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STEELE V. PLOMER.

L.C.
Feb. 10, 24.)

Practice —33rd Order of May 1845– Baron and Feme Entering Appearance for Wife.

In a suit against husband and wife, the husband, residing in Scotland, was served on behalf of himself and his wife with a subpena and office copy of the bill under the 33rd Order of May 1845, his wife then living apart from him. The husband entered an appearance for himself alone :-Held, that the plaintiff was entitled under that Order to enter an appearance for the wife.

but only the proper ordinary service. If that service was made in Scotland, then all the same consequences will follow upon a defendant as if the subpæna had been served in England. The husband has entered an appearance for himself only when he should have appeared for himself and his wife. I am of opinion that service of the subpæna upon the husband was sufficient, and the application must be granted.

This was a second suit between the same parties, and for a similar object. The subpæna for the husband and wife to appear and answer, together with the office copy of the bill, was served upon the husband in Scotland, under the 33rd Order of May 1845 (1). The husband entered an appearance for himself alone, and a motion was then made before Vice Chancellor Knight Bruce, for leave to enter an appearance for the wife. The Vice Chancellor expressed a doubt whether the case was within the Orders, and declined to make the order, but recommended the case to be brought before the Lord Chancellor. The motion was now renewed before the Lord Chancellor.

Mr. Elderton, in support of the application. The subpæna in this case was not served upon the wife personally or left at her dwelling-house as required by the 29th Order of May 1845, but was served on the husband alone, and his wife was living apart from him. If the defendants were living within the jurisdiction service upon the husband would be good service on the wife, and there is nothing in the 33rd Order which renders personal service upon the wife necessary before an appearance can be entered for her by the plaintiff.

L.C. )

SMITH v. PINCOMBE. Feb. 9. S

WitnessExamination - Names of Witnesses-Order to examine a Co-defendantSuppressing Depositions.

The common order giving leave to examine a party need not be served on the opposite party.

In an examination of witnesses before Commissioners, a party is not bound to give a list of the names of his proposed witnesses to the opposite side.

The Court will not suppress depositions on the ground of irregularity at the instance of a party who knew of the irregularity at the time of the examination, but did not take the objection until long after he had seen the depositions.

In this case William Pincombe, a defendant in the cause, had obtained the usual order for the examination of his co-defendant, Thomas Pincombe, saving just exceptions. The commission for the examination of witnesses on the part of the defendant was taken out on the 8th of June last, and the witnesses were examined on the 7th, 8th, and 9th of August. Publication passed on the 4th of November. The plaintiff did not join in the commission. On the 24th of November the plaintiff gave notice of motion that the depositions of the defendant Thomas Pincombe might be suppressed, on the ground that the order for his examination was not served on the plaintiff; and that the depositions of the other witnesses might also be suppressed on the ground that no notice was given to the plaintiff of the names, &c. of the several witnesses to be examined. From the affidavits it appeared that the country solicitor

Feb. 24.-The LORD CHANCELLOR.The foundation of the Order giving leave to the plaintiff to enter an appearance for a defendant is satisfactory evidence that the subpæna has been “duly" served. In this case no personal service is required,

(1) Ord. Can. 297 ; 14 Law J. Rep. (N.s.) Chanc. 288.

of the plaintiff was seen at the inn where the examination was taking place, and that he knew what was going on.

On the 25th of January 1849 the application was heard by the Vice Chancellor of England, and refused, with costs.

The motion was now renewed, by way of appeal, before the Lord Chancellor.

Mr. J. Parker and Mr. W. H. Terrell, for the motion.— Notice of the names, &c. of the witnesses ought to be given to the opposite party in order to enable him to prepare cross-interrogatories—1 Dan. Chanc. Pract. p. 889; Mulvany v. Dillon (1), 26th Order of October, 1842 (2), 1 Newland's Chanc. Pr. p. 267, edit. 1819. This is required in an examination before the Examiner--- 26th Order of October 1842. The order for the examination of the co-defendant ought also to have been served-1 Dan Chanc. Pr. 853, Taylor v. Harrison (3), Dearman v. Wych (4).

two: first, that the order for leave to examine the co-defendant was not served on the plaintiff; and secondly, that no notice was given to the plaintiff of the names, &c. of the witnesses to be examined on the part of the defendant. The first ground is disposed of by the fact of the alteration of the order by Sir John Leach, and by the established practice in conformity with that alteration. As to the second ground, it is necessary for the party, seeking to suppress depositions on the ground of irregularity, to satisfy the Court that an irregularity has been committed by omitting to give the names of the witnesses; I think the plaintiff has altogether failed in bringing forward any authority to shew that such is the practice of the Court. But independently of this, I think the facts of the case are a sufficient answer to this application. The affidavits shew that the plaintiff's solicitor was at the place where the commission was being executed, that he knew that the examination was going on, and that he conversed with some of the witnesses. He makes no objection at the time, nor until long after publication had passed and he had read the depositions. The motion, therefore, must be refused, with costs.

Mr. Rolt and Mr. Follett, contrà.-The old form of order giving leave to examine a party as witness, contained the words " and hereof give notice forthwith.” Those words were struck out by Sir John Leach, and the words inserted “saving just ex. ceptions"; and such has ever since been the form of the order. There is no general order of the Court requiring notice to be given. As to the second point : the Commissioner was furnished at once with all the interrogatories and cross-interrogatories, so that there was no object to be attained by giving notice of the names of witnesses ; nor is there any rule of the Court requiring such notice. The books only say that it was usual to do so; and then only when the opposite party expressed an intention of attending the execution of the commis, sion. The Court will not suppress the depositions after such delay in bringing the case before the Court.

K. Bruce, V.C.

Feb. 23. DAVIES D. THORNS. Will-Power, Execution of Reference to Subject of Power-Construction-Surviving Brothers and Sisters.

The sum of 1,0001. was given, by will, to trustees, upon trust ( after a life interest given to A.) for such persons as A. should by will appoint. A. made a will, whereby she gave legacies amounting exactly to 1,0001., but did not notice either the power or the property subject to it. A. had no property of her own at the date of her will or at her death :-Held, that Ai's will was not an execution of the power.

A gift, by will, to A. for life, and after her death for her surviving brothers and sis ters. Some of A.'s brothers and sisters had died before the testator, and some died after the death of the testator, in the lifetime of A. : - Held, that the brothers and sisters living at the death of A. were alone entitled.

The LORD CHANCELLOR. The grounds alleged for suppressing the depositions are

.. (1) I Ball & B. 413.

(2) Ord. Can. 216; 12 Law J. Rep. (N.s.) Chanc. 4.

(3) I Myl. & Cr. 274.

(4) 4 Ibid. 550; . c. 9 Law J. Rep. (N.s.) Chàng: 76.

Robert Elliott, by his will, dated the 27th of May 1831, gave and bequeathed 1,0001. to his executors, upon trust, (after a life interest for his wife Elizabeth Elliott) for such person or persons, and in such proportions, as his wife Elizabeth Elliott should, by any deed, or by her last will and testament, nominate and appoint; and, in default of such nomination and appointment, the testator gave and bequeathed the said sum “unto and to be equally divided between and amongst her surviving brothers and sisters.” The tes tator died in July 1831.

Elizabeth Elliott made her will, dated the 1st of November 1833, which, with the additions of a formal commencement and the residences of the legatees, was as follows" First, I give and bequeath to William Tooth, of &c. the sum of 1501. of lawful money of Great Britian, for his whole and sole use and benefit, and to be at his disposal. [These words were repeated after every other legacy.] “Also, I give and bequeath to John Tooth, of &c. the sum of 150l. of lawful money, &c. Also I give and bequeath to Sarah Hunt, of &c. the sum of 1501. of lawful money, &c. Also I give and bequeath to Jane Hewlett, of &c. the sum of 1501, of lawful money, &c. Also I give and bequeath to the children of the late Mary Leedham deceased, who resided at &c. the sum of 1501, of lawful money of Great Britain, the aforesaid sum of 1501, of lawful money to be equally divided amongst such of the children, if more than one, of the said Mary Leedham as shall be alive at the time of my decease in equal portions, share and share alike, for their use and benefit, and to be at his, her or their disposal, if more than one. Also I give and bequeath to Mary Webb, the present wife of Bailey Webb, of &c. the sum of 501. of lawful money, &c. Also I give and bequeath to Mary Boulter, of &c. the sum of 401, of lawful money, &c. Also I give and be queath to Sarah Carter, of &c. the sum of 50l. of lawful money, &c. Also I give and bequeath to Jane Cobbold, of &c. the sum of 501. of lawful money, &c. Also I give and bequeath to Mrs. Allington, of &c. the sum of 50l, of lawful money, &c. Also I give and bequeath to my maid-servant, whomsoever she may be, that is resident

with me in that capacity at the time of my decease, the sum of 10l. of lawful money, &c.; and it is my will and desire, and my meaning is, that all the aforesaid legacies as the same are bequeathed shall be immediately paid and discharged as soon as possible after my decease. Also I give and bequeath to my sister Sarah, who resides in Staffordshire, all my clothes and linen of every description unto me belonging at the time of my decease ; and lastly I do hereby nominate, constitute and appoint Mr. William Boulter the elder and Mr. Bailey Webb executors of this my last will and testament, contained in two sheets of paper, hereby revoking and making void all former and other wills by me made at any time heretofore, and do publish and declare this to be my last will and testament.” Elizabeth Elliott died in 1843.

The legacies given by the will of Elizabeth Elliott amounted exactly to the sum of 1,000l., the sum mentioned in the will of the testator. There were no statements in the pleadings in the cause as to the amount or nature of the property of the testatrix at the date of her will, or at the time of her death; but it was stated at the bar that, with the exception of some wearing apparel, she had no property whatever of her own at either of those times.

One of the questions in the cause was, whether the will of Elizabeth Elliott was an execution of the power given to her by the will of the testator.

Another question arose under these circumstances: Elizabeth Elliott was one of eight children. Two of these children had died in the lifetime of the testator Robert Elliott. At the time of the death of Robert Elliott the five other children, namely, William Tooth, John Tooth, Mrs. Hunt, Mrs. Hewlett, and Mrs. Leedham, all mentioned in the will of Elizabeth Elliott, were living, and were, therefore, her brothers and sisters then surviving. Mrs. Leedham died before the date of the will of Elizabeth Elliott, and William Tooth and John Tooth died between the date of her will and her death; so that at the time of the death of Elizabeth Elliott, Mrs. Hunt and Mrs. Hewlett were her only surviving sisters, and there was no surviving brother. The question then was, whether the expression in the testa

to the death of the testator ; and cited on this point

Holloway v. Holloway, 5 Ves. 399; and
Ware v. Rowland, 2 Phill. 635 ; s. c.

17 Law J. Rep. (n.s.) Chanc. 147.

tor's will, "her surviving brothers and sisters," had reference to the death of the testator or the death of the testatrix.

The bill, which was filed by the representatives of Mrs. Hunt, who was then dead, against the representatives of Mrs. Hewlett, who was also dead, the executors of the testator, and such of the legatees named in Mrs. Elliott's will as survived her, prayed for a declaration that, under the testator's will, the 1,0001. belonged to Mrs. Hunt and Mrs. Hewlett, as the surviving sisters of Mrs. Elliott.

The Master had, on a reference to him, reported as to parties, and that the testatrix had not, in her lifetime, made any appointment; and the cause now came on for further directions.

Mr. Russell and Mr. Bigg, for the plaintiffs, contended that the will of the testatrix did not amount to an execution of the power, and that the representatives of Mrs. Hunt and Mrs. Hewlett were entitled to the fund.

Mr. K. Parker and Mr. Villiers, for some of the appointees under Mrs. Elliott's will.-In this case Mrs. Elliott having a power of appointment over 1,0001., and having no property of her own, gives legacies amounting exactly to 1,000l. These bequests must be taken to have reference to the sum which she was empowered to dispose of. It is impossible to conceive that a person, with such a power and with no property, should make a will disposing of a sum exactly equal in amount to that over which he has a power, without having the power in his mind. The identity of the sum, the subject of the power, with the amount of the bequests given by the will has been, therefore, properly held to have the effect of an express reference to the property-Forbes v. Ball(1), Lownds v. Lownds (2). The previous case of Jones v. Tucker (3) must be considered as overruled by Forbes v. Ball.

KNIGHT BRUCE, V.C.-The question in this case is, whether, according to the correct interpretation to be put upon the language used by the testatrix, she is to be taken to have made a gift of her own property, or a gift out of the property of her husband. It rests with those who contend that the words which the testatrix has used are not to receive their ordinary interpretation, namely, to give her own property,

to demonstrate that this is so the burthen is upon them. This intention cannot be shewn by any reference in the will to the instrument creating the power; for there is none. This intention cannot be shewn by any reference in the will to the property subject to the power ; with this qualification, however, that it is open to the observation, that, if her own property was of inconsiderable amount at the time, (supposing that that circumstance can be looked at) it is in a very high degree improbable that she had, by giving pecuniary legacies, an intention to give anything else than what she was entitled to give under the power, the pecuniary legacies being identical in amount with the fund over which her power extended. The weight of authority and of principle is that the circumstances of the sums given being identical in amount with the fund over which the donee of a power has authority to appoint, and of the donee's own property being insufficient to answer the subjects given by the will, are not enough to raise more than a conjecture, and therefore are not enough to support a judicial determination.

The cases cited at the bar do not negative such a rule. Lownds v. Lownds was a case decided by a Judge whose opinion is entitled to the highest respect and consideration. In that case there was substantially a sufficient reference to the property subject to the power. It was stated there, that in pursuance of certain orders made in the cause, 2,4481. 19s. 3d. consols, 1871. 108. new 41. per cents. and 1451. 178. East India Stock were set apart and in

Mr. Osborne, for the children of Mrs. Leedham, followed on the same side, and also contended that the expression “surviving brothers and sisters” had reference

(1) 3 Mer. 437.
(2) 1 You. & J. 445.
(3) 2 Mer. 533.

W

vested to answer the moiety of the five twentieth parts of 20,0001., and that the divi. dends were ordered to be paid to the donee of the power during his life. Then the will, which was attested according to the power, stated this :-“It is my will and mind that 5001, shall be sold out of the funds as soon as convenient after my decease, and the 2,0001. to remain in the funds during my wife's life, and the interest arising from the same to be equally divided amongst my dear wife, my son William, and my daughter Ann, share and share alike; and it is my will and mind that 1,0001. shall remain in the funds, and my daughter Ann Thornycroft to receive the dividends as they become due on the funds during her natural life, and, at her death, the 1,0001. to be .equally divided among her children, share and share alike, and the other 1,0001. that I have in the funds unto my son William Lownds at my wife's decease." It was asserted by Mr. Warwick, the learned counsel for the defendants," that the only probable question was, whether, with refer ence to the subject of the power, it could by inference, be considered as a due execution;" and then, after referring to Jones v. Tucker, where, he says, an inquiry as to the state of the testatrix's property had been refused, he says that that case was decided in July 1817, while in the following August, the very next month, the same Master of the Rolls, in Forbes v. Ball, had come to the conclusion dia metrically opposite. The learned Chief Baron to whom I have before referred, says, “I do not see how I am to get at the real point in this case, unless I am at liberty to look at what was the intention of the testator, and the state of his property at the time of declaring that intention.” The words in the case of Lownds v. Lownds are not general. The testator says “sold out of the funds;" and then he speaks of “the other 1,000l. that I have in the funds;" and, therefore, as I have said, it was proper to argue, and it was true, that there was substantially a sufficient reference to the fund which was the property subject to the power. In that case also it was said by Mr. Warwick and has been said at the bar, that Jones v. Tucker was opposed to Forbes v. Ball. I think that, in the latter case, it

was not intended that any decision should be given on the point. I think also that the two cases are consistent. In a note to Lownds v. Lownds, I find it thus stated (referring to the case of Forbes v. Ball), "The question as to the state of the property of A. C. at the time of making her will does not seem to have been agitated." The two cases as I have said may be reconciled, for when I refer to the report of Forbes v. Ball I find that it was held that, on the construction of the will of the donor of the power, there was an implied trust for the relations of the donee in default of appointment. When, therefore, it was once decided that there was a trust for the relations in default of appointment, the main question of valid execution or not of the power became unimportant; because the only next-of-kin of the donee was a lady of the name of Ball, and she and her children were the only parties in whose favour the appointment could be made. Thus they stood in the cause opposed by parties who could have no interest in the matter ; for the Court having held that there was a trust for relations, the fund could not fall into the residue, as was contended. The question was not, therefore, I may say adversely conducted; and I cannot attribute to Sir William Grant (who had just before decided Jones v. Tucker (4),) any expression of opinion on a point that was not contested. I must decide that the power of appointment has not been exercised. Such a decision is, I am almost ashamed to say it, against what I firmly and sincerely believe to have been the intention of the testatrix; but I am bound by the authorities, and I cannot help myself.

With reference to the question of survivorship, raised by Mr. Osborne, I think that, both on principle and authority, the true construction of Robert Elliott's will is, that the expression “surviving brothers and sisters" means brothers and sisters living at the death of his widow. It must be declared that the sisters of the wife living at her death are entitled to the 1,000l. as in default of appointment.

(4) Jores v. Tucker was decided on the 30th of July 1817, and Forbes v. Ball on the 11th of August in the same year.

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