OF

DON!INICA

Civil Appeal No. 3 of 1970

Before: The The The

F.E. Degazon for

HAKIH E. Fa GORDON

CHRI STI.AJUE

Mr. Mr.

K.H.C. Alleyne C., with B.

1970, October 20,

•

At the hearing an ion summons

by the plaintiff/appellant for ion t the reversionary ovmers of the s olute lands included in an Indenture of Trust, it was parties that the issue be confined to stion the respondent had a l"ight to convey as benefic i

a trust.

r

one

:property y;hich was the subject-matter

trial judge having decided that the re was i to

do soJI the llant now

The notice of appeal vras s two othe:r• :persons, naJnely- (i) C

and (ii) Castaways Hotel Limited, that the only real respondent to

Burke'• The facts revealed by the

matter are as follorrs:-

cis ion.

Deve

counsel

solic

is Chri i

t evidence in

By ru1. Indenture of Trust (hereinafter

"the trust instrwnent") executed on.the 18th March, 1913,

George James Cr.tristian, a Barrister-at-Law~ which he named the following :persons as 1

a trust

beneficiaries:

/Francis Thomas

-2-

Franc Thomas Burke, his tvw

Burke and their 1 children,

Clara Christian, 1\'Im .. ld Chri

Under the trust instrume:1t

Estate the Cass Estate was c

:•en :Margery

Peter

Chri

Shillingf'or'd s trustee, his

following:-

uses

"1. The Trus e, his in pocsession

2.

premises Burke, or unt t i ani e Bur l<::e or v1hichever event, the Thomas Burke 9 or the said Margery Burke

later.

The said Trustee nana nt, or whichever he may deem expedient be liable for im:peachment for

3. From the rent ments, the said Trus amount v'rhich by Bond Christian the to to the s any balance whj_ch tion :pay the whole or thereof maintenance and :personal support or benefit of Margery Burke w"'ld Christianie Burke unt shall attain the 21 ars ( tvrenty-one) Ol' mari·y.

Should either the said Burke die under the having marr'ied and le of the lands, heredit held trust for the

5. Should the said Marge Burke die thout ( t·wenty-one) or 'JVlthout b

or Christi

having left lmvfl.ll issue, e shall hold the said lands, , :premises in trust for Pe s Christian, Clara Christian, and Maucl Christian until they shall attain the of 21 (twenty-one) years or, being girls, attain that or marry, at his discretion to aTJ.Y p of the rents and :profits of the said hereditaments and for the maintenance personal support fit of the said Peter Charles Christlan, Christian, and Maud Christian.

/6.. Should ei

)

e

ro

6. Should either· Clara Christi att the marr;sring \7hole of'

7. Should the s Christian, attaining the warrying v:rhole of

be: executors Christian or as

The foll

:L.n.s tru...rnent -.;,-ere ace

1919 without 1 issue.

Peter Charles Christian

(

, •

Christianie Burke the I'es s case - was

born on the

beeJ.'l in

21 years.,

th Janur~ry 1906. She i

session of the t s

Thomas Hovmrd Shillingford 1917 ( ac

statement by counsel) thout

successor to inis ter trust. rec

disclose who executors r.'ere ..

Maud Christian Peter ChristiDn

issue.

! Clara Gordon, nee Christi d ie6. in 1964

issue of' •rrhom the apiJello.nt one.

By a conveya.n.ce

dent as ·benef'ic 1 O'.mer in

acres of the Mero Estate to 1

In the course of

tion the learned trial judge

d

"In my view, the ons set out in C of the trust deed of' taining majority of

as

s

aoc1 leaving lawful issue, are in the ternative; Margery Burke 11 having died without having majority, Wl.married tl1out sue, t r

•

:possession of' the Trustee lapsed '.7hen the survivor, Christia.n.ie Burke, attained her majority 1927.

/I am further

a·-

-4-

I am f.Ul"'ther of the view 'that Christianie Burke then became the sole cestui-oue trt1st with full beneficial interest and VIaS entitled tO have the here<li taments conveyed to her and, in turn, enti t1 to dispose of the same."

By leave of the Court ~he grounds of appeal filed

the appellant were amended and the appe

following grounds:

VIaS on

11 (a) the decision of the learned trial judge set as

and that it be declared that:·-

(b) the learned trial judge erred and vras in

holding that merely by the attainuent her

in 1927 ••••••• 'Christianie Burke then

cestui-que-trust with full ci jnter~st

was entitled to have the hereditaments conveyed to

her and, in turn, entitled to di ose the same' 1

. '

notwithstanding the conditions as to marriage and

issue in paragraphs 4, 5, 6 and 7 of the said Trusts .. 0

It 'lias conceded by counsel for the respondent for purposes

this appeal only that the appellant a right to move

Court.

Counsel for the appellant urged on this Court,

that the absence of technic vrords of limitation the

trust instrument precluded the respondent from t the e

simple in the trust property on her having attained the a

21 years, as was contended by her n she purported as

ficial ovvner to sell the Mero estate to Edwin Lionel Pinard for

£1,200 (see conveyance by Christiania Burke to Edwin L

Pinard of 29th May 1952); sec.2~~~~' that on a proper tation of paragraph 4 as modified by paragraph 5 and sub

paragraphs of the trust instrument,. the respondent on attaining

her 21st birthday v1ithout marrying axrl having la·wful

either an estate in tail or a life interest; thirg~,

virtue of the conveyance the respond_ent was estopped from

denying that she sold as beneficial owner and consequently

could not at this stage avail herself of the terms of the

Settled Estates Ordinance,(Cap. 221) Laws of Dominica.

Counsel for the respoment urged that because -

(a) the attitude of the courts was to prestlTile in favour

o~ divesting, particularly in a case such as this where

the clear intention of the settlor was to convey the

legal estate to the respondent on her attaining the age of 21 years; and

/(b) the provision

-5-

(b) the provision whereby the respondent was entitl on attaini~~ her majority to call upon the trustee to

convey the legal estate to her, rendered the

an executory one and such as to thin the

category of cases to wnich the courts were inc to lend a liberal interpretation :r' to

effect to the intention of settlor~

case, The peculiar circumstances of submitted, rendered it a fitting one for Court r e

"and" for the word tf or" ±n };lll'agm:t;h 4 t

In inviting the Court to adopt a course 1 couns further urged that by doing so absUl'dities trust

strument (e.g. no legal estate in the trust :prvperty could ve t

in anyone,) would be avoided, and the trust brought to a

satisfactory end.

Because of the Real Property ( • )

of Dominica which came into force in 1873 the

Dominica Legislature never adopted the Conveyancing Act (U. ) 1881, the o:gerative law in relation to conveyances by

Dominica is to be found in (a) the Real Property Ordinance

(Cap. 219) J.Jaws of Dominica, a.nd (b) in the Common England as it was :grior to 1881 when the Conveyanc

1881 came into force there. Act (U., )

The requirements for creat certain

indicated by section 16 of the Real Property Act (C

of Dominica which reads as follows:

"No estate of fee tail shall created, the passing of this Ordinance, by any deed, any will or other instrument, othe se than by an express limitation to a person and the of his body, or the heir's fl male or , of his body, as the case may be. 1

as also by the following excerpt from ;-~~~~.~-.~~-~~~~7 Edition, p. 51 -

11The rule at common law vms that a freehold estate of inheritance could be created in a con­veyance inty_r vivos (ioe. a transfer of 1 between living :gersons) only by a phrase which included the word 11heirs". In no other way could a fee simple or fee tail be created."

s are

It is also noteworthy that by section 29 of the Wills

Ordinance (Cap. 215) Laws of Dominica (in force since 1872) which reads ~

/'Where any real

-6-

~ere any real estate shall be devised to any ~erson without any words of limitation, such devise shall be construed to s the sim~le, or other the whole estate or interest which the testator had power to dispose o~ by will real estate, unless a contrary intention appear by the will~"

adequate provision is there made whereby a devise a

sim:ple estate may pass such an estate without the use of

words of limitation.

From the fact that this provision been s ci

created in respect of wills only, it in order to effectively pass the e

by a deed, technical words of limitation must necess

used ..

It is settled law that the fundament rule er-pretation of deeds as instruments is that:- to interpret a

deed the expressed intentions of s must be

and in support of this contention -following r

excerpts are cited in Borton on_De~£~, 2nd Edition p.

"I adopt the observation of Alexander C.B. in Q2Jmore v. T~~daJl 1828 Younge & J 605 at p. 622 that this Court deals with a deed according to the clear intention of the parties appear in the four corners of the deed itself. If sees an intention clearly and distinctly establ by it, it has no difficulty in carrying that into effect; subject of course to any rules of may be applicable to it, but only qualified to extent."

- Sir J. Romilly M.R. in

(1854) Beav. 196 at p. 206 - and " •••••••• in construjng instructions you must regard, not for the presumed intention the parties, but for the meaning of e ·words which they have used."

per Brett L .. J. Ex p. (1879) " D. 731 p.,

The effect of' the above dicta as I see it, that while the Courts wherever possible will give full effect to the intention of a donor or settlor as indicated in the that intention must be qualified by the l effect meaning of the words actually used in t document •

.A.dverting to the trust instrt.unent it is

indicated that in consideration of the love and cle

ction which George James Christian had for Margery Burke, Chris­

tiania Burke, Peter Charles Christian, Clara Christ Christian he settled the hereditaments on them in turn on

/conditions

-7-

conditions set out in

(supra). 1 - 7 of the trust

Paragraph 4 provides that in the event of

other of the two sisters not attaining the of 21 or no~

marrying and having lawful issue, tl1e whole of the ments and premises shall held in trust t survivor ..

Margery Burke having died under the age of 21 ars unmarried, it followed that the property continued in trust for the survivor Christianie, by of para-

graph 1 the trustee was to remain in possession wJ.til s-tianie attained the of 21 years.

The question then arises as to what rest Christiania Burke acquire on her becoming 21 ars. Couns for the respondent contends that she acquired the s

or

and was entitled to have it conveyed to her, ile c~lllscl r

the appellant contends that she could only acquire an tail or a life interest.

An examination of ti1c instrument reveals paragraph 4 provides what should happen in the

Margery or Christiania dying

lawful issue, paragraph 5 in the event of both Margery

21, unmarried

to ov

Christianie

years or v,ri thout having mar•ricd and vlithout having issue, in which case the trust propert;;,r is to for Peter, Clara tLDd Maud Christian until they in

the age of 21 years or marry"

thout

1

t

5, Having regard tot he provisions of pa would appear that the intention behind paragraph 4 the event of one of the tv!O BlU'kes dy _ng, as then the hereditaments would be held by the trus

occurred, trust

for the survivor of the two sisters, in this case Christianie~ It follows on this that the most that Christiania cou~d have had on her attaining the age of 21 years was a rest, and the fact that she entered into possession of the trust

:Qroperty ever since she was 21 years and that the trustee whom the legal estate was vested had died without having c~l-veyed the legal estate to any other person as trus , no

difference to the interest which the resDondent held. On her

death~ should she not have married and had lawful sue, in accordance with paragraph 5, the hereditaments which com­Drise the trust must remain in trust for Peter Charles Christ

Clara Christian and Maud Chl'istian until they attain the

/of 21 years

-8-

of 21 years; or until the girls marry have 1 sue.

Par•agra:ph 6, like

should happen in the event of tho

beneficiaries there named, and

if all should dieo

Lj.'

It to be observed that in

r

7 what should

4 ever the ·word 11 survivorn appears it is not followed by

technical words of limitation, and that in 7 provides for the final reversion of

t

6

property to the settlor, while there is a s

words of limitation, provision is thoro made further appoint by deed or will.,

enco

se

lP lie_ J:lQ.U9_g]\:_:_f?_J~i3JJJ.£me:g:t. (1921) 2 Ch. D. 469, an

indenture dated 1886, W. Bostock conveyed the st freehold lands to trustees "in trust for child or of the said W. Bostock now born or horoa~ter to be born shall attain the age of 21 yoars •••••••••• and if there no such child then in trust to the right heirs t s took. 11 Tho Court of Appeal held that though the c showed a clc;ar intention to give the chil

words of limitation wore as neces equitable estate as they were in a

absolute

estate, and tho children only took li:c interostse

Counsel for the respondent sought to dis

ratio dici_Ci911Q.i in this case, which L11. effect was - that strict legal conveyancing language had been used, in a

creating a trust those words must be their 1

from the principle which h0 urged that in executory trusts

where no vrords of limitation were used, provided the

of the donor was clear, the Courts paid greater re intention than to the technical words used :in tho

In !jal sbury' s~~-]kij.~, Vol,. 38, pp. 822, and executory trusts arc classified thus -

"A trust is executed in the teclli"1.ical sense where tho terms of the trust are desig-nated by the instrument or declaration creating it, even though the creator directs a settlement to be executed embodying the designated provisions~ A trust is executory in the technical sense where the instrument or declaration by which it is created directs the subsequent execution of an instrument defining the trust and docs not itself define with absolute ~recision the terms of that instrument f:"

jrhe effect of'

res

-9-

The effect of the latter trust is, as Lord C

in f?_ac};_vl_~~§.t v,_ Vis.~I..Q.+JP.e:?,g_al~ (1870) L.R. 4 H.L.

at 571: tt one which is to be executed by the :preparation of a complete and formal settlement, carrying , through the operation of an apt and detailed phraseology, the general intention indicated testatrix"~

In tho instant case the fact that tho terms of the trust been finalJ.y declared by the settlor in such a

that no instrument is required to define tho

manner

he intends to s tbject his property, ment an executed trust and therefore not subject to t

ments urged by counsel for tho ro s:pondent as being executory t~sts. In this connection support for this to be found in the follovving statement of Sargant J ..

M_qg£kt~~s Se~~ (1913) 2 Ch. D. at p. , c

p. 135: "In the case of an executed document as

from an executory document the rule is settled that the same words of limitation are necess to convey an equitable estate fee s have been necessary if the conveyance legal estate in fee simple. Equity follows that respect. 11

Paragraph 5 of the trust instrument o that it was not the intention of the settlor should take a fee simple if she did not marry and

issue. The dictum of Jessel M.R. in ~~~~~~-­Ch. D. 531 at p. 542 - "One must consider the words used, not what one may guess to be the intention of parties:" is in point, and in my vievJ' de ats the of counsel for the appellant in relation to the i...Yltention of t settlor in the instant case.

)

The argument of counsel f'or the llant that res-pondent would be entitled to a c 1 also

absence of any words of limitation as ealled for by section 16

of the Real Property Ordinance (Cap. 219) Laws of Dominica, following on the word 'survivor' in paragraph 4 of the trust instrument,.

The fact that the amending effect of the Conveyancing Act (U.K.) 1881 and the Real Property Act (U.K,)l925 onthe re property law in the United Kingdom, does net apply Dominica, coupled with the provisions of the Real Property Ordinance

§IICJ (Cap. ~) of the Laws of Dominica, lead me to the conclusion

/that in

-10-

that in the instant case the effect of the absence of of limitation -vvhich included the word "heirs", after word ttsurvivor" in :paragraph 4 of the trust instrument, that only

a life interest :passed to the respondent on her attaining age of 21 years.

In the light of the above I am of the view that the appellant never had a beneficial interest amounti to a

simple estate, to sell; as she purported to do. It is however to be noted that in the Settled s

Ordinance (Ca:p. 221), Laws of Dominica, :provision for tho holder of a life interest to sell tho settled land the conditions under which such a sale c an properly As the relief sought in the amended of s not involve this question, and as all p s who ought to

for tho determination of tho question of the disputed

including tho purchaser therein, are not before the Court, I

would not give any opinion on this question.

I would therefore declare -(1) that Christiania Burke was entitled under the

of 18th March, 1913, to an estate for li only in hereditaments therein settled, and

(2) that the said Christiania Burke at the of the s Indenture of Conveyance by herself to Edwin Lionel Pinard was seized as costui-c:'.ue-trust of an es lifo in the said hereditaments not of an foe simple and was accordingly not onti tl to said hereditaments as absolute ovr.nor thereof in fee simple.

For the above reasons I would allmv costs here and in the court below.

I agree.

with

in

--~--{A-llen LewTs.J Chief Justice

-11-

An i..n.denture made the

Fra."'lcis Burke of

of the second part Thomas

part had a two-fold purpose.

betw·ee:n is

barrister-at-law, for the

hereditaments George trusts (to 1)e

ford as trustee

The hereditaments

the Cassada Garden Est

as 11 the hereditaments".)

The indenture

in

the love and affection Yvhich

l ..J..

lt

bears for Margery Burke and Chr•isti

Christian, Clara Christ

James Christian is sirous of set

manner hereinafter expressed,

Shillingford (here I' C the

agreed to accept conveyD.nces heredi tt:t..ments and to be the Trustee ment" on to record that in

between FrruJ.cis Thomas Burke Geor

an i

to ChristLm

•

the cons on there mentioned, 11 the s

,

Burke at the request of tl1e said s Christian hereby to the said Thomas s

executors all that estate or plantation

• • • • • • • • • • • • so all that e t

s

s re

Estate •••••••••••• "to hold the me nd heredit and all other premises hereby

heirs or executors to the uses fol

1. The Trustee, his heirs, or possession of the said premises during the lifet or IDJ.til the said shall attain their maj event, the death of tr...e s

:-

the majority or marri of the said and Christianie Burke shall happen later.,

2. The said T~~stee shall , superintend

s

or

ment, or lease the said Estates or Plantation, which­ever he may deem expedient and shall in no case liable :for impeachment :for waste.

/3.. From the

or e

39 From the rent or the said Trustee by Bond he the

-12-

Trustee have bound themselves Thomas Burke; and from shall his discretion pay thereof for maintenance l1enefi t of Margery Burke

marry.

4. Should either the Burke die under the

5. Should the said die without or vrithout lmv:ful issue,

, heredit Chai'les Christian, 1L.'1.t il they t years o:r·, girls, power at his discretion and ts the said the maintenance and personal the said Peter Charles Chr Maud Christian.

6. Should e the said Pe Christian, or Chri age of 21 ( tvrenty·-one) years lawf'ul issue then whole ditaments, premises 1 survivor or survivors

7o Should the said Peter Charles Chris tian, Maud Christian all thout age of 21 ( tv1enty-one) years lawful sue, then the whole ments~ premises 11 be heirs, or executors in trust Christian or as he shall,

In Me garry & Wade t s

Edition, the .following statement

of the common t!:le use

to create a fee simple occurs

"The rule at common law was inheritance could be created

limit

s

on

vivos (i.e. a transfer of ons) oniy~by a phrase which inc no other way could a fee sim:rle e tail Any attempted gr~"lt of a freehold e in terms (as "to A" or "to A in fee simple 11 )

a life estateo••~••••••••It is imnortant to no othel' vvord would do in I;lace of' 11heirs": "issue"~ "descendants", "assigns", 11 for ever", " simple", "in tail" and so on ·were all ineffective. "Heirs11 vras the sacred word of limi tationll and a magic which no other word possessed".,

/In th.1s c as e

-13-

In this case it will ob the settlor us

appropriate V!Ord necessary for crea

simple est e which estate vvas ves the

trusts hereinbe mentionecl. S'

with a definite 1 me

it I:tmst be assumed

indenture v;as intended to bear

In regard to the f'irst s

f'ollowing f'acts are agreed:

(a) Franc 17,

(b) Margery Burke \VhO VIaS born on

1919. She thus did not att majority. She v1as

at her death and left no lawful issue; (c) Christ

was born on January 19, 1906, is still is

anc1 without lav;f'ul issue. It so common

Christ Burke her

the terms of' this paragra~h, itled to

the hereditaments as tee.

By paragraph 4 of' the s it

"either the said Margery Burke or Christi

the age of' 21 years or without

issue, t

be held

v1hole of' lands, he

trust for- the sur vi VOl"'." In the s

a

. '

happened, Christi Burke, re rein, was

survivor and the heredi

f'or her. The important

what estate did the res

'.-ere ccordingly

ch ses

t ?

The respondent by an indenture

purported as benef'icial own0;r to sell the e s

Estate to Edwin Lionel Pinard ,200.,

29,

The appellant issued a smllinons dated April 10,

·which he asked f'or certain relief' including,

declaration that he is one of the

simple absolute of' the hereditaments, thereby indirectly

a

the

questioning the respondent's right to sell the fee s in Mero Estate as she purported to do

of' the summons the sole issue on

desired was agreed between the

recorded this agreement in his

as

:Lch

ies

af'ores • At

the Court's rul

the tri

as f'ollows:

"it v1as accepted that the e2:1t suo revolved aromld the question as to ther the" respondent "had the right to convey the larld in question on

nas

,

29th May, 1952, by conveyance recorded in Book of' Deeds V, No. 7, Folios 154-156 to Edwin Lionel Pinard. 11

/It is not

It is not dis:1)E

of Clara GoPdon (noe

in paragraphs 5-7 lawful issue, but as her

-14-

is

:::. tj_an) ~ one of the

sett .. She

ath took ace

a vested interest in the heredit s there vras pass to her heirs -by of succession.

appellant could have no claim to the he

her heirs. In the circumstances, the Court

in this r. dent conceded

llant had the Picht tc move the Court

of the question whether or not res convey the fee s

The tri dent r s favour.

judge

He . .

Mero

cided this

ate as

"In my view, the t-oo conditions s of the trust of maj and leaving 1 t Margery Burke, having died wj_thout majority uD ... \11arried and without

ssession of the trustee 1 Christianie

I am further then became ficial interest ments conveyed t pose of the s ::ui:e • 11

Counsel for t

that the fee simple not

lla:nt before this Court

s to re

l son

t

one

an

e

on

to

graph 4 of the settlement

estate tail passed to her.

that onl:;r a 1 t, or an

He said

that an estate tail passed because it is a gre

a life estate and if she had had children

could have succeeded thc:c~tJto. rrhe

an estate tail passed to the respo11dent is

of the provisions of section 16 of the Re

Cap. 219 (Dominica) vThiah Ordinance came

1873.. This section reads as follows:

untenable by reason

Property

o force on t

"No estate of fee tail shall ere , the passing of this Ordinance 1 by any de , or any will or other i:nstrument 1 otherw·ise thru.~ by an express limitation to a person and the heirs of his body~ or the heirs, male or female, his body, as the case may be. 11

It will be seen t:b..at there is no express limitation tot

heirs of the body of the survivor under paragraph 4 of the

trust instrument and accordingly an estate of fee tail was

/created under

-15-

the

therefore have to rely on his t

interest only to the res

so cause of the ence limit heirs 11 after -vmrd 11 survi vorl! the

grs_.ph of the settlement '!/Ol'dG rc

lar: to create a fee simple est s cor;mmn is still in effect in Dominica.

A statement of WarrirJ.gton L.J. in

§~t..llH!ie_:q._i (1921) 2 Ch. 469 is c

at p. 484 (ibid): "According to technical rules a

and his heirs to the use of or in on B a legal estate 1 only. 11

This is exactly the s

limitation to the trustee a11.d have happened) to the use of or under paragraph 4 of the settl • would for life only.

Counsel for the re

elusion on the grot1.nd that the trusts

and therefore, he s , the

settlement r to ascert the

(

Thus,

in which case the sence of of limi He submitted that the trust under because on the asswuption that re

case

:L ~3

on

4 was VIaS

on B

s

are exe cons

exe

s

attaining her majority to call upon t trus e convey

legal fee simple to her, th meant that left to be done by the trustee to ct trust. the respondent were entitled to a convc~rance of the on attaining her necessity for

or'i ty (which in my

a c onve::rance the self be a suf'fj.c ient ground f'or The reason v;hy this is so is fully

Lord St. Leonard's judgment in Egeyto12.~~.;:.4 •

(1843-1860) All E.R. Reprint 970. In thic judge in differentiating between executed

said at • 1000 end 1001 (ibid):

so) would not

as exe

ss

executory

" .......... all trusts are in a sense executory, because a trust cannot be executed except by conveyance, and therefoi'e there is something always to be done. But that 1:.ne sense which a court of equity :puts u:pon the term "executory tr·ust". A court of eouity considers an executory trust, as distinguished from a

t

1

was

s

con-

,

. '

•

on

it-

ts

/trust execut

-16-

trust executing itself, tr!o in this mc:mner: what is called, very mvn conveyancer? Has he to make out from general intention is, or has he so

stinguishes Uw testator been 1;roperly c led, left it the

tion, that you have nothing to do that v1hich he has you, them into legal estates. 11

If one applies this test to the cil"'Ctunstances

will readily be seen t the trust uncler

t..'"lis case,

4 t

settl is an executed one • The

that the respondent becomes entitled to

hereditaments merely by fulfil conditions

Her entitlement s by

an automatic 1;rocess requiring no ~'.c ion

effective. Neither the assista:ne t

trustee necess to compl

ent in t s c::we the

in themselves final, in c

Court can do is to construe it aec

words used. I therefore reject

under 4 is ory

lalJ.guage of Lord St. Leonax•d' s, 11 a

l

For the reasons ~ I am of the appellant's contention

interest only is correct. She fee simple tte Moro Est as

deed of indenture May 29, ) -~

The respondent was however tenant

settlement ttnder the Settled Est

(Dominic a) and in this she c ou.ld

di taments pursuant to tl1.0 r ,. I' c

s

so to

• t

1

for life by this Ordinance, but did not purport to sell in

this c ity. The question of the ity

respondent does not arise in this arpeal express no opinion thereonq

I agree with the order pro:pc3ed by •

and would accordingly allow the appe~l with costs

the court below.

s by

fore I

e Gordon

and

of Appeal