v. Hicks, 1 Cl. & Fin. 20; S. C. 2 Bing. 475; Freeman v. Freeman, 5 De G., M. & G. 704; In re Arrowsmith's Trusts, 2 De G., F. & J. 474; Molyneux v. Rowe, 8 De G., M. & G. 368.

may consist at the time of my decease, I give, devise, and bequeath the same and every part thereof unto and to the use of my dear sister Emma, the wife of Daniel Britten, Esq., her heirs, executors, administrators, and assigns absolutely and for ever, subject however to the legacy hereinafter bequeathed to my friend Captain William Toller and to the commission hereinafter directed to be paid to him; and subject also to the directions hereinafter contained with regard to the conversion into money of my private shares in ships and the trust in connection therewith; and I do hereby nominate and appoint my brother Henry and the said William Toller executors of this my will, and I request the said William Toller to accept the sum of 1000l. for the trouble he will be put to as one of the executors of this my will; and I do hereby direct that my said executors shall not sell or convert into money any of my ships or private shares in ships for the period of seven years from the date of my decease, unless the keeping of them shall cause loss or diminution of my estate; and in such case I give unto my said executors a discretionary power to sell the same; but, subject as aforesaid, I direct that my said executors shall retain my said ships and shares of ships for the period of seven years at the least, upon trust to superintend and manage the same and to direct the voyages thereof, and to do and perform all such acts, matters, and things as may be necessary for the working and employment of the same in such manner as managing owners or proprie* 651 tors of such ships would do; and for that purpose I declare that my said trustees shall be at liberty to lay out and expend all the residue of my said estate, or so much thereof as shall from time to time be necessary or expedient for the successful working and employment of my said ships or shares of ships; and I further direct that the said William Toller shall be paid or be at liberty to retain for his own use, out of the managing owners' commission, for assisting in the management of the said ships, the sum of 500l. per annum, in addition to the said legacy or sum of 10007., during such time as he shall assist in such management."

*

The testator made a codicil dated the 24th of October, 1855, to the above will, and thereby, after giving several pecuniary legacies, he proceeded as follows:

"I still desire that my sister Mrs. Daniel Britten should have

the residue of my property, but I particularly desire that the same should be invested in any way my executors think proper, in trust for her sole benefit during her lifetime, and at her death it is to be divided equally between her surviving children. I Richard Green declare this codicil and the contents of my will (except what is therein stated with reference to Mrs. Daniel Britten) to contain my wishes, and I desire that no lawyer shall dare to attempt to upset them, and any person interested in my effects that interferes with my executors in carrying out my wishes shall forfeit all their claims to any of my effects, and that the same shall be given to charities."

The testator made several other codicils, but they contained nothing material to the question argued at the hearing as to the rights of Mrs. Britten with respect to the ships.

The bill was filed by the executors to have the trusts * of * 652 the will carried into execution, various difficulties having

arisen, as to which it was necessary to obtain the direction of the Court.

Sir H. M. Cairns and Mr. Cumin, for the plaintiffs, the executors. The scheme of the will is to keep the ships unsold for seven years and to continue the employment of them. The first question in the case is, whether the earnings of the ships ought to be treated as interest, together with instalments of capital, and the tenant for life ought to receive only 41. per cent on the capital, or whether she ought to receive the whole earnings. Meyer v. Simonsen (a). lays down the principles applicable to these cases. The other question is, whether the codicil revokes the direction in the will to keep the ships unsold.

The Solicitor-General (Sir R. PALMER), Mr. Giffard, and Mr. Hawkins, for Mrs. Britten, the tenant for life. We do not wish the ships to remain unsold; but we say that while they are unsold the tenant for life is entitled to the whole earnings. The gift to Mrs. Britten by the will was absolute, and an absolute gift cannot be controlled by any directions as to the mode of its enjoyment, where the donee is sui juris. The trust in the will is simply for manage

(a) 5 De G. & Sm. 723.

ment, without any directions as to investment. The codicil substitutes an entirely new scheme of disposition, and a tenancy for life being there introduced, directions as to investment are for the first time given. The direction for investment applies to the whole residue, and is inconsistent with the direction to keep the ships unsold, which it therefore revokes. The ships therefore should be sold; but while they are unconverted, Mrs. Britten takes the whole earn*653 ings. Alcock *v. Sloper, (a) Burton v. Mount, (b) Morley v. Mendham, (c) Skirving v. Williams, (d) which closely resembles the present case; Rowe v. Rowe, (e) Simpson v. Lester. (g) She takes to her separate use: Ex parte Ray, (h) Taylor v. Stainton, (i) Jarm. Wills, (k) and therefore can concur in getting rid of a direction not to sell.

Mr. Rolt, Mr. Willcock, and Mr. J. H. Taylor, for parties entitled in remainder. We contend that there is nothing to take the case out of the ordinary rule that the tenant for life is entitled to no more than 47. per cent on the value of property which ought to be converted. In all the cases referred to on the other side, the income was given in terms which would carry income from whatever source. This case, where only the income of the investments authorized by the codicil is given, stands on quite a different footing. The postponement of sale is a measure for the benefit of all parties, not for that of the tenant for life only.

Sir H. M. Cairns, in reply. The direction for non-conversion of the ships will fit perfectly well into the codicil, and cannot be treated as revoked by it. It is a direction which the parties are not competent to get rid of.

Judgment reserved.

* 654

August 4.

* THE LORD JUSTICE KNIGHT BRUCE. I think that the ships in question in this cause ought to remain unconverted

(a) 2 Myl. & K. 699–702.

(b) 2 De G. & Sm. 383.

(c) 2 Jur. (N. S.) 998, V. C. W.

(d) 24 Beav. 275.

(g) 4 Jur. (N. S.) 1269, V. C. K.

(h) 1 Madd. 199.

(i) 2 Jur. (N. S.) 634, V. C. W. (k) Vol. 2, p. 22.

(e) 29 Beav. 276.

for the period of seven years from the testator's death, subject to the discretion of the executors to sell them if the retaining them unsold should cause loss to the estate. I think that while they thus remain unsold, the income derivable from them belongs to Mrs. Britten for her life for her separate use. She being willing to insure the ships, no question arises as to their insurance.

THE LORD JUSTICE TURNER. -- Two questions are raised on the construction of the will and codicils of the testator in this cause. First, whether the trust created by the will for retaining the testator's ships and shares of ships unconverted for the period of seven years is superseded by the codicils to the will; and secondly, whether, if this trust be not so superseded, Mrs. Britten as tenant for life of the residue is entitled to the whole income to be derived from the ships and shares of ships during the seven years for which they are to remain unconverted.

As to the first of these questions, I am of opinion that upon the true construction of the will and codicils the ships and shares of ships ought to remain unconverted for the period of seven years, subject, of course, to the discretion of the executors to sell any of them in the event of their causing loss to or diminution of the testator's estate. I think so for this reason, that the gift of the residue by the will is expressly made subject to the trusts for retaining the ships unconverted, and that the first codicil therefore only takes effect subject to those trusts. This codicil, it is true, alters the disposition of the residue, but it alters the *655 disposition only of what is residue, and the residue is only what remains after answering the particular trusts as to the ships and shares of ships. The will cannot, as it seems to me, be construed otherwise than as if the trusts of the ships and shares of ships had preceded the gift of the residue, in which case I apprehend there could be no doubt that these trusts would have remained unaffected by the first codicil.

As to the second question, my opinion is that Mrs. Britten is entitled to the whole income to be derived from the ships and shares of ships during the seven years for which they are to remain unconverted. The direction that this property should not be converted during the seven years is tantamount to a direction that it shall remain in specie during those seven years, and the property being part of the residue subject to the trust of its remaining in