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WIGRAM, V.C. March 28.

Traversing Note-Substituted ServiceDefendant out of Jurisdiction.

Where a defendant who had been personally served with subpoena to appear and answer, had taken no step in the suit except serving the plaintiff with a notice of intention to change his solicitors, and the latter had some correspondence with the solicitors of the plaintiff on the proceedings, but refused to give the address of the defendant or accept service for him, the Court gave leave to serve a copy of a traversing note upon such new solicitors.

This was a motion for leave to serve a copy of a traversing note on the new solicitors of a defendant under the following circumstances:-The defendant had been a co-plaintiff in the original suit with Ann Wallis. The suit having abated, the latter filed a bill of revivor and supplement, to which her co-plaintiff in the original suit was made a defendant. He had been personally served with subpoena, but the plaintiff had filed a traversing note against him, and obtained leave to serve him personally with a copy of it. The defendant afterwards served the plaintiff with an order for changing his solicitor. This order was headed in all the causes. Some correspondence took place between the plaintiff's solicitors, and the defendant's new solicitors; but the latter refused to furnish the former with the address of the defendant, or to accept service of the traversing note.

Mr. Moxon, for the motion, said that the case of Norton v. Hepworth (1) was precisely in point. He also cited

Murray v. Vipart, 1 Ph. 521; s. c. 14
Law J. Rep. (N.s.) Chanc. 217.
Moss v. Buckley, 2 Ph. 628; s. c. 17
Law J. Rep. (N.s.) Chanc. 414.
Laurie v. Burn, 6 Hare, 308; s. c. 17
Law J. Rep. (N.s.) Chanc. 384.

March 20.-WIGRAM, V.C. said that under the circumstances he would make the order.

(1) 1 Hall & Twells, 158, and 1 Mac. & Gor. 54; s. c. ante, p. 172.

MARRIAGE . THE ROYAL
EXCHANGE ASSURANCE
COMPANY.

Payment into Court-Fund-Creditor's Suit.

Unless all persons interested in a fund are before the Court, an order for payment of it into Court will not be made on an undertaking by the plaintiff to make them parties, except perhaps in cases of administration or creditors' suits. Whether such an order would be made in those suits-quære.

The plaintiff in this suit was equitable mortgagee of certain leasehold premises, in the occupation of a defendant named Webster, and also held a bill of sale of the goods and chattels therein for securing the repayment of monies due from the latter. Webster had insured the goods against loss by fire for the sum of 2007., in the office of the Royal Exchange Assurance Company; and they were subsequently burnt. present bill was filed for the purpose, amongst others, of restraining the payment of the amount of the insurance to Webster. Shortly after the filing of the bill, Webster became bankrupt, and his assignees had not yet been made parties to the suit.

The

Mr. W. Morris, for the plaintiff, moved, on the authority of Whitmarsh v. Robertson (1), for payment of the 2007. into Court, and offered to give an undertaking to make the assignees parties by supplemental bill.

Mr. J. H. Palmer, for the company, said they were ready to pay in the money if the Court, under the circumstances, should think proper to direct them.

WIGRAM, V.C. said he might not perhaps object to make such an order as that now asked, in the cases of administration or creditors' suits; but where the claim to the fund was in dispute, it was necessary that all parties should be served with notice of motion before an order was made for the payment of it into Court.

Motion refused.

(1) 4 Beav. 26.

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The will in this case and the decision of the Vice Chancellor of England are reported in 16 Law J. Rep. (N.S.) Chanc. 425. The case was now brought before the Lord Chancellor by way of appeal from his Honour's judgment.

Mr. Stuart, Mr. Bethell, Mr. G. L. Russell, and Mr. Sandys appeared for the different parties.

Jan. 31, 1849.-The LORD CHancellor. -This case, although not now of general importance owing to the alteration of the rule of equity by the 1 Will. 4. c. 40, is yet one of some interest, calling, as it is alleged, for a decision between the conflicting opinions of Lord Eldon and Sir William Grant, as expressed in the case of Dawson v. Clark (1). The Vice Chancellor appears to have thought there was not any such conflict, considering the case before Sir William Grant as a decision on the point, and that before Lord Eldon as only suggesting a doubt. I take a very different view of these two reports.

Two questions arose in that case: first, whether the persons appointed executors took the property beneficially by the gift itself, subject to certain charges; and if not, secondly, whether they took it in their character of executors. If their claim was good under the first the second would not arise. Sir William Grant, passing over the first question, decided in favour of the claim upon the second; but Lord Eldon thinking

(1) 15 Ves. 409, and 18 Ves. 247. NEW SERIES, XVIII.-CHANC.

the title good under the gift, affirmed the decree upon that ground, very distinctly repudiating the ground on which Sir William Grant had founded his decree. Now, if Lord Eldon was right upon his construction of the gift, the claim on the ground of executorship could not arise, and Sir William Grant's opinion was on a point not in question in the cause. This would not be very material, except as bearing on the observations of the Vice Chancellor in this case, because there is the deliberate opinion of Sir William Grant on one side, and the no less deliberate opinion of Lord Eldon on the other.

It therefore becomes necessary to examine the principle and grounds on which those opinions are respectively founded. It must be borne in mind that the title of an executor to personalty not otherwise disposed of did not arise from any gift of the testator, but from an operation of law incident to the office. The will vested the property in the executor, and if the testator had not directly or indirectly declared any purpose to which he was to apply it there was nothing to interfere with the legal title of the executor, and he therefore retains such property for his own benefit; but this result, as was supposed, being generally unforeseen and not intended by the testator, equity considered many circumstances as indicative of an intention contrary to the claim, and when they were found in the case declared the executor trustee for the next-of-kin, and among these was any expression shewing that the executor was intended to hold the property upon trust, and where such intention sufficiently appeared there could not be a more conclusive reason against the claim of the executor whose title depending on there being no trust was necessarily negatived by the testator's declaration that there should be a trust.

It is now all but a century since Lord Hardwicke, in The Bishop of Cloyne v. Young (2), treated this as a settled rule. The principle on which it is founded is so satisfactory, that if kept in mind it must have excluded some nice distinctions which appeared to me to be inconsistent with it. The executor claimed the property as in

(2) 2 Ves. sen. 96.

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cident to the office, and as vested in him by virtue of it in the absence of any intention to the contrary expressed by the testator. But if the testator gave this same property to the same executor, or to any other person in trust, that is, for some purpose which is immaterial other than the beneficial enjoyment by the executor, he thereby shews an intention inconsistent with this incident to the office, and by so doing destroys it. The executor in such a case takes nothing but what is essential for the performance of the duties of his office of executor. No beneficial interest in the property can vest in him as incident to it, for none remains that can so vest, the other provisions of the will having otherwise disposed of it.

These principles would appear to be applicable to all cases in which the property claimed as incident to the office appears by the will not to be incident to it but to be severed from it in enjoyment, although for other purposes vested in the

executor.

The rule as expressed by Lord Eldon in Paice v. the Archbishop of Canterbury (3) embraces the principle. For Lord Eldon says, "If, as in the case in Vesey, the testator declares that he gives it in trust, and then does not declare the trust, or, as in Morice v. the Bishop of Durham (4), the trust declared fails, the executors, being clearly intended not to have the benefit, must be trustees for the next-of-kin."

Sir William Grant's opinion in Dawson v. Clark, and the Vice Chancellor's opinion in the present case, do not question the rule that a gift to an executor as such in trust excludes him from any beneficial interest, and if the property had been left to third persons in trust for purposes which failed, no case would be made for the executor. But it is contended that if the property instead of being left to an executor in trust, or to a third person in trust, be left to the executors, not as such but in their own names, upon trusts which fail and do not exhaust the property, those trustees in their character of executors are entitled to the residue as incident to their office. I cannot see any principle for this dis

(3) 14 Ves. 370.

(4) 9 Ves. 399; s. c. 10 Ves. 522.

It

tinction. If the office and private character of the person appointed executor are to be considered as distinct, it would seem to be immaterial, whether the trustees are the same persons who are named executors or strangers; and if the two characters are to be considered as united, the case of a gift to an executor in trust is complete. It seems to be admitted, in Robinson v. Taylor (5), that Robinson v. Taylor negatived the supposed distinction, unless a gift in trust to the executors hereinafter named is so different from a gift to a person by name, who is afterwards appointed executor, as to operate as a transfer of the residue from the next-of-kin to the executor. would be to be regretted if the title to property was to depend on such unsubstantial distinctions. The difference is merely in the mode of expression for the purpose of pointing out the same individual; but unless this distinction can be maintained, it would seem that Robinson v. Taylor ought to have governed the decision in Dawson v. Clark. Sir William Grant, however, in that case mentioned the distinction, and in effect held that although a gift in trust to my executor A. B, would entitle the next-of-kin, a gift in trust to A. B. after he was appointed executor would entitle the executor to the residue.

No case appears to have been referred to, and no earlier case has been produced sanctioning such a distinction. When this case of Dawson v. Clark came before Lord Eldon, on appeal, he decided it upon a point that does not arise in the present case; but he most distinctly expressed his opinion that the distinction relied upon between that case and Robinson v. Taylor could not be maintained, and shewed clearly he would not have affirmed the decree on the ground on which Sir William Grant decided it.

It is true, that in Southouse v. Bate (6) Sir William Grant seemed disposed to think those grounds satisfactory. No one can be more inclined than I am to pay every deference to the opinion and judgment of that most eminent Judge, but I cannot adopt the grounds on which he

(5) 2 Bro. C.C. 589. (6) 2 Ves. & B. 396.

acted in that case. The view taken by Lord Eldon appears to me to be perfectly correct, and to be founded on the true principles which have regulated the decisions on this subject.

Having, therefore, the case of Robinson v. Taylor, and the high authority of Lord Eldon, and fully concurring in all he is reported in Dawson v. Clark to have said on the subject, I am bound in applying myself to the case now under appeal to consider that doctrine so laid down by Lord Eldon as my rule and guide, and that disposes of the present case, for it cannot be distinguished from Dawson v. Clark as to the first point to which I have adverted.

There is, first, a gift of all the real and personal estate to "Edward Ellcock, his executors, administrators or assigns to and for the several uses, intents and purposes following."-Then come several directions as to parts of such property, in each of which it is described as held upon trust, and the will concludes with these words: "Lastly, I nominate, constitute and appoint the aforesaid Edward Ellcock executor of this my last will and testament." This is clearly a gift of the whole property in trust, though the trusts declared do not exhaust the whole.

But

In argument, the difficulty of contending for a beneficial interest in the executor, under such circumstances, seems to have been attempted to be met by considering the appointment of executor as in the nature of a gift of so much of the property as had not been before disposed of. that cannot be. The last clause appointing his executor does not give any property. If any interest accrues to the executor, it is not by way of gift, but as incident to his office. If the appointment were equivalent to the gift of the residue, how could the gift of a money legacy deprive the executor of it? Again, the whole property having been before given, this appointment, if equivalent to any gift of property, could only operate as a beneficial interest; but the title of an executor to a beneficial interest arises from the legal title vested in his office, and cannot consist of an equitable interest to be satisfied out of a legal title vested otherwise than in the office.

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Will-Bequest, whether absolute or for life-Marriage Articles-Reduction into Possession-Chose in Action.

A testator gave and bequeathed all his personal estate and effects to his daughter, the same to be always considered as vested in her, upon her attaining twenty-one, and to be subject to her disposition thereof; and the testator further directed that in case his daughter should happen to depart this life without attaining twenty-one, or without disposing by her will of the property bequeathed to her, then the same to be subject to the disposition by will of his wife. The testator's daughter married under twenty-one, and by articles previously to her marriage the husband covenanted to settle all the property left her by the testator upon his wife and himself for life, and then for the benefit of the children of the marriage:-Held, that the daughter took the property not absolutely but for life only, with power to dispose of it by will, and that her husband not having reduced it into possession, the articles were not binding upon the wife.

This suit was instituted for the purpose of obtaining the decision of the Court upon the construction of the will of John Repton, dated the 27th of May 1839, by which the testator appointed the defendants his executors. The testator thereby authorized and directed his executors or the survivor of them, or the executors or administrators of such survivor, as soon after his decease as they should think fit to sell and dispose of, either by public auction or private contract, all and every his messuages, lands, hereditaments and real estate, whether freehold or copyhold or any other tenure, and to receive the rents thereof until the same should be sold, and the money arising from such sale and from the rents thereof in the mean time, to be added to and considered as part of his personal estate, and to be subject to the

disposition thereafter made. The testator then directed his executors to carry on and manage the farm which was in his occupation, and to pay and apply the profits thereof towards the support of his wife, and the maintenance and education of his daughter Elizabeth until she should attain the age of twenty-one, and the residue of such yearly profits to be added to his personal estate; and he directed his executors to invest the residue of such profits, and the money to be derived from the sale of his real estate, and all sums of money due to him, in real or Government securities, and to pay his daughter upon her attaining the age of twenty-one, the sum of 2,000l. for her own use and disposal; and the testator then directed as follows:-" And my will also is, that when my daughter shall attain her age of twenty-one years then that my said executors or the survivor, his executors or administrators, shall pay all the clear dividends, interest and produce of my said personal estate and effects as and when the same shall accrue due unto my wife during her life, she keeping herself single and unmarried during the life of my daughter; and from and after the decease of my wife or her intermarriage in the lifetime of my daughter, which shall first happen, then I give and bequeath all and every my said personal estate and effects unto my said daughter, the same to be always considered as vested in her upon her attaining her said age of twenty-one years, and to be subject to her disposition thereof." The testator then revoked the interest given to his widow if she should marry again, and in lieu thereof gave her an annuity of 50%., and declared that in case his daughter should die without attaining twenty-one, or without disposing by her will of the property devised to her, the same should be subject to the disposition by will of his wife whether she should be married or sole; such disposition however to be confined to the brother or sister of the testator, or his nephews and nieces or their children, in such shares as she should think fit, and in default of such disposition, the testator gave his said personal estate and effects equally amongst such of his brothers and sisters and nephews and nieces as

should be living at her death, and the issue of such as should be dead.

Upon the death of the testator in 1809, his wife and daughter were living, and in June 1822, his daughter, then an infant, married the defendant J. H. Borton; and by articles made previously to their marriage a covenant was entered into by the intended husband, that upon his wife attaining twenty-one a settlement should be made of the sum of 1,000l., part of the before-mentioned legacy of 2,000l., and also of all other sums of money which she would become entitled to under her father's will.

No settlement having been executed in pursuance of the marriage articles, a bill was filed by Mrs. Borton (who was living apart from her husband) by her next friend against the trustees of her father's will and the trustees named in the articles made previously to her marriage, praying that her rights under the testator's will might be declared. Before that suit came to a hearing, the widow of the testator died, without having executed the power of appointment given her by the testator. Upon the death of his daughter without appointment the present suit was then instituted on behalf of the children of Mr. and Mrs. Borton, praying a declaration that their father and mother in right of the father had become entitled to the whole of the testator's residuary personal estate and the monies produced by the sale of the real estate, subject to the trusts of the marriage articles, which were for the separate use of Mrs. Borton during the lives of herself and husband, and then to the survivor for life, and after the death of the survivor, then for the children of the marriage in manner therein provided; and it also prayed a direction from the Court that the property agreed to be comprised in the settlement might be reduced into possession by the husband, and that the rights of all parties might be ascertained, and a settlement executed for the purpose of carrying the articles into execution.

The cause now came on for hearing.

Mr. Stuart and Mr. Craig, for the plaintiffs, the children of the marriage between Mr. and Mrs. Borton, and

Mr. Rolt and Mr. Bromley, for Mr. Borton,

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