to compel him to reinstate the mill and premises, which would be extending his liability far beyond an obligation to repair. 66 Secondly. It is said that Mr. Coates is bound to pay the rent, though he has not the benefit of the occupation, for it is not shewn that he has been in possession since the fire. He is only to occupy so long as he shall think proper," and therefore he has the option of abandoning the occupation, and of repudiating the further benefit of the gift, whenever he "thinks proper.' No notice is necessary, for he is a mere tenant at will, besides which, being the sole trustee, it was impossible for him to give himself a notice to quit. [37] Thirdly. Assuming his liability, then, at law, the measure of damages recoverable is the value of the factory at the time it was burnt down, and not the amount necessary to rebuild it: Yates v. Dunster (Exch. 26 April 1855); in which case the Defendant became the lessee of premises, which at the time of taking them were old and in bad repair, under a demise containing a covenant to repair; the premises were destroyed by fire; the costs of reinstating them would amount to £1635, but when so reinstated they would be more valuable by £600 than they were at the time of the fire. It was held that the Defendant was liable to pay the sum of £1035 only, as damages for the non-repair, that being the amount of the Plaintiff's loss. Herc Mr. Coates has expended a sum of about £1400 on the premises, which was their full value at the time they were burnt down. Nothing more can be required of him. Fourthly. It is said Mr. Coates is liable to pay the whole rent of £100 a year until the premises are reinstated. There is nothing in the will to justify that demand The rent is not to be a fixed sum of £100 a year, but such sum, not exceeding that amount, as his trustees shall, in their discretion, think reasonable." It would be most unreasonable to exact £100 for premises which do not exist. 66 In re Skingley was not a case decided on strict rights, but on what was beneficial to be done in regard to the rights of a lunatic and his family. THE MASTER OF THE ROLLS [Sir John Romilly]. I entertain_no doubt with respect to the leading points; before I saw the case of Re Skingley, I had suggested the very same point on this will, namely, [38] whether a person taking the benefit of this bequest did not, thereby, take it upon condition to perform the duty imposed upon him, that is, whether a condition that he should keep it in good and tenantable repair and pay certain rent was not attached to the gift. I am of opinion that this must be treated as an implied contract, entered into by the person who accepts the estate. If a bequest were made to a person of a house for twenty-one years, upon condition that he kept it and delivered it up at the end of the term in good and tenantable repair, if he chose to accept the bequest, it would be on the faith that he would perform the condition which the testator had attached to it. It has been suggested that the non-performance of the condition does nothing more than put an end to the term, and that if he did not perform the condition he could not retain the estate. I think that is not so, and that the case is similar to this: A testator might leave an estate to a man for life, on condition that, at the end of his life, he should, by will or by bond, give a sum of £1000 to A. B. Could he keep the estate, and have the benefit of gift nearly all his life, and then give it up, and say he was not liable to pay the £1000? Obviously not. Again, it is suggested that this condition was merely operative while the debts were unpaid. That does not affect the question any more. Suppose he had said, I have a son abroad, it is doubtful when he will return, and I give my estate to you till my son returns, on condition that you pay a certain sum of money. If you accept the estate you must observe the condition, although, when the son comes from abroad, the estate will determine. So here, I am of opinion that there is [39] an expressed condition imposed upon this gentleman, that if he accept the benefit, he undertakes to perform the condition, and that he must perform it accordingly. It appears to me also that he has not determined the occupation. He says, he ceased to occupy in April 1854; in one sense he did, because he was burnt out and did not actually live in the place; but that does not determine an occupation; which does not determine until he thinks fit to determine it, by taking some active step for that purpose, and he has taken none. It is evident that the premises, when rebuilt, will be in a much better state than when he first had them, and it might be reasonable that the persons in remainder should contribute towards the expense in improving the property. I should think that would be a reasonable thing to do. That question, however, did not occur in Re Skingley, but I suggest it to the parties. I think there must be an inquiry, what is a reasonable abatement in respect of the state of the premises since the fire, because Mr. Coates could not himself settle what a reasonable rent ought to be. Mr. R. Palmer was heard, in reply, on the latter point, after which July 14. THE MASTER OF THE ROLLS [Sir John Romilly]. I must follow Re Skingley, I cannot distinguish it from the present case. The Defendant must reinstate the premises or pay a sufficient sum for that purpose, and he must also pay the rent since the mill was burnt down. [40] ROBINSON v. SYKES. July 5, 7, 29, 1856. [S. C. 26 L. J. Ch. 782; 2 Jur. (N. S.) 895. Followed, In re Orton's Trusts, 1866, L. R. 3 Eq. 380. Distinguished, Ralph v. Carrick, 1877, 5 Ch. D. 990. See In re Flower, 1890, 62 L. T. 220. Cf. Weldon v. Hoyland, 1862, 4 De G. F. & J. 564.] By a settlement, a trust fund was settled after the death of husband and wife upon the children equally who should survive them. But if any child should die in the life of the husband and wife, and leaving "issue" then living, his share should go equally between the issue of such child, when and at such time as the respective shares of such child would have become due and payable. Held, that the "issue" of "children" took per stirpes, and that the successive generations of "issue" took their respective shares by substitution, and not concurrently, so that grandchildren and great-grandchildren could not take together as a class. A testator had a power of appointment amongst his issue, which did not warrant an exclusive appointment. By will, after reciting that the trust fund had been invested in land, and reciting (erroneously) that he had advanced £300 towards the purchase, he made an exclusive appointment in favour of one of several objects of "£300 or such other sum as he was empowered to appoint." The Court, under the circumstances, held, that the intention was either to appoint the fund contributed (which was trifling, if any), or the whole trust fund, and that in the latter case the appointment was void. Two questions of construction arose in this case, one on the settlement made on the marriage of Charles Robinson in 1788, and the other on the codicil to his will executed in 1852. By the settlement, dated the 15th of September 1788, some stock and money were vested in Marrett, in trust for Mr. and Mrs. Robinson successively for life, and after the decease of the survivor, upon trust to transfer and pay the funds "unto and amongst such child or children of the body of Charles Robinson on the body of Mary his intended wife, begotten or to be begotten, or unto and amongst the issue of such child or children, in case such child or children should be then dead leaving issue, in such shares and proportions, and at such time or times, and on such conditions, and in such manner and form, as Charles Robinson should, in and by his last will and testament in writing," appoint; and for want of such appointment, "and as to so much and such part or parts of the said sums of £450 stock and £1150 stock, whereof no such" appointment should be made, then in trust that the trustee should apply and dispose of the same "unto and equally between all and every the child or children of the body of Charles Robinson on the [41] body of the said Mary Jonas who should be living at the time of the decease of the survivor of them the said Charles Robinson and Mary Jonas his intended wife, share and share alike." Provided that, "In case any such child or children should happen to die in the lifetime of either of them the said Charles Robinson and Mary Jonas, without leaving issue of his, her or their body or bodies, or there being such issue, and such issue should all die in the lifetime of either of them the said Charles Robinson and Mary Jonas, that then the share or part of such child or children so dying without issue, as aforesaid, should go and be paid to and equally between the survivor and survivors of such child or children, share and share alike, when and at such times as their respective shares or parts should become due and payable." Provided that, "If it should happen that any such child or children should die in the lifetime of the said Charles Robinson and Mary Jonas, leaving issue of his or her or their body or bodies then living, that the share or part of the said several sums of £450 stock and £1150 stock, which such child or children would, if living, be respectively entitled to, should go and be paid unto and equally between the issue of such child or children so dying as aforesaid, when and at such times as the respective parts or shares of such child or children would, if living, have become due and payable." "But in case there should be no such child or children of the body of the said Charles Robinson on the body of the said Mary Jonas begotten, or, there being such child or children, all of them should happen to die without issue, before any of their parts or portions should [42] become due and payable, or there being such issue, and all such issue should happen to die, before any of the parts or portions should become due and payable," then there was a limitation to the settlors. In 1789 Marrett, out of the trust funds, purchased a copyhold property called Vernon Hill. In 1808 Messrs. Sykes (who had been appointed trustees in the stead of Marrett), with the consent of Mr. and Mrs. Robinson, applied the remainder of the trust funds, together with an inconsiderable sum (if any) advanced by Mr. Robinson out of his own monies, in the purchase of a copyhold estate called "The Dundridge Farm," to be held on the trusts of the settlement. Mrs. Robinson died in 1816, her husband survived her, and he died in 1853. The state of the family will appear from the following diagram : There had been three children only of the marriage, one of whom, Matilda, died an infant, and without issue. The other two were sons, named Charles Cowling and Daniel, who both died in the lifetime of their father. [43] Charles Cowling Robinson, the eldest son of the settlor, died in 1851; he had three children, two of whom died without issue, in 1822 and 1847, respectively, and the third was the Plaintiff Charles Daniel Robinson, who had seven children, four of whom were born before the death of their grandfather (Charles Cowling), and three were born afterwards, but before the death of the settlor. Daniel, the second son of the settlor, died in 1849, leaving four children; three were Defendants to this suit, viz., Daniel George, John and Mrs. Agassiz, and the fourth, Charles, died in 1851 without issue. Daniel George had issue one child living, who was born after the death of his grandfather but in the lifetime of the settlor. John had no issue, and Mrs. Agassiz had two children born after the death of Daniel, their grandfather, but in the lifetime of the settlor. The settlor, Charles Robinson, by a codicil to his will, dated in 1852, after reciting that by his marriage settlement of 1788 certain funds were vested in a trustee upon certain trusts for the benefit of himself, his wife and their issue, and among other trusts, to sell and convert, and with the produce to purchase landed estate, expressed himself as follows:-" And whereas by an indenture, bearing date the 10th day of March 1796, and made between me and Mary my said wife of the first part, the said Hannah Marrett, as the widow and executrix of the said Charles Marrett [the original trustee] of the second part, and James Sykes and James Sykes the younger of the third part, all the trust property, or the then residue thereof comprised in my said marriage settlement, was assigned to and vested in the said James Sykes and James Sykes the younger, upon the trusts of the marriage settlement, and whereas [44] the trustees of my said marriage settlement, in pursuance of the trusts thereof, agreed to purchase a copyhold estate, known as Dundridge Farm, in the county of Southampton, but the amount of the trust funds then in their hands being insufficient to pay the whole of the purchase-money thereof, I contributed the sum of £300 or thereabouts, part thereof, and the purchase of the said copyhold estate was thereupon completed, and the same estate was surrendered or otherwise conveyed to the trustees of my said marriage settlement, upon the trusts thereof; and whereas, under and by virtue of my said marriage settlement, and the deed or deeds executed upon the purchase of the said copyhold estate, or of some or one of them, I am empowered by deed or deeds, or by my last will and testament, or any codicil thereto, to direct or appoint that the sum of £300, or thereabouts, should be raised by the trustees of my said marriage settlement, out of the said trust estate, and paid to such one or more of my issue by my said late wife Mary, as I should direct or appoint; and whereas no appointment of the said money, or of any part thereof, hath been yet made by me, but I am now desirous of making such appointment as hereinafter contained: Now, therefore, in order to effectuate my said desire, and pursuant to and by force and virtue and in exercise and execution of the power or authority to me given or reserved in and by my said marriage settlement, or other deed or deeds, and of every other power and authority whatsoever enabling me in this behalf, I do, by this codicil to my said last will and testament, duly executed and attested in the manner required by law, irrevocably direct and appoint that, immediately after my decease, the trustees or trustee for the time being of my said marriage settlement do and shall, out of the trust estate vested in them or him levy or raise the sum of £300, or such other sum as I am so empowered [45] to direct or appoint to be raised and paid as aforesaid, and do and shall pay the said sum of £300 or such other sum as aforesaid, when and as soon as the same shall have been raised, unto my godson the Rev. Charles Daniel Robinson" (the Plaintiff). The Vernon Hill property had been sold, in 1866, to the Defendant Mr. Helps, by the settlor and his sons and grandchildren, but the great-grandchildren and the trustee had not joined in the sale, and the property had not been surrendered. The great-grandchildren, therefore, insisted that they were not bound by this sale; while Mr. Helps contended, that the great-grandchildren took no interest under the settlement, and that he had a good title under the parties beneficially entitled to the Vernon Hill property. Mr. Roupell and Mr. Cole, for the Plaintiff. The grandchildren and great-grandchildren cannot take, under the gift to "issue," together and as one class. Secondly, the appointment by the will of " £300, or such other sum as the testator was empowered to direct or appoint to be raised," was an appointment of £300 out of the trust estate in the Plaintiff's favour. Mr. Lloyd and Mr. Giffard, for Mrs. Agassiz. The appointment operates on the fund, if any, which the husband supplied toward the purchase, and not on the settlement fund. Secondly. The great-grandchildren cannot take in competition with their parents, it is not a gift to a class generally, but a gift, by substitution, to the next succeeding generation of issue, when the prior one has failed. [46] They cited Ive v. King (16 Beav. 46); Shey v. Barness (3 Mer. 338); Evans v. Scott (1 H. of L. Cas. 43); Emperor v. Rolfe (1 Ves. sen. 209). Mr. W. R. Ellis, for the child of Daniel George, cited Watson v. Hayes (5 Myl. & Cr. 125); Leake v. Robinson (2 Mer. 363); Hampson v. Brandwood (1 Madd. 388); Butter v. Ommaney (4 Russ. 70; 2 Jarman on Wills (2d edit.), 489). Mr. Torriano, for the children of the Plaintiff, contended they each took oneeighth of a moiety under the word "issue," which comprised all issue living, and there was nothing to restrict it. Mr. Bagshawe, jun., for the representatives of the settlor. Mr. Bonham Carter, for the two children of Mrs. Agassiz and the child of Daniel George, cited Eyer v. Marsden (4 Myl. & Cr. 231). Mr. Taylor, for other parties. Mr. R. Palmer and Mr. C. C. Barber, for Mr. Helps, the purchaser of Vernon Hill. Admitting, for argument sake, that "issue" comprehends all generations of issue, still the question remains in what mode they are to take; if they take by representation, there is no difficulty, because each successive generation would come in only on the extinction of the preceding one; Ross v. Ross (20 Beav. 645). That is so in the case of the parent, and so long as the principle of representation exists, the same rule applies to all subsequent generations of issue. All the issue are admitted, but they cannot take concurrently, as children with grandchildren or remoter generations, but merely by representation, per stripes, when all the prior generation are extinct. [47] The word "issue," it is to be observed, is used in a settlement and not in a will, and must, to some extent, be restricted, for "issue" born after the death of the settlors must be excluded. The true construction is, to give the fund to a succession of classes, taken by representation. Next, only those children take who existed at the death of their parents. The power of appointment to the children or issue was destroyed by the conveyance by the settlor to Mr. Helps; West v. Berney (referred to in 1 Sugd. Pow. (6th edit.) 98), and Badham v. Mee (1 Myl. & K. 32). Mr. Martelli and Mr. Osborne, for trustees. Mr. Roupell, in reply. THE MASTER OF THE ROLLS. I will consider this case. July 29. THE MASTER OF THE ROLLS [Sir John Romilly]. The first question which arises in this case is, whether the codicil of 1852 operated as an execution of the power of appointment over the fund settled. The first thing to be regarded, in considering this codicil, is, what was the power of appointment intended to be exercised, and what were the funds appointed by that codicil. The part of it which is material for this purpose is this: After reciting the deed, the testator says, "And whereas by an indenture, bearing date on or about the 10th day of March 1796," &c. [His Honor read the passage, stated ante, p. 43.] [48] Now the contention on the part of the Plaintiff is, that this was intended to be an appointment of £300 out of the trust estate in his favour, but I am unable to come to that conclusion. It appears to me to be either an appointment of the amount he contributed towards the purchase of the Dundridge estate, or an appointment of the whole of the trust fund, over which he had any power of appointment under his marriage settlement. The first recital points to the contribution, and the second and third point to the subject of the appointment, being whatever trust fund he had power to appoint, and that the whole of the money which he had power to appoint had been contributed towards the sale of the Dundridge estate, and the operative part appoints the whole of this trust fund over which he had any power of disposition whatever. I think that the proper construction of this codicil excludes the construction argued for by the Plaintiff, but that it is to be treated either as a disposition only of so much money as he had actually contributed, or of the whole fund settled by the deed of 1788. If it is to be treated as a disposition only of so much money as he had contributed towards the purchase of the Dundridge estate out of his own moneys, I am told that it is so small in amount, as not to be a matter worth contending for, and that the recital that the £300 was so advanced is wholly erroneous. But if the codicil be treated as an appointment of the whole of the fund settled by the deed of 1788, the remaining question is, whether it was intended to operate over the whole of it, or only over £300, part of that sum which he had a power to appoint. In my opinion, the true construction of the codicil is, that it was intended by the testator to operate over the whole amount that he had a power |