of his interest at that time in the estates purchased in fraud of the agreement. To an equal part of this amount Sarah Wienholt appears to me to be entitled. That amount, therefore, must be divided into equal parts, and each of them takes one moiety; that is, if the whole of Daniel Birkett the younger's interest in the land and the monies at the time of Daniel Birkett the elder's death, together with the pecuniary residue, or residuary property calculated at 10,500l., or whatever it may be, were divided into two equal parts, we give each of the two parties, Daniel Birkett the younger and Sarah Wienholt, one of those parts. By Daniel Birkett the younger and Sarah Wienholt, I mean the parties claiming in the right of Daniel Birkett the younger and Sarah Wienholt; and this appears to me to be the only conceivable and consistent way of effecting the purpose of the agreement and the intention of the will, so far as the will is consistent with the obligation which the agreement meant to effect.

I take it, therefore, that it will be incumbent on your Lordships to make the alterations which I have suggested in the declaratory parts of the !decrees of 1825 and 1829, by the Lord Chancellor and Vice-Chancellor. In the decree of 1825, only the word "residuary" ought to be struck out of the declaratory part of the decree, which word throws a doubt upon it, and possibly may have misled his Honour the Vice-Chancellor. It will also be necessary to make the alterations in that part of the decree in which the mortgage debt and bond and stock are mentioned, and those other alterations, which I have last adverted to; and the result of the whole will be, that first the

1

debts must be deducted out of the personal estate; that all the legacies must be deducted other than the 6000, which Sarah Wienholt, or those who represent her, elect not to take, having elected to proceed, as more beneficial to them, under the agreement; that in the calculation there ought to be deducted 2500l. legacy to Daniel Birkett the younger; that the estimate should be made (and directions given for that purpose, and declarations made to that effect) of the value of the interest in the stock and in the bond of Daniel Birkett the younger, at the death of his uncle; that such value, together with his interest in the estate of Daniel Birkett the elder conveyed to him Daniel Birkett the younger during his life, should be declared as testamentary, for the purpose of this agreement; that such interests and value should be added together, and that the whole sum should be divided into two, and one moiety given to those who claim under Daniel Birkett the younger, and the other moiety given to those who represent the interest of Sarah Wienholt.

It would be a great satisfaction to me, if, in looking further into the different parts of the Master's report, I should be able to discover (and I think I shall) that the Master has sufficiently reported to enable us to state finally in the order, without further enquiry, the parcels and the kinds of property which passed to each individual, and in what proportion ; but it is very possible it may be necessary to send it back for further enquiries with respect to some of these matters. I hope, however, no doubt whatever will remain upon that which appears, according to his Honour's decree, to be past a doubt, that Daniel Birkett the younger is the largest

1833.

LOGAN

WIENHOLA,

1833.

LOGAN

ย.

WIENHOLT.

legatee; and although his share will be diminished by the variations proposed in the decree, yet still there is sufficient, I apprehend, to bear out the finding, that Daniel Birkett the younger is the largest legatee, so as to avoid further inquiry.

Lord Plunkett. In the decree proposed to be made by the noble Lord on the woolsack, he assumes that the half of the share which Daniel Birkett the younger will be entitled to will be equal to the greatest legacy, or not fall short of the greatest legacy or benefit given to any other person. If any doubt remains upon that part of the case, it may be necessary to have an inquiry directed for the purpose of ascertaining the fact; but as well as I recollect the course of the argument at the bar, the fact was not controverted. Therefore, in any thing which I say on the subject, I shall proceed on the assumption that the fact is admitted; and it appears to me that it would be proper to have a recital in the decree of that fact being so. If that should be drawn into controversy, it may be necessary to have inquiries about it; and in the result of those inquiries, if it appeared that any other person came into the situation of the greatest legatee, or if it appeared that any other person was in the situation of an equal legatee, it might lead to a different result as to the mode in which the funds were to be furnished for satisfying to the representatives of Sarah Wienholt that sum to which she is entitled.

The first question which presents itself to your consideration is, What is the agreement that was entered into upon the marriage of Sarah Jopson

with John Wienholt? Upon that question I have nothing further to say, than that I entirely concur in the view that has been taken in both the decrees which have been pronounced the decree of Lord Eldon, and the decree of the Vice-Chancellor; and in the opinion expressed by the noble Lord on the woolsack. It is not to be measured merely as a transaction governed and limited by the penalty of the bond, but it is to be taken as a marriage contract; and the agreement, which is recited in that bond as a marriage contract, is to be carried into execution by this Court... Your Lordships will observe, that it is not immaterial to the argument that this bill is filed, not upon any admitted legal right on which a party could proceed in a court of law; but it is founded on what is undoubtedly an equitable right to have a specific execution of the agreement implied in the bond, according to the true and just and reasonable construction of that agreement.

The next question is, Whether this being taken to be a marriage contract is applicable to personal estate only, or both to personal and real estates ? If it were necessary to decide that question (I think in the result it does not become necessary), I should have no hesitation in saying, that it must be taken as an agreement applicable to personal estate only.

Then the next question will be, Whether it being an agreement only relating to personal estate, the real estate is or not a security for the performance of that agreement? If it were necessary to decide that point, I should have no dif'ficulty in saying also, (and so I take the decree of Lord Eldon to have gone the length of deciding as to that point,) that the real estate is to be con

1833.

LOGAN

v.

WIENHOLT.

sidered as much a security for the performance of the agreement as the personal estate.

The next question is, What is the extent of the agreement, and what is to be the measure of the sum to be paid to the trustees for the use of Sarah Wienholt and her issue? In other words, What is the construction that this Court is bound to put upon the words which have been used in that part of the bond which contains the marriage contract P The terms are, that the uncle of Sarah Wienholt, Daniel Birkett the elder, binds himself to give so much as the said Daniel Birkett by his will shall give or bequeath to any person. Is the meaning of this, that he binds himself to give so much as by the words of his will, by the formal words of his will, supposing it had taken entire effect, any person would be entitled to ? or is it so much as would be effectually given and substantially taken by such person? It is quite essential that you should decide, in the first instance, what is the meaning of this? Supposing Daniel Birkett the elder had by his will given to Daniel Birkett the younger an estate of the value of 10,000%. a-year, and the gift of the estate could be considered in the construction put upon it as coming within the terms of the contract, and supposing his will did not effectually dispose of it, and it did not pass by his will, would the measure of bounty to Sarah Wienholt be that which he intended, or proposed to give, or would it be that which he substantially or actually gave? I conceive it must be the latter: to put any other construction upon the contract would, for the reasons which have been stated by the noble Lord on the woolsack, seem to be quite extravagant. No person in his senses could have intended to enter did