generally, that, in a devise of renewable leaseholds without the interposition of a trustee, the remainderman cannot oblige the tenant for life to contribute to the fine (c). And so it was determined even where the devise was expressly made " subject to the payment of all fines, and as they became due yearly and for every year (d).” But as the interest given is in its nature capable of renewal, the Court says, "If the tenant for life do renew, he shall not by converting the new acquisition to his own use derive an unconscientious benefit out of the estate (e)," but, on the remainderman's contributing to the fine, shall be regarded as a trustee, and shall hold the renewed interest upon the trusts of the settlement (ƒ). Whether the mere interposition of a trustee will sufficiently indicate an intention of obliging the tenant for life "In a to renew has never been precisely determined. devise to trustees," said Lord Hardwicke, "if cestui trust for life be one of the lives, I should doubt whether such cestui que trust could be compellable to contribute; but here all these lives were strangers: the intent of the testator certainly was, that the lease should continue, and be kept on foot, and something must be done for a renewal, though nothing is mentioned (g)." Lord Alvanley on one occasion alluded to the point, but said he was not called upon to decide it (h). In a late case, where the devise was to trustees upon trust to permit one to receive the (c) White v. White, 4 Ves. 32, per Lord Alvanley; S. C. 9 Ves. 561, per Lord Eldon; Stone v. Theed, 2 B. C. C. 248, per Lord Thurlow. (d) Capel v. Wood, 4 Russ. 500. (e) Stone v. Theed, 2 B. C. C. 248, per Lord Thurlow. que (f) Nightingale v. Lawson, 1 B. C. C. 440; Stone v. Theed, 2 B. C. C. 248, per Lord Thurlow; Coppin v. Fernyhough, 2 B. C. C. 291; Fitzroy v. Howard, 3 Russ. 225. (g) Verney v. Verney, 1 Ves. 429. (h) White v. White, 4 Ves. 33. rents for life, with remainders over, " subject to the payment of all taxes, fines, and expenses attending the premises," it was held the obligation of renewing the lease was imposed by the will (i). In Lock v. Lock (k) a testator had devised a college lease of twenty-one years to his wife for life, remainder to her son, she paying 107. per annum to the son during her life; and it was held, that, as the testator contemplated the continuance of the lease during the life of the wife, she was bound to renew. Where leaseholds of this kind are made the subject of a marriage settlement, it may be argued, that, as all the parties who have any interest given them are purchasers, the enjoyment of the tenant for life should be consistent. with that of the other subsequent takers. In Lawrence v. Maggs (1), the case of a settlement with trustees interposed, but without any mention of renewals, Lord Northington said, "The husband renewed twice; first, when he put in his own life, which was of no benefit to those in the settlement who were to take in remainder after his death; he renewed a second time, and put in his wife's life, and this he does voluntarily and without there being any directions for it in the settlement. The renewing the lease with any other life than that of the tenant for life is for the benefit of the remainderman, and he is to be deemed a creditor, keeping down the interest during his enjoyment." The plain implication from which remark is, that in his Lordship's opinion the tenant for life was considered not bound to renew. There appears to be no other authority upon the subject (i) Hulkes v.Barrow, Taml.264. (k) 2 Vern. 666. (1) 1 Ed. 453. Search has been made for this case in the R. L. through several years, but the decree has not been found. but what may be collected from Sir W. Grant's observations in Lord Montfort v. Lord Cadogan. "The proposition," he said, "that under the marriage settlement it was the duty of the trustees to renew, does not admit a question. The lease being made the subject of a settlement, it was clearly meant that it should be kept on foot by renewals. The trustees were to apply so much of the rents and profits as would be necessary for that purpose. They are not in so many words directed to renew, but the means being given, and the purpose expressed, there is no doubt that they were to apply those means to that purpose (m)." But, if renewable leaseholds be articled to be settled on the husband for life, remainder to the wife for life, remainder to the children, the Court will, in executing the settlement, insert the proper directions for renewals. This, it seems, was directly determined in Graham v. Lord Londonderry (n); and the case of Lawrence v. Maggs, before Lord Northington, was cited in Pickering v. Vowles, before Lord Thurlow (o), as establishing the same doctrine; but, it appears by the report taken from Lord Northington's own MS. that the bar were mistaken in this (p). However, Lord Thurlow himself seems to have entertained that opinion, for, in Pickering v. Vowles, where the property was articled to be settled, but there were no directions for renewals, his Lordship said, "It was intended the lease should be fully estated, and that the husband and wife should have life estates, and that so fully estated it should go to the children." (m) 17 Ves. 488; and see S. C. 19 Ves. 638. (n) Cited Stone v. Theed, 2 B. C. C. 246. (0) 1 B. C. C. 197. The cause does not appear in R. L. (p) 1 Ed. 453. A direction for renewals is sometimes in the form of a discretionary power. The instrument may indeed be so specially worded, that the power should be perfectly arbitrary; but, if the proviso be simply that "it shall be lawful for the trustees to renew from time to time as occasion may require and as they may think proper," the clause will be construed, not as conferring an option upon the trustees of renewing or not, but as a safeguard against any unreasonable demands on the part of the lessor (q). II. In what manner the fines for renewals are to be levied by the trustees. Upon this subject we shall first advert to the cases where the settlor himself has specifically marked out the fund from which the fines are to be raised, and, secondly, we shall examine the rules adopted by the Court, where the settlor himself has omitted to declare any intention. 1. If there be an express trust to provide the fines for renewals out of the "rents, issues and profits," and the leaseholds are terms of years not determinable on lives so that the times of renewal can be certainly ascertained, it will be the duty of the trustees to lay by every year such a proportion of the annual income as against the period of renewal will constitute a fund sufficient for the purpose (r); and though the trust be to levy the fines for renewal out of the "rents, issues, and profits, or by mortgage," the annual rents only will in the first instance be applicable, for the authority to mortgage will be considered, not as making it optional with the trustees whether they shall or not affect the interests of the re (q) Milsington v. Mulgrave, 3 Mad. 491; and see Verney v. Verney, 1 Ves. 430. (r) Lord Montfort v. Lord Cadogan, 17 Ves. 485; S. C. 19 Ves. 635. mainderman by throwing the charge of the renewal upon the corpus of the property, but as given for the protection of the cestuis que trust in case the amount of the fine should not be otherwise forthcoming (s). Should the trustees in event be under the necessity of mortgaging, the Court would call back from the party in possession the amount of the incumbrance thus temporarily incurred (t). Where the leaseholds were annually renewable for twenty-one years, and the custom had been for the lessee annually to grant underleases for twenty years, the tenant for life, as bound to pay the fines to the lessor out of the annual rents and profits, was declared entitled to the fines paid annually by the under-lessees (u). If the trust be to raise the fines for renewal out of the "rents, issues and profits," and the leaseholds are either for lives or for years determinable on lives, it seems the expenses of renewal must still be cast upon the annual rents, though, from the uncertainty of the time, the trustees cannot be sure they shall have accumulated an adequate fund. Thus, in Stone v. Theed (x), where was a gift to trustees of freeholds and leaseholds and personal estate upon trust (subject to annuities) for a person for life, with remainders over, and the testator "directed that his trustees should from time to time renew the lease and add new lives, if they could obtain such lease, and empowered his said trustees to place out at interest the overplus of the rents of his real and leasehold estates in government (s) Milsintown v. Earl of Portmore, 5 Mad. 471; Milles v. Milles, 6 Ves. 761. (t) 5 Mad. 472, per Sir J. Leach. (u) Milles v. Milles, 6 Ves.761. (x) 2 B. C. C. 243. |