(u) See stat. .53 & 54 Vict. c. 39, 20 -22; Darby v. Darby, 3 Drew. 495; Waterer v. Waterer L. B. 15 Eq 402; A. -G. v. Hub-buck, 13 Q. B. D. 275;Re Bourne, 190(i, 2 Ch. 427. 429, 432, 433.

(x) Land, which is partnership property, is in effect held upon trust for sale and conversion into money and application of the proceeds of the sale, first, in discharging the partnership liabilities and subject thereto in dividing the same between the partners in proportion to their interests: Darby v. Darby, 3

Drew. 495; A.-G. v. Hubbuck, 10 Q. B. D. 488, 13 Q. B. D. 275, 289; stat. 53 & 54 Vict, c. 39, ss. 20 (2), 22, 44; Re Bourne, 1906, 2 Ch. 427, 432, 433.

(y) Broom v. Broom, 3 My. & K. 443; West of England, etc. Bank v. Murch, 23 Ch. D. 138; above, p. 219.

(z) Stat. 44 & 45 Vict. c. 41, s. 30; above, p. 221. It is submitted that the cases cited in the two preceding notes establish that the estate, even when vested in a partner or in all the partners, is held upon a trust within the meaning of this enactment. Where land has been vested in partners as joint tenants in fee, but as part of their partnership estate (see 1 Key & Elph. Prec. Conv. 438, 4th ed.; 436, 8th ed.), or as tenants in common in equal shares, the case of Re. Selons 1901, 1 Ch. 921, may perhaps be thought to raise a doubt whether the partners can have different interests in the land in equity from what they have at law. In that case, one who was a trustee of leaseholds for two ladies in equal shares, by deed reciting that they had requested him to execute to them such assignment thereof as was thereinafter expressed, assigned the same to them as joint tenants, and they jointly covenanted to indemnify him against the rent and lessee's covenants. On the death of one of the ladies her executors claimed her share on the ground that in equity the ladies had remained tenants in common. Farwell, J., decided against this claim, holding that the case came within the rule in Selby v. Alston, 3 Ves. 339, that where equitable and legal estates, equal and co-extensive, unite in the same person, the former merges, or in other words, that a person cannot be a trustee for himself. He said: "The only doubt I felt was whether the advantage of a tenancy in common over a joint tenancy raised any presumption against merger. But the difference in interest between these two estates is so small and shadowy that I do not think it would be sufficient to raise that presumption. I hold that two or more persons cannot be trustees for themselves for an estate co-extensive with their legal estate." It is respectfully submitted that the learned judge rightly rejected the executors' claim, but for the wrong reasons. The deed of assignment was a conveyance by a trustee under a simple trust, who had been requested by his cestui que trusts to execute the estate to them. In such conveyance the limitation of the estate was expressly made to the cestui que trusts as joint tenants at their own request; their intention to take as such was plainly evidenced by the deed which they executed themselves. Why, then, should there be any equity to preserve their estate in common contrary to their expressed intention? (See Fowkes v. Pascoe, L. R. 10 Ch. 343.) Suppose, however, that they had taken the assignment to themselves jointly on trust as to one moiety for the one and as to the other moiety for the other, or, which is the same thing, on trust for themselves as tenants in common in equal shares. Would the Court then have rejected the executors* claim? I think not. It is respectfully submitted that the learned Judge's dictum as to the difference between joint tenancy and tenancy in common being small and shadowy was an incautious utterance. There is nothing to prevent a man from being a trustee for himself and others, or from being one of several trustees for himself. If lands are conveyed to the use of A. and B. in fee as joint tenants on trust for them in fee in equal shares, each undivided moiety is, in equity, held by a several title: see Litt. s. 292. At law A. and B. are joint tenants in fee; each is therefore seised of the whole. But in equity A. and B. have no interest in each other's shares; each has a several title to one half only. In all except unity of possession the ease is the same as if two separate pieces of land had been assured to the use of A. and B. in fee on trust, as to one for A. in fee, and as to the other for B. in fee. How, then, can it possibly be maintained that their estates in equity are co-extensive and com-mensurate with their estates in law? And where the equitable estate is not commensurate with the legal estate in the same person, there is no merger: see Brydges v. Brydges, 3 Ves. 120, which was not cited in Re, Selous. The rule in Selbyv. Alston has never been supposed to apply to land assured to the use of partners in fee as part of their partnership estate; and the ease of Re Selous certainly affords no good reason why the construction previously placed on such assurances should be in any way disturbed. The interest which the partners take in equity by reason of their interest in the partnership is altogether different from that which they have by reason of their tenancy at law: note (c) above. And it is contrary to the principles of equity that an equitable interest in any property, which interest has become ted in the legal or equitable owner of the property, but is not of exactly the same nature as his ownership, shall merge in the ownership if it were not intended that such merger should take place: -Forbes v. Moffatt, 18 Ves. 384; Adams v. Angell, 5 Ch. D. 634; Re Pride, 1891, 2 Ch, 135; Minter v. Carr, 1894,3 Ch. 498; Thorne v. Cann, 1895, A. C. 11; Ingle v. Vaughm Jenkins,. 1900, 2 Ch. 368;

Thellusson v. Liddard, ib. 635. The cases at Re Wray, 1906, 2 Ch. 352, fit Bourne, 1906, 2 Oh. 427, 432, 433, and Be Kent County Gas, &C. Co., Ltd'., 1909, 2 Ch. 196, show clearly that, where real estate is vested in partners as joint tenants, their beneficial inter therein are personalty in equity, and arc according to their interests in the partnership property.

30 (2)

(a) Harrison v. Jackson, 7 T. R. 207; Steiglitz v. Egginton, Holt, 141; Marchant v. Morton, 1901, 2 K. B. 829, 832.

(b) See Me Clough, 31 Oh. D. 324; Lindley on Partnership, 16G, 7th ed.; Pollock on Partnership, 35, 8th ed.

(c) See stat. 53 & 51 Vict. c. 39, ss. 5, 6.

(d) See Butehart v. Dresser, in Hare, 453, 456, 4 De G. M. & G. 542.

(e) Stat. 53 & 54 Vict. c. 39, s. 38.

Power of surviving partner to sell or mortgage the firm's lands.

(f) Re Clough,31 Ch. D. 324.

(g) Re Bourne, 1906, 2 Ch. 127.

(h) S. C, 1906, 2 Ch. 430 - 433 43:5.

(i) The title to the legal estate depends of course on the manner in which it was held on trust for the firm; see above, p. 465. If the land had been rested at law in the two partners as joint tenants in fee, the surviving partner alone could convey the entire legal estate.

(k) See Davidson, Prec. Conv. vol. 5, pt. ii. p. 355, 3rd ed. Such options must be exercised precisely according to their terms; Vyse V.Foster, 7 H. L. 31S, 329: but it is thought that, if so exer-cised, they relate back to the time of their creation and amount to absolute contracts, deriving their effect from the articles of partnership, to purchase the deceased partner's share.