and duly executed by them. This deed was verbatim as follows:-" Whereas the said Thomas Reavely, party hereto, some time since purchased several parcels of shares, amounting in the whole to fifty-six shares for and on account of his son Thomas Reavely the younger, and the same shares were conveyed or transferred to him, the said Thomas Reavely the younger, with the consent of the managing directors of the said company, upon a declaration that the said Thomas Reavely the younger, as such purchaser, was of the full age of twenty-one years, and was not incapacitated from any cause whatsoever from entering into the necessary covenants in the deed of transfer. And whereas the said Thomas Reavely the younger was at the respective times when the said shares were so transferred to him in the books of the said banking company, and at the time he executed the deed of transfer and entered into the covenant set forth therein, and still is, a minor under the age of twenty-one years. And whereas the said purchase and transfer were entered into and executed in ignorance by the said Thomas Reavely, party hereto, of the regulations of the said banking company, and he has, at the request of the directors of the said banking company, agreed to enter into covenants to save harmless and indemnify the said banking company and the directors and other members thereof, and their goods and chattels of, from and against all losses, costs, damages, and expenses which they, or any of them, shall or may at any time or times hereafter sustain or be put unto for or by reason of his, the said Thomas Reavely the younger, not being of the age of twenty-one years when he became the proprietor of the said shares. And whereas the said Thomas Reavely, party hereto, hath received, as the guardian of the said Thomas Reavely the younger, various dividends, and it has been agreed shall continue to receive, as such guardian as aforesaid, the dividends hereafter to grow due in respect of the said shares on his entering into the covenants hereinafter contained for indemnifying the directors and other members of the said banking company, and their goods and chattels. Now, this indenture witnesseth, that in pursuance of the said

agreement, and in consideration of 5s. sterling to the said Thomas Reavely, party hereto, paid by the said persons parties hereto of the second and third parts, the receipt whereof is hereby acknowledged, he, the said Thomas Reavely, party hereto, doth hereby for himself, his heirs, executors and administrators, covenant, promise and agree to and with the said persons parties hereto of the second and third parts, their heirs, executors and administrators, that he, the said Thomas Reavely the younger, his heirs, executors and administrators, shall and will from time to time, and at all times, as well in respect of the said shares herein before referred to, as in respect of any other share or shares of which the said Thomas Reavely the younger, while under the age of twenty-one years, shall, with the approbation of the board of directors of the said banking company, become the proprietor, well and truly pay all instalments that may be duly required thereon, and well and truly observe and perform and in all respects keep all the covenants, agreements and provisions contained or referred to in the present or any other deed or deeds of settlement, or constitution of the said banking company. And also all other stipulations, provisions, and regulations for the time being affecting or intending to affect holders of shares in the said company, so far as the same ought, on the part of the said Thomas Reavely the younger, to be observed, performed and kept: and also that the said Thomas Reavely the younger shall, upon his attaining the age of twenty-one years, execute the deed or deeds of settlement or constitution of

the said banking company. And the said Thomas Reavely, party hereto, doth hereby, for himself, his heirs, executors and administrators, covenant and agree with and to the said persons parties hereto of the second and third parts, their executors and administrators, that he, the said Thomas Reavely, party hereto, his heirs, executors and administrators, shall and will at all times hereafter well and sufficiently save harmless and keep indemnified, as well the said persons parties hereto of the second and third parts, as the directors for the time being and other members of the said banking company, and their and

every of their goods and chattels, lands and tenements, of, from and against all losses, costs, damages and expenses, which they, or any of them, may sustain, incur, or be put unto by reason of the said Thomas Reavely the younger so being under the age of twenty-one years as aforesaid, or on account of the dividends already paid to the said Thomas Reavely, party hereto, as such guardian as aforesaid, or to be received by him at any time hereafter, or in anywise relating thereto; and also shall and will, if requested by the said parties hereto of the second and third parts, repay unto the said Thomas Reavely the younger, on his attaining the age of twenty-one years, all dividends already received or to be received by the said Thomas Reavely, party hereto, in the mean time as guardian of the said Thomas Reavely the younger."

Ten additional shares were afterwards purchased by the father with the money of the grandmother, and transferred into the name of Thomas Reavely the younger.

Under these circumstances the Master (Farrer) certified that he had included Thomas Reavely, sen. in the listas a contributory without qualification. An application was now made by Thomas Reavely the elder that the above certificate might be reversed, and that he might be struck out and excluded from the list.

Mr. Russell and Mr. Manisty, for the motion.

Mr. Bacon, Mr. Lloyd, and Mr. Headlam, against the motion, were not called

upon.

KNIGHT BRUCE, V.C.-Independently of the great respect due to the opinion of Mr. Farrer, there is so much good sense, reason, and fairness in the conclusion to which he has come in this respect, that, to find myself placed under the necessity of differing from him would be to me a matter of the greatest regret. I do not find myself placed under such a necessity. How the case would have stood if the minor had attained his majority, or if the company had not been actually dissolved, or if there had been no directions that the affairs of the company should be wound up under the provisions of this act of parliament, it is unnecessary for me to say. I have to

Some

A. purchased shares in a joint-stock banking company with his own money, and had them transferred into the name of B, and directed B. to stand possessed of them in trust for C. and D, the infant children of A. B. accepted the trust, received the dividends on the shares, and paid them into a bank to the general account of A. time after the transfer, A. and B. signed an instrument, whereby B. declared that he was a trustee of the shares for C. and D, and A. indemnified B. against all losses which might be incurred by him on account of the shares:-Held, that A. was not a contributory within the meaning of the JointStock Companies Winding-up Act.

Richard Fenwick, the father of John Richard Fenwick and George Fenwick, in 1842 purchased 195 shares in the North of England Bank with his own money, and had them transferred into the name of his

brother, John Fenwick, and directed John Fenwick to hold 100 of the shares in trust for John Richard Fenwick, and the other 95 in trust for George Fenwick. John Richard Fenwick and George Fenwick were both infants. John Fenwick was registered as the proprietor of the shares, with his consent, and accepted the trust. He received the dividends that were paid on the shares, signed the dividend warrants, and paid the amounts to the general account of Richard Fenwick in the North Shields Bank. Three calls, which were made in respect of the shares, were paid by John Fenwick, but the money was supplied to him by Richard Fenwick, who raised it by the sale of other shares in other joint-stock banking companies, which were vested in John Fenwick in trust for the infants. The deed of settlement of the banking company provided, that the person in whose name the shares should stand should be (as between him and the company) to all intents and purposes the owner of the shares, and that the company should not be bound to acknowledge any trust.

The following instrument, dated the 6th of September 1843 (some time after the shares had been purchased) was signed by John and Richard Fenwick :-"It is this day mutually declared and agreed between us, the undersigned Richard Fenwick, of &c., and John Fenwick, of &c., that the undermentioned shares, namely, (certain shares therein mentioned) and 195 shares in the North of England Joint-Stock Bank are held by the said John Fenwick in trust for John Richard Fenwick and George Fenwick (sons of the said Richard Fenwick), and that the said Richard Fenwick is entitled to the dividends, profits, and emoluments arising from the said shares until his said sons, John Richard and George, shall attain their respective ages of twentyone years; and the said John Fenwick further declares that the said John Richard Fenwick and George Fenwick attaining their majority, or at the request of the said Richard Fenwick, the said John Fenwick shall and will transfer the said shares so held by him in trust as aforesaid unto the said John Richard Fenwick and George Fenwick, their executors, administrators or assigns, or to such other person or persons as they or any of them may appoint;

NEW SERIES, XVIII-CHANC.

and the said Richard Fenwick, his heirs, executors and administrators, doth hereby agree to hold the said John Fenwick, his heirs, executors, administrators and assigns, harmless and indemnified against all losses, damages, failures, and expenses which may from henceforth arise, for or by reason or on account of his said shares so held by him the said John Fenwick, his executors, administrators and assigns, in trust for the said John Richard Fenwick and George Fenwick, their heirs, executors, administrators and assigns."

The Master had, under the reference mentioned in the preceding case, refused to insert the name of Richard Fenwick in the list of contributories.

This was a motion made by way of appeal from the Master's decision for the purpose of having the name of Richard Fenwick inserted in the list.

Mr. Bacon, Mr. Lloyd and Mr. Headlam, for the motion, contended that, under the above circumstances, Richard Fenwick's name ought to be inserted; and cited Ex parte Reavely (1).

Mr. Lee and Mr. F. S. Williams, contrà, were not called upon.

KNIGHT BRUCE, V.C. Mr. Richard Fenwick may or may not be liable to indemnify Mr. John Fenwick: that is a question with which I consider myself to have nothing to do. Mr. Richard Fenwick may or may not be liable to all the creditors of the company for every shilling of this debt. That also is a question with which I consider myself as having nothing to do. The question before me is, whether Mr. Richard Fenwick is a person whose name, for the purposes of this act, ought to be inserted in the list of contributories to the company. I am of opinion that he is not. As to Mr. John Fenwick, the question is not before me. Probably his name was inserted there with perfect propriety. I am satisfied that Richard Fenwick's name is not a name that ought to be there. The bank must pay the costs of this motion, which I refuse.

(1) Ante, p. 110.

Will-Election-Dower-Leasing Power.

A testator made a specific devise of real estate, and then devised all the residue of his real and personal estate to trustees, upon trust, to pay R. G, his wife, an annuity of 201., and then upon the trusts therein mentioned. He then empowered his trustees to lease any lands which they might hold on the trusts of his will. The testator was at his death entitled to freehold estates, which had been conveyed to uses to bar dower in his favour, and some copyhold estates:· Held, that the widow was put to her election between the annuity and her free bench out of the copyhold estates.

William Grayson, the testator in the cause, by his will, dated the 26th of October 1839, directed his debts and his funeral and testamentary expenses to be paid; and then made a specific devise of part of his freehold estate therein mentioned; and made certain bequests therein also mentioned; and then gave, devised, and bequeathed unto M. Deakin, J. Benn, G. Grayson, and J. Ford, their heirs, executors, administrators and assigns, all the rest, residue and remainder of his real and personal estate of whatsoever kind and wheresoever the same might be, upon trust to invest the money or securities for money in the funds, and to receive the dividends thereof, and the rents, issues and profits or other annual produce of his real estate; and, after payment of his just debts, funeral and testamentary expenses, to pay to his wife Ruth Grayson, during her life, the clear annual sum of 201. by equal quarterly payments, on the four usual days for payment of rent in the year; and then to pay M. Deakin an annuity of 100l., and to pay the residue of such annual produce to W. Grayson for his life, and after his decease to hold the real and personal estate so devised and bequeathed upon the trusts therein mentioned for the benefit of the children of W. Grayson, and, among other trusts, upon trust to sell all the real estate when the youngest child of W. Grayson should attain twenty-one. The will then contained the clause following:"And I do declare and hereby empower my

said trustees to lease any lands which they may hold upon the trusts of this my will for not more than twenty-one years at rack rent, subject to the usual covenants."

The testator died in October 1843, leaving his widow Ruth Grayson, W. Grayson, and several children of W. Grayson him surviving. The testator at the date of his will was entitled to some freehold estates, which had been conveyed to uses to bar dower in his favour, and some copyhold estates, held of the manor of Wimbledon, which were subject to the free bench of the widow, according to the custom of that manor, in which free bench follows in all respects the rule of dower at common law.

In 1845 a suit was instituted by W. Grayson against his children, and the trustees and executors of the will, for the administration of the real and personal estate of the testator. Mrs. Grayson was not made a party to this suit. Mrs. Grayson received the annuity given to her by the will from the death of the testator, and, until 1847, never made any claim to free bench out of the testator's copyhold estates.

In 1847, a piece of the testator's copyhold land having been contracted to be sold to the Richmond Railway Company, and the company having required that Mrs. Grayson should be a party to the conveyance to release her free bench, her attention was first called to her rights in respect of the testator's copyhold estates.

In order to decide whether Mrs. Grayson was entitled both to the annuity and her free bench, or whether she was bound to elect between them, it was agreed that a petition, raising the question, should be presented by the plaintiff, Mr. W. Grayson, and served on all the parties to the cause and Mrs. Grayson, and that Mrs. Grayson should appear on it. A petition was accordingly presented, stating the above circumstances, and praying that it might be declared that the widow was bound to elect between the annuity and her free bench.

The petition now came on to be heard. It appeared on the statement of the petition that several of Mr. Grayson's children were infants; and, a question having been raised how far these children were competent to consent to the abovementioned arrangement for having the point decided,

KNIGHT BRUCE, V.C. said he would hear the petition, without prejudice to this question, in case he should be of opinion that the widow was entitled both to the annuity and her free bench.

Mr. Russell and Mr. Anderson, for the petition. The widow is bound to elect. The question turns on the leasing power; and the case is covered by the authority of Hall v. Hill (1), where Sir E. Sugden held that a power of leasing given by the testator to his trustees put the widow to her election between the benefits given by the will and her dower. The leasing power in this case authorizes the trustees to lease any lands which they may hold in trust, and not all the lands. This is explained by the specific devise of a part of the freehold estates contained in the early part of the will. They also cited—

Lowes v. Lowes, 5 Hare, 501; s. c.

15 Law J. Rep. (N.s.) Chanc. 369. O'Hara v. Chaine, 1 Jon. & Lat. 662.

Mr. Bacon and Mr. Archibald Smith, for Mrs. Grayson.-Mrs. Grayson is not bound to elect, but is entitled both to the annuity and her free bench. It is settled that the gift of an annuity charged on real or personal estate does not put the widow to her election. The gift then to the widow, in this case, of the annuity may be left out of consideration. A widow would be put to her election by provisions in the will as to the testator's real estate which might fairly be taken to be inconsistent with her dower. Miall v. Brain (2), Butcher v. Kemp (3), Roadley v. Dixon (4), and Lowes v. Lowes are cases of this description, and are clearly distinguishable from the present case. Hall v. Hill is the first case in which a leasing power was taken into consideration as affecting the question of election. Hall v. Hill, however, cannot be considered as conclusive on this point. In the first place there were several other circumstances in that case, besides the leasing power, which were remarked on by the Court, and may have influenced the decision. The circumstances in that case

66

In

do not exist here. On this ground the cases are distinguishable. Secondly, there is a difference between the wording of the powers of leasing in the two cases. Hall v. Hill, after the gift of an annuity and a portion of the real estate to the widow, there are these words :—“ I give to the said C. N. full power and authority to lease, devise, or set all or any part of my said estates." Here the words are, "I empower my trustees to lease," not all, as in the other case, but "any lands which they may hold in trust." This affords a second ground of distinction. In the third place, the lands in Hall v. Hill were all freehold; here, some are freehold and some copyhold. The copyhold estates, again, are probably not demisable, except by the licence of the lord. The testator has freehold estates, to which the words used by him would be particularly applicable, and he has copyhold estates to which they would not. These words then ought to be confined to the former. The circumstance of there being copyhold estates forms the third ground of distinction. may be a very reasonable question whether, if Hall v. Hill turned on the leasing power alone, it could be supported; but for the above reasons it is not necessary to enter into that question. Hall v. Hill goes beyond every other case, and to decide that the widow here is put to her election would go beyond Hall v. Hill. O'Hara v. Chaine, in which Hall v. Hill is subsequently noticed by Sir E. Sugden, and where there was a leasing power, was decided on other grounds than the leasing power.

It

KNIGHT BRUCE, V.C.-If this case had been clear of all authority, it is probable, at least, that I might hold that the widow was not put to her election. The case, however, is very far indeed from being clear of authority.

The first question, if question it can be called, is, whether, if the power of leasing had been out of this will, the widow would have been put to her election? As to this, whatever might have been thought of it independently of authority, the authorities render it impossible to suggest that she would, in this case, have been put to her election.