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referred to in the subsequent act, 1 Vict. c. xxiii, extending the borrowing powers of the Company, were the 2nd and 3rd sections (2).
The following form was used by the company for their debentures :-" In pursuance of an act passed in the first year of Queen Victoria, to authorize the Newcastle and Carlisle Railway Company to raise an additional sum of money for the purposes of their undertaking, the said Newcastle and Carlisle Railway Company promise to pay on the day of to o r bearer the sum of 6001., so much money borrowed on the credit of the undertaking under the powers of the said act, together with interest thereon at 5l. per cent. per annum."
Mr. Stuart and Mr. Faber, on behalf of the plaintiff, the widow of the testator, contended that the bank shares and railway debentures being both of them charges upon land, savoured of the realty, and therefore came within the Mortmain Act, and could not be taken by the charities, It was admitted that the mortgages and bridge shares came within the act, and there was nothing to prevent the bank shares and railway debentures from coming within the same principle. The following cases were cited
Knapp v. Williams, 4 Ves. 430, n.
and expenses relating thereto, and the company should be desirous of raising a further or additional sum of money, it should be lawful for the said company from time to time, or at any time, to borrow and take up, at interest, any such further or additional sum or sums of money not exceeding in the whole the sum of 100,0001., on the credit of the said undertaking, as to them should seem meet, and the said company, or the directors thereof, after an order should have been made for that purpose by any general meeting, were thereby authorized and empowered to assign the property of the said undertaking and the rates arising or to arise by virtue of that act, or any part thereof, as a security for any such further sum or sums of money to be borrowed as aforesaid, with interest, to such person or persons, or to his, her, or their trustee or trustees, as should advance the same by any assignment under the common seal of the said company, in the particular form thereafter set forth.”
Sect. 62. “ Provided that the interest of the money which should be raised by mortgage as aforesaid should be paid half-yearly to the several persons entitled thereto, in manner therein mentioned ; and in case the same or any part thereof should be behind and unpaid as therein mentioned, it should be lawful for two or more Justices of the Peace, acting in and for the counties therein specified, and they were thereby required, on request to them made by or on behalf of any mortgagee or mortgagees whose interest should be so in arrear, by an order under their hands, to appoint one or more person or persons to receive the whole or such part or parts of the said rates as were liable to pay such interest so due and unpaid as aforesaid, and the money so to be received by such person or persons was thereby declared to be so much money received by or to the use of such person or persons to whom such interest should then be due, until the same, together with the costs and charges of recovering and receiving the said rates should be fully satisfied and paid, and after such interest and costs should have been paid and satisfied, the power and authority of such receiver and receivers for the purposes aforesaid should cease and determine."
(2) Sect. 2 enacted, “That when and as soon as the sums therein mentioned should have been respectively subscribed, raised, and paid, as therein also mentioned, then and at any time or times thereafter, it should be lawful for the said railway company, by any order or orders of any general or special general meeting of the said company, to borrow and take up at interest, in addition to the sums by the previous acts of the company and by that act before authorized to be raised and borrowed, any sum or sums of money, not exceeding in the whole the sum of 100,0001., on the credit of the said uudertaking, from any body or bodies politic or corporate, or other person or persons willing to lend the same upon such terms as to priority of ranking amongst the bodies politic or corporate, or other person or persons lending the said sum or
Mr. Renshaw, for the next-of-kin of the testator, supported the plaintiff's case against the charities, and cited Finch v. Squire (3).
Mr. J. Parker and Mr. Wetherell appeared for the charities, and contended that the bank shares and railway debentures were not within the Mortmain Act,
sums of money, as might be agreed on between them and the said company, so always nevertheless that all mortgages which should have been given or made by the said company before the passing of that act should have priority over, and should precede all mortgages and other securities to be given or made by the said company in the execution of that act."
Sect. 3 enacted, “That all powers and other clauses whatsoever contained in the previous acts of the company, or any of them, so far as the same were not repugnant to the provisions of that act, should be applicable to the shares by that act authorized to be created, and to the monies subscribed for or in respect of such shares, and to the monies by the act authorized to be borrowed, in the same manner in all respects as near as might be as if such shares had been authorized to be borrowed by the said previous acts."
(3) 10 Ves. 41.
and that neither of them were charges upon ment applicable to the provisions of the land. It was impossible to find any last act, relative to the borrowing of money. company that was not possessed of land; By the 62nd section of the first act, io but the shareholder in a bank could not Geo. 4. c. lxxii, it is provided that the lay his hand upon any portion of such land interest of the money which should be and claim it as his own. By the deed of raised by mortgage as aforesaid should settlement establishing the Northumber- be paid half-yearly in manner therein menland and Durham Banking Company tioned; and in case the same, or any part referred to by the Master, it was expressly thereof should be behind and unpaid as declared that no benefit of survivorship therein mentioned, it should be lawful should arise amongst the shareholders, and for two or more Justices of the Peace, on all the property of the company, as between request to them made by or on behalf of the shareholders and their respective re- any mortgagee or mortgagees whose interpresentatives, should always be considered est should be so in arrear, by any order and deemed to be personal estate, so that under their hands, to appoint one or more each shareholder should have a distinct person or persons to receive the whole, or and separate right as between themselves such part or parts of the said rates as were to the shares in the capital of the company, liable to pay such interest so due and unand that such shares in case of intestacy paid as aforesaid, and the money so to be should be transmissible to the personal received by such person or persons was representatives of a deceased shareholder. thereby declared to be so much money As to the railway debentures, they were received by or to the use of such person nothing more than promissory notes given or persons to whom such interest should by the company, and were in no respect be then due, until the same, together with chargeable upon the lands of the company, the costs and charges of recovering and and could not be held to come within the receiving the rates, should be fully paid Mortmain Act. The following cases were and satisfied ; and after such interest and cited :
costs should have been paid and satisfied, March v. the Attorney General, 5 the power and authority of such receiver
Beav.433; s.c. 12 Law J. Rep. (N.s.) and receivers for the purposes aforesaid
should cease and determine. The lanThompson v. Thompson, 1 Coll. 381; guage, you will observe, is “ to receive the
s.c. 13 Law J. Rep.(n.s.) Chanc. 455. whole, or such part or parts of the said Hilton v. Giraud, i De Gex & S. 183; rates as are liable to pay such interest.”
s.c. 16 Law J. Rep.(n.s.) Chanc. 285. Now, it does not appear, by the form of Blount v. Hipkins, 7 Sim. 43 ; s.c. the debenture, that the rates are liable at
4 Law J. Rep. (n.s.) Chanc. 13. all. There is no expression amounting to Sparling v. Parker, 9 Beav. 450 ; s.c. an assignment of the rates, or to a decla16 Law J. Rep. (n.s.) Chanc. 57. ration that they shall be liable, but merely
a general promise to pay “so much money Feb. 21.- The Vice ChanceLLOR.-It borrowed on the credit of the undertaking. appears to me that the bank shares are There is no expression which can amount within the Statute of Mortmain, and the to an assignment of the rates. It does only question is as to the railway deben- not appear to me, therefore, that the debentures, whether they come within the Statute ture gives any right under section 62 of the of Mortmain. My opinion is, that they do act of 10 Geo. 4. That section seems applinot. The act of parliament, 1 Vict. c. xxiii, cable only to cases in which, by means of gives something very different from this. some instrument which a creditor holds in It enables the company to borrow money his hands, the rates are made liable to pay upon the credit of the undertaking, and the interest. But, supposing even that this there is a particular provision that mort- view is not the correct one, it is only a gages made before the act was passed were mode of using an instrument which a party to have the priority; and then the third has in his hands. It is true that an ordisection makes all the former acts of parlia- nary promissory note may be said, in a
circuitous way, to affect the lands of a party liable to pay it, because the holder of it might obtain a judgment against the person giving the note, in an action, and might then take out execution on his lands, but no one would say that such note was a charge upon land. My opinion therefore is, that the railway debentures are no charge upon the land, and do not come within the Mortmain Act.
SURTEES O. HOPKINSON. Legacy-Residuary Personal EstateStocks, Funds and Securities - Railway Shares.
A testator gave to trustees all his leasehold estates, and the residue of his monies, chattels, funds, railroad shares, securities for money and other personal estate and effects, on trust, to convert into money all such parts as should not consist of government securities, stocks, funds, or railroad shares, and apply the monies arising there. from for the benefit of his wife and children, and after the death of his wife if there should be no children, the testator directed his real estate to be sold, and the money arising therefrom, and also the money arising from his residuary personal estate and effects, to be held upon certain trusts mentioned in his will :-Held, that the railroad shares passed in the gift over after the death of the widow.
vary such securities, stocks, shares, or funds, and stand possessed of all his real and personal estate, upon trust for his wife for life, with remainder to his children ; and in case he should die without leaving issue, then upon trust, after the death of his wife or of such issue, to sell and dispose of his said real estate. And the testator further directed his trustees to stand possessed of the monies arising from his real estate thereinbefore devised, and also the monies arising from his residuary personal estate and effects thereinbefore bequeathed, upon trust, to lay out the same in the names of his said trustees or trustee in or upon the public stocks or funds, or other Government securities, or on mortgage or any other real security in England or Wales, with power to vary or transpose as well the stocks, funds and securities whereon such investment should be made, as the stocks, funds, or securities which might at his decease compose part of his said personal estate, from time to time as often as occasion should require, and apply the same for the benefit of his four nephews and nieces, in manner therein mentioned.
The testator died without issue in the year 1835, and his widow had since departed this life.
The suit was instituted for the administration of the testator's estate, and upon a reference to the Master it was ascertained that the testator was possessed, amongst other property, of certain railroad shares. The cause now came on upon further directions, and the question raised was, whether the railway shares were included in the gift of the residue after the widow's death.
It was contended, for the representatives of the widow of the testator, that the railway shares were not included in the gift of the residue after her death. The testator, in the event of the death of his wife and failure of issue, had disposed of the monies arising from the sale of his real estate and his residuary personal estate thereinbefore bequeathed, upon trust, to invest the same upon public stocks or funds or other Government securities, with power for his trustees to vary or transpose, as well the stocks, funds and securities whereon such investment should be made,
The bill stated that Walker Ferrand, by his will, dated the 4th of December 1834, gave and devised to trustees all his real estate, and also all his leasehold estates and the residue of his monies, chattels, funds, railroad shares, securities for money and other personal estate and effects of what kind soever, to which he or any person or persons in trust for him should be entitled at the time of his death, upon trust, to convert into money all such parts of his personal estate as should not consist of Government or real securities, stocks, funds, or railway shares, or mortgages upon real estates, and place the same out at interest apon Government or real securitina, and from time to time to alter and
as the stocks, funds, or securities which might at his decease compose part of his personal estate for the benefit of his nephews and nieces. These words did not include railway shares, which were not stocks, funds, or securities for money; and if he had intended to pass railway shares, he would have mentioned them as he had done in the first part of his will. The testator had given no authority to the trustees to invest in railway shares : all he had said regarding them was, that they were not to be sold.
Mr. Stuart, Mr. Bethell, Mr. James Parker, Mr. Malins, Mr. Prior, Mr. Amphlett, Mr. Bloxam, and Mr. Bunny appeared for different parties in the suit.
K. BRUCE, V.C.)
} FARWELL V. SEALE.
Legacy Duty- Assignment of Purchasemoney to arise from the sale of Real Estate -Executor-Purchaser of a Legacy.
In 1795 a reversion in real estate was devised to trustees upon trust, after the death of the tenant for life, to sell the estate, and to pay a part of the purchase-money to A. A, by will, made F. his executor and L. his residuary legatee. By a deed dated in 1828, in consideration of 6,000l. paid to F. as executor of A, F, by the direction of L, assigned the right to the purchase-money to S. No mention was made of the legacy duty at the time of this sale. In 1836 the estate was sold, on the death of the tenant for life, to S, and A's share of the purchasemoney was allowed to him. In 1846, F, as executor of A, was made to pay the legacy duty. L. died insolvent. A bill was filed by F. in 1846, against the executors of S, and the devisee of the estate under his will, praying to be recouped the sum paid for legacy duty.--Held, that F. had no right to recover this sum, either against the executors or the devisee.
The VICE CHANCELLOR. - It does not appear to me that there is any difficulty in the case. It is bound by the words of the will; the testator first makes a general disposition to his trustees of all his leasehold estates, and the residue of his monies, chattels, funds, railroad shares, securities for money, and other personal estate and effects, on trust, to convert into money all such parts as should not consist of Government securities, stocks or funds, or railroad shares, or mortgages, and to alter and vary such securities, stocks, shares and funds as should seem advisable. That was an express direction to turn something into securities, and to vary those things which were in the shape of railroad shares, and to stand possessed of all his real and personal estate, upon trust, for his wife for life, with remainder to his children. And then, in the event of his dying without issue, there is, what did not occur before, an express direction to sell and dispose of his real estate, and the trustees were to stand possessed of the monies arising from his real estate, and also the money arising from his residuary personal estate and effects thereinbefore bequeathed. What is the meaning of the term “ arising”? He could not mean as he left it at the time of his death, but subject to all that variety of form which the trustees were authorized to make. My opinion is, that these words are sufficient of themselves to carry the railway shares.
Grace Cholwich, by a codicil to her will, devised the reversion of an estate at Dittisham in Devonshire, expectant on the death of J. B. Cholwich without issue, to Charles Kitson and William Kitson in fee; upon trust to sell the same when it should fall into possession, and to divide the net purchase-money into five parts, and to pay one-fifth to Sarah Lear; one-fifth to Mary Ann Lear; one-fifth to Thomas Lear; and the remaining two-fifths to the persons in the codicil mentioned. Grace Cholwich died in 1795.
Sarah Lear, by her will, made Thomas Lear her residuary legatee and executor, as also did Mary Ann Lear, and both Sarah Lear and Mary Ann Lear died before the year 1814, in the lifetime of Thomas Lear. Thomas Lear did not prove either of these wills.
Thomas Lear, being so entitled to threefifths of the purchase-money on the death of J. B. Cholwich, by his will made William Thomas Lear his residuary legatee, and George Farwell, Richard Strode, J. L. Kitson, Grace Lear, and Dolly Lear,
his executors, and died in 1814, and his I n 1836, the estate was sold by auction, will was proved by Farwell, Strode and and Sir John Henry Seale was the purKitson alone. Strode and Kitson died chaser of the greater part of it, and the before 1828.
sum of 9,4051. 14s. 10d. was paid or In August 1828, William Thomas Lear allowed to him in respect of three-fifths of agreed to sell his reversionary interest in the net purchase-money. the three-fifths of the purchase-money I n 1846, the Commissioners of Stamps “free from all incumbrances committed made George Farwell, as the representative by him” to Sir John Henry Seale for of Sarah Lear, Mary Ann Lear, and 6,8501. With this agreement were incor- Thomas Lear (Grace Lear and Dolly Lear porated certain conditions of sale, which being both then dead) pay 3851. is. 8d. had been prepared with a view to the sale in respect of the legacy duty on the 9,4051. of the property by auction, one of which 14s. 10d. paid or allowed to Sir John was as follows :"It must be understood Henry Seale. that the interest now offered for sale, is to It appeared that William Thomas Lear be sold, subject to every incumbrance that had died insolvent in 1839; and that Sir can or may by any possibility affect it, John Henry Seale had also died, having either at law or in equity, and to a pro- devised and bequeathed all his property portion of the expenses of the sale that to C. H. Seale, and John Lampire, in will take place on the death of Mr. Chol. trust for Sir Henry Paul Seale; and wich, and making out of the title.”
appointed his trustees and Sir H. P. Seale With a view to this sale, George Far- his executors, who proved his will. Sir well took out administration to Sarah Lear Henry Paul Seale was in possession of and Mary Ann Lear, with their wills the devised lands. annexed.
The bill was filed by George Farwell By an indenture, dated the 5th of against C. H. Seale, John Lampire and August 1828, and made between William Sir Henry Paul Seale; and prayed that Thomas Lear of the first part, George the legacy duty paid by him might be Farwell, Grace Lear and Dolly Lear of declared to be a charge on the lands sold the second part, the said George Farwell to Sir John Henry Seale, or paid out of of the third part, the said George Farwell his assets. of the fourth part, and Sir John Henry By the 36 Geo. 3. c. 52. s. 11. it was Seale of the fifth part, after reciting to enacted that, if any benefit should be given, the effect before stated, and that it had in such terms, that it could only be ascerbeen agreed that, to avoid all questions as tained at the time of the application of the to the debts of Sarah Lear, Mary Ann fund, the duty should be charged on, and Lear, and Thomas Lear, the purchase- paid out of, the fund. By the 22nd section money should be paid as thereinafter men- it was enacted that, where there should be tioned, it was witnessed that, in consider- a legacy, which could not be reduced into ation of one-third of the 6,8501. paid to money, it should be lawful for the persons, George Farwell, Grace Lear, and Dolly who ought to pay the duty, to take the Lear, as representatives of Thomas Lear; steps therein mentioned for ascertaining one-third to George Farwell as adminis. the value of the legacy, and to pay the trator of Sarah Lear, and the remaining duty. one-third to George Farwell, as adminis. By the 45 Geo. 3. c. 28. it was first trator of Mary Ann Lear, the receipt of enacted, that legacies given out of sums which said sums was duly acknowledged, arising from sales of real estate should George Farwell, Grace Lear, and Dolly be made liable to legacy duty. Lear, by the direction of William Thomas Mr. Russell and Mr. Whitbread, for the Lear, assigned to Sir John Henry Seale plaintiff, contended, first, that the agreethe three-fifths of the purchase-money. ment for sale and the conditions of sale, The usual receipts were indorsed on the together, constituted a contract on the deed, and signed by Mr. Farwell.
part of Sir J. H. Seale to pay all expenses In 1835, J. B. Cholwich died without whatever, including the legacy duty; and issue.
therefore, that the executors of Sir J. H.