trustent claim, not estates in land or rent, but charges on them which come within the provisions of the 40th and 42nd sections (a) and great difficulties were felt in deciding whether the 25th section applied in any way to save the rights of the cestui que trust in those cases (b). It was at one time decided in Ireland that it had no such operation, and that a legacy charged on real estate with a trust created for its payment, was not saved by the 25th section from the operation of the 40th section (c). But the opposite view has been upheld in numerous cases, and is sanctioned by the House of Lords (d); and it must be considered as now finally decided that, notwithstanding the lapse of the periods specified in the 40th and 42nd sections, an express trust, created by deed or will for the payment of debts, portions or legacies out of land or rent, may be enforced against a trustee under the exception in section 25, or one engrafted on that section by analogy. And, therefore, that when an estate is vested in trustees in trust to pay annuitants or raise a gross sum of money, lapse of time will not bar any part of the claim of the cestui que trust, so long as the trustees retain possession of the land or the right to recover the same.' (e)

(a) Messrs. Darby & Bosanquet here add, "and great hardships would be imposed on such a cestui que trust if he were barred of all remedy against a trustee holding on an express trust in his favour in the periods specified in these sections." But "hard cases make bad law."

(b) See Law v. Bagwell, 4 Dru. & War. 398, 408; St. John v. Boughton, 9 Sim. 219; Young v. Wilton, 10 Ir. Eq. Rep. 10.

(c) Knox v. Kelly, 6 Ir. Eq. Rep. 297 (supra); Burne v. Robinson, 1 Dru. & Walsh, 688.

(d) Burrowes v. Gore, 6 H. of L. Ca. 907, 961 (supra).

(e) Hunt v. Bateman, 10 Ir. Eq. Rep. 360; Dillon v. Cruise, 3 Ir. Eq. Rep. 70; Young v. Waterpark, 13 Sim. 204; 15 L. J. (Ch.) 63; Dundas v. Blake, 11 Ir. Eq. Rep. 138; Blair v. Nugent, 3 Jo. & Lat. 658, 668; Ward v. Arch, 12 Sim. 472; Gough v. Bult, 16 Sim, 323; Watson v. Saul, 1 Giff. 188; Cox v. Dolman, 2 De G. M. &. G. 592; Shaw v. Johnson, 1 Drew. & Sim. 412; Snow v. Booth, 8 De G. M. & G. 69; Mansfield v. Ogle, 2 L. J. (Ch.) 700; Lewis v. Duncombe, 29 Beav. 175; Re Wyse, 4 Ir. Ch. Rep. 297; Blower v. Blower, 5 Jur., N. S. 33; Lawton v. Ford, L. R., 2 Eq. 97; Burrowes v. Gore, ubi supra.

"Mr. Brown, in his able work on the same subject, lays down the doctrine deducible from the cases equally broadly:

'As against the trustee and any person claiming through him without value, and whilst the relation between [the trustee or such person and the cestui que trust] continues, the right of the cestui que trust, in general, remains unaffected by time (a). The statute was not designed to interfere with the well-established principle of equity, that, as between an express trustee and cestui que trust, length of time creates no bar."" (b)

Mr. Banning, in his work on limitations, p. 189, says: "A difficult question arose on the construction of 3 & 4 Will. IV. cap. 27, as to whether section 25 (c), by which the saving as to express trusts is created, extends to the subjects dealt with in sections 40 & 42 (d) of the Act, namely, on money charges on land or rent. It was at one time held otherwise in Ireland (e), but this view was not upheld by the House of Lords (ƒ); and it is now established that when land or rent is vested in trustees upon express trust to raise legacies, annuities, or other charges, time will not run as between trustee and cestui que trust as to any part of the principal or interest of such charges." (g)

(a) Attorney-General v. Flint, 4 Hare, 147; Daly v. Kirwan, 1 Ir. Eq. Rep. 163; Dillon v. Cruise, 3 Ib. 83; Hunt v. Bateman, 10 Ib. 360; Francis v. Grover, 5 Hare, 39; Phillips v. Mannings, 2 Myl. & C. 309; Petre v. Petre, 1 Drew. 317; Evans v. Bagwell, 2 Con. & L. 617; Tyson v. Jackson, 30 Beav. 384; Young v. Lord Waterpark, 13 Sim. 204; 6 Jur. 656; 10 Ib. 1; Burrowes v. Gore, ubi supra; The Commissioners of Charitable Donations v. Wybrants, 2 Jo. & Lat. 182.

(b) Hunt v. Bateman, 10 Ir. Eq. Rep. 360. See Brown on the Law of Limitations as to Real Property, Bk. IV. chap. iv. s. 3, p. 497; Sugden's Vendors and Purchasers, p. 478, 14th Edit.; Dart's Vendors and Purchasers, pp. 352, 353, 4th Edit.

(c) Ontario Statute, s. 30.

(d) Ontario Statute, ss. 16, 17, 31.

(e) Knox v. Kelly, 6 Ir. Equity Reports, 279; Burne v. Robinson, 1 Dru. & Walsh, 688.

(f) Burrowes v. Gore, 6 H. L. 907.

(g) Ward v. Arch, 12 Sim. 472; Young v. Lord Waterpark, 13 Sim.

204, 10 Jur. 1 & 15, L. J. Ch. 63; Cox v. Dolman, 2 De G. M. & G. 592; Mutlow v. Bigg, L. R. 18.

The present section appears to have nullified the old decisions with regard to express trusts, so far as limiting the time to ten years and six years for bringing an action to recover a legacy or arrears of interest, as the case may be, "secured by an express trust."

"An express trust must be actually expressed by deed, will, or other writing, and in such way as to vest the legal estate in the trustees. 'To create an express trust,' says Lord Westbury (a), 'two things must combine; there must be a trustee with an express trust, and an estate or interest vested in the trustee."" (b)

DOWER.

25. No action of or suit for dower shall be brought but within ten years from the death of the husband of the doweress, notwithstanding any disability of the doweress or of any person claiming under her. 38 Vic. cap. 16, s. 14.

Proceedings to recover dower are regulated by Revised Statutes, cap. 55.

The case of Becker v. Hammond, 12 Chy. 485, which was a case in which the main question that arose was whether the widow was entitled to dower in addition to the provision made for her by the husband's will, deserves notice.

Part of the judgment of the present Chancellor Spragge, embodying, as it does, most of the law on that point up to the time of the judgment, I have here inserted:

"One can scarcely read the will without the conviction almost that the testator intended the particular provision that he made for her to be her sole provision. But the cases in favour of the widow having dower in addition to the particular provision made by the will are very strong. I may refer, among many others, to Foster v. Cooke (a), before Lord Thurlow; to French v. Davis (b), in which

(a) Dickenson v. Teasdale, 1 De G. J. & Sim. 52.

(b) Banning's Limitation of Actions, p. 189.

(c) 2 B. C. C. 347.

(d) 2 Ves. Jun. 572.

Lord Alvanley reviewed the previous cases; to Gibson v. Gibson (a), and Bending v. Bending (b). These cases and others are strong in favour of the dower. On the other hand is the late case of Parker v. Sowerby (c), and the case of Hall v. Hall (d), before Lord St. Leonards when Lord Chancellor of Ireland. It has often been observed that these cases are irreconcilable. Those in favour of the dower go mainly upon this, that the testator must be understood as disposing of his estate subject to his wife's dower, the wife's dower not being his own. With great deference to the opinions of the learned judges who have insisted upon this point, I cannot but think that in some cases they have pushed the doctrine rather far. They all, however, agree

It is not, perhaps, settled

that it is a question of intention. law that the circumstances of the estate of the husband being insufficient to satisfy the wife's dower, and also an annuity given to her by the will, will put her to her election. Mr. Jarmin calls it a fluctuating and unsatisfactory rule (e); but Pearson v. Pearson (f) is in its favour; and Lord Alvanley, in French v. Davis, referring to Pearson v. Pearson, spoke approvingly of the course that had been taken in that cause. Mr. Roper, in his Treatise on the Law of Husband and Wife, p. 49, states as the result of the authorities, that when the estate of the testator is insufficient to pay an annuity to the wife and to answer her dower, the intention will be apparent that the husband did not mean that she should be at liberty to enforce both her claims; and the same opinion is reiterated in the treatise on legacies (g). I ought to add that the learned judge who directed the inquiry in this case must, I apprehend, have been of the same opinion, otherwise the inquiry would be useless. It was, I believe, my late learned brother, ViceChancellor Esten."

(a) 1 Dy. 42.

وو

(b) 3 K. & J. 257.

(c) 4 D. M. & G. 321.

(d) 1 D. & W. 102.
(e) Jarmin on Wills, 430.
(f) B. C. C. 292.

(9) Roper on Legacies, 1427.

Vide also Westacook v. Cockerline, 13 Chy. 79; McLennan v. Grant, 15 Chy. 65. These cases all go to shew that the particular circumstances of the case have warranted the Court in holding that the widow is bound to elect; yet, where a testator by his will made provision for his widow, but did not express the same to be in lieu of dower, evidence for the purpose of shewing that he intended it in lieu of dower was held inadmissible. Fairweather v. Archibald, 15 Chy. 255. See also Davidson v. Boomer, 15 Chy. p. 1.

-Spragge, V.C.

In Fairweather v. Archibald, V. C. Spragge says: "It has long been settled law that a demise by a testator to his widow of part of the lands of which she is dowable is not inconsistent with her claim to dower in the residue; also, that a demise upon trust to sell of lands of which a widow is dowable is not inconsistent with her claim to dower in the same lands. The rule is, that if a testator has so devised any part of his real estate that the widow's claim of dower is inconsistent with carrying into effect the testator's whole intention, as expressed in his will, she is put to her election. The point in question has been decided by Sir Richard Kindersley, in Gibson v. Gibson, 1 Drew. 42 & 57." Vide Stewart v. Hunter, 2 Chy. Chambers, 336-Mowat; Hutcheson v. Sargent, 16 Chy. 78; Lapp v. Lapp, 16 Chy. 159. Held, entitled to an inquiry to ascertain whether the estate was sufficient to assume certain gifts in addition to the dower. Vide also 19 Chy. 608; Coleman v. Glanville, 18 Chy. 42; Lee v. McKinley, 18 Chy. 527.

A testator devised land to his children in tail with crossremainders, and, in the event of their dying without issue, to his brother; and directed his widow to receive the whole of the rents, &c., during widowhood; and in the event of her marrying, she was to receive one half thereof for life. Held, that the contingeney of the widow surviving all the children was too remote to put her to elect. Travers v. Gustin, 20 Chy. 106; Armstrong v. Armstrong, 21 Chy. 351; McGregor v. McGregor, 20 Chy. 450.