Imatges de pàgina

was sufficient that he was a formal partyLloyd v. Lloyd (2).

Mr. Giffard, for the personal representative of the deceased trustee.

the same to meet the rent then due in respect of such farm and premises; that the trustees at that time conceived them selves entitled to the whole of the live and dead stock upon the farm and other premises in the occupation of the settlor at the date of his death, although the defendant had since been advised that it was at the least very doubtful whether, under the provisions of the indenture of settlement, they, the trustees, were entitled to the whole of such stock and crops, and submitted the same to the judgment of the Court; and also submitted whether his, the defendant's, right to such stock and crops, as trustee of the indenture of settlement, could properly be decided in the absence of the personal representative of the settlor, and whether such representative was or was not a necessary party to the suit.

The plaintiffs then amended their bill, by making the personal representative of the settlor a formal party to the suit, under the 23rd and 24th Orders of August 1841 (1).

WiGRAM, V.C.-The settlor on executing the deed should have delivered over the deed to the trustees, whose duty it would then have been to have secured the property for the plaintiffs, their cestuis que trust. But instead of this the settlor retained possession of the deed and also of the settled property till his death. Had the answer charged the settlor with mixing the trust property with his own, his executor would have been a necessary party. The answer, however, does not make that case; but simply states that the trustees might possibly have possessed themselves of other property of the settlor besides the property comprised in the deed, and submitted that, on that ground alone, the representative of the settlor was a necessary party to the suit. I am of opinion that the objection cannot be sustained. If it could, the settlor or his representative would be a necessary party in every suit against the trustees of a trust deed.

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The Solicitor General and Mr. Freeling, for the defendant, the surviving trustee, objected that the personal representative of the settlor ought to have been made a substantial party to the suit, as he was a party directly interested in the account to be taken of the live and dead stock upon the settlor's farm and premises, of which the trustees had possessed themselves.

Barkley v. Lord Reay, 2 Hare, 306 ;

8. c. 12 Law J. Rep. (n.s.) Chanc.

320. Marke v. Locke, 2 You.&C. C.C. 500;

s. c. 12 Law J. Rep. (N.s.) Chanc.

444. Powell v. Cockerell, 4 Hare, 557; s.c.

15 Law J. Rep. (N.s.) Chanc, 196.

Nov, 23; Y
Dec. 2. S.

Will Act, 1 Vict. c. 26.--Power of Appointment Will to speak from Death of Testator.

T. H. gave and bequeathed the residue of his estate to J. S. and his brother equally between them. J. S. made his will and disposed of all his real and personal property, and all effects due to him from the estate of T. H. amongst his nine children. J. S. subsequently executed a deed of settlement, by which it was agreed that a certain sum should be considered as his share of the property of T. H, and the said properly was conveyed to such uses as J. S. should appoint :-Held, under the Will Act, 1 Vict. c. 26, that the will of J. S. was a good execution of the power limited in the deed of settlement,

Mr. Wood and Mr. Southgate, for the plaintiffs, contended, that as the bill only claimed the property comprised in the deed of assignment, and the answer contained no statement that the settlor had, without the concurrence of the trustees, mixed up the settled property with his own, it was not necessary to make the personal representa. tive of the settlor a substantial party; it

(1) Ord. Can. 171; 10 Law J. Rep. (n.s.) Chanc. 413.

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It appeared from the statements on the deed or will appoint. That the said J. bill and answers in this case, that Thomas Stillman departed this life on the 1st of Hodges died on the 13th of March 1845, January 1848, and his will was duly proved leaving his last will and testament, dated by his executors. the 4th of January 1839, whereby, after The bill was filed by the executors of J. making certain bequests, he gave and be- Stillman and those interested under his queathed the residue of his estate and effects will against the trustees of the settlement. to James Stillman and William Stillman, to Mr. Bethell and Mr. Bunny appeared be equally divided between them, share and for the plaintiffs, and contended that the share alike, and appointed Timothy Weedon will of J. Stillman ought to be taken as an and John Furnell executors thereof. That execution of the special power of appointJames Stillman made his will, dated the ment among the testator's children, con18th of April 1845, and thereby disposed tained in the said deed of settlement; that of all his real and freehold estates, and all by the 24th section of the Will Act, 1 Vict. his personal estate and effects whatsoever c. 26, it was declared that every will should and wheresoever, and all effects due to him be construed to speak and take effect as if from the estate of the late Mr. T. Hodges it had been executed immediately before deceased, to his nine children, to be equally the death of the testator; and by the 27th divided between them; that after the date section of the same act it was provided that and execution of the said will of J. Stillman, a general bequest of personal estate should they, the said J. Stillman and W. Stillman, be construed to include any property over agreed together that certain sums of money, which the testator had a power of appointamounting to 2,8001., which formed part of ment, and should operate as an execution the testator's estate, should be allotted unto of such power; that in the present case the and become the separate and absolute pro testator had by his will expressly mentioned perty of J. Stillman, as part of his share of the property due to him from the estate of the residuary estate of the said T. Hodges, T. Hodges, and evidently intended it should a corresponding amount or share of the pass under the bequest therein contained. residuary estate of the said T. Hodges Mr. K. Parker and Mr. Hughes, for the being at the same time allotted unto the defendants, contended that the disposition said W. Stillman as his separate and abso- in the will of J. Stillman was altered by lute property. That on the 9th of April the subsequent deed of settlement, and the 1846, the said J. Stillman signed and exe- property would consequently pass to those cuted an indenture of settlement, which who were entitled under that deed in default was made between the said J. Stillman of of appointment by J. Stillman, and that the the one part, and the executors of the will Will Act could not be held to apply where of T. Hodges of the other part, and by that the property was not actually in possession indenture it was recited that four several at the time of the will, but had been subsums of money, amounting to 2,8001., were sequently reduced into possession. then due to the estate of T. Hodges, Mr. Rolt and Mr. Shapter appeared for secured upon certain highway rates and some of the parties interested. mortgages; and by the said indenture it was agreed, that the said executors should Dec. 2.- The VICE CHANCELLOR.-The stand possessed of the said several sums of facts in this case are these: in the year 1839 money so secured as aforesaid upon such a person of the name of Hodges made his trusts as the said J. Stillman should by will, by which he gave the residue of his any deed or instrument in writing, appoint; estate to J. Stillman and his brother, in and in default of appointment, upon trust, equal shares; he died in March 1845; and to pay the interest, dividends, and annual on the 18th of April 1845, J. Stillman made produce thereof to the said J. Stillman for his will, and by it he gave and disposed of life, and upon his decease the said trustees all his real and personal estate whatsoever were to stand possessed of the said sums of and wheresoever, and all effects due to him money upon trust, for such of the nine from the estate of T. Hodges, amongst his children of the said J. Stillman, or their nine children, as tenants in common. On children, as the said J. Stillman should by the 6th of April 1846 a certain instrument

the expression, “all effects due to me from the estate of Hodges," these words could have been before the passing of the statute 1 Vict. c. 26, considered as an execution of the power in the deed, provided the will had been executed immediately after the deed; and it appears to me, that though these sums were not strictly due, yet no one could read the will without seeing that this expression describes the very thing made the subject of the deed of settlement, and therefore the children are entitled.

was executed of this kind. It recited the will of Hodges, and that his executors had come to an agreement with Stillman, that two certain sums secured upon rates and three other sums secured upon mortgage, amounting altogether to 2,8001., should be taken as that portion of the personal estate of Hodges to which J. Stillman was enti, tled, and the sums were vested in persons as trustees, on trusts which were described by the instrument, and which were first in trust for such person or persons as the said J. Stillman should by any deed or deeds, &c. appoint, and in default of such appointment, then on trust to pay the rents and profits to J. Stillman for life, and then in trust for his children or their children for such interest or interests, and in such shares and proportions as J. Stillman should from time to time, by any deed or instrument in writing or by his last will and testament thereafter appoint. He shortly after died; and the questionis, whe ther, having regard to the words of the will and the words of the power, the will shall be taken to be an execution of the power. I was struck with the question, and I thought it right to take time to consider it; and my opinion is, that I am bound to hold it an execution of the power, because by the 24th section of the late Will Act it is enacted, that every will shall be construed to take effect as if executed immediately before the death of the testator. This testator died on the 1st of January 1848; and if this will is made to speak as on the 1st of January 1848, what happened? We have a will which, in form, has disposed of all the effects due to the tes. tator from the estate of Hodges; and the 27th section directs, "that any bequest of personal property described in a general manner shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper." The words are, “ which he may have power;' and my opinion is, that these words must be taken in connexion with the former section, which prescribes the time when the will is to speak, and there it is expressly declared, that the will shall speak from the death of the tes tator. Therefore, the only possible question to be determined is, whether, as the testator, on the 1st of January 1848, used


POTHECARY V. POTHECARY. Dec. 8. S" Legacy-Person of Weak IntellectCosts -Executors.

A testator, who died in 1838, left a legacy to a person of weak intellect. At the end of a year after the testator's death the executors invested the amount in the funds, and regularly invested the dividends arising there. from. A suit was instituted by the legatee, by her next friend, against the executors, in which the amount of legacy with 41. per cent. from a year after the testator's death and the costs of the suit were claimed:Held, that the executors were not bound to pay the legacy and interest; and it was ordered that the stock should be transferred into court, and that the costs of the suit should be paid out of the testator's general estate,

Isaac Pothecary, by his will, dated the 7th of September 1836, and a codicil, dated the 28th of February 1838, left two sums to be divided between the children of Matthew Pothecary; and died in March 1838.

Caroline Amelia Pothecary, one of these children, had been a person of weak intellect from her birth.

The executors of the testator, at the end of a year from his death, invested the sum of 4461. 13s. 4d., the share of Caroline Amelia Pothecary, in the 31. per cent. consols, and regularly invested the divi. dends, and, at the time of the filing of the bill, a sum, made up of the original investment and the accumulations, was standing in their names. After the Trustee Act (10 & 11 Vict. c. 96.) was passed, an application

now, and therefore must have been so at the date of the will. I think that, in a case so circumstanced, without blaming the executors for what they have done or abstained from doing, the costs ought to come out of the testator's estate. Let the fund be transferred to the account of the legatee, and all the costs be paid out of the estate.

was made to them, on behalf of Caroline Amelia Pothecary, to pay the sum due from them, in respect of the legacy, into court, under that act, which they declined to do.

A bill was now filed against the executors by Caroline Amelia Pothecary, by her next friend, for the payment of the legacy.

Mr. Beavan, for the plaintiff, contended, that the executors were bound to pay, in respect of the legacy, the sum of 4661. 13s. 4d., with interest at 4l. per cent. from the end of a year after the testator's death, and the costs of the suit-Rimell v. Simpson, before the Vice Chancellor of England (1); and that, if they were not to pay the costs, the costs ought to be paid out of the testator's general estate, and not out of the legacy. On this point he cited

Beames on Costs, 2nd edit. 7.
2 Daniell's Chanc. Prac. 2nd edit. 1301.
Anon. Mos. 5.
Whopham v. Wingfield, 4 Ves. 630.
Barton v. Cooke, 5 Ibid. 461.
Wilson v. Brownsmith, 9 Ibid. 180.
Ex parte Cobb, 4 Law J. Rep. (n.s.)

Chanc. 271. [KNIGHT BRUCE, V.C.-The case before Sir Lancelot Shadwell was that of an infant, and therefore within the Legacy Act; the case before the Court is that of a person, who was of weak intellect at the date of the will, and at the time of the testator's death, and who is still so.]

Mr. Russell and Mr. W. H. Townsend, for two of the executors, contended, that the executors had acted properly in investing the sum in the funds; that they were not bound to pay the legacy and interest, and that the costs of the suit ought to be paid out of the legacy.

Mr. Knox, for the other executor.

V.C. | Ex parte THE NEWPORT MARSH Nov. 6. )

TRUSTEES. Statute, Construction ofTrustees constituted a Body Corporate.

A question was raised in this case upon petition whether certain trustees appointed under an act of parliament for inclosing a piece of land were to execute conveyances in their own names, or as a corporate body. - The Court held, that although the act did not expressly constitute them a corporation, yet as the trusts to be executed were to continue for an unlimited time, the trustees must, by the very constitution of the body and the powers given them, be taken to be a corporation.

This was a petition by nine of the trustees appointed under an act passed in the 4 Geo. 3. for dividing and inclosing a piece of waste ground called “ The Marsh,” in the parish of Newport, praying that a sum of 6001., paid into court under the Lands Clauses Consolidation Act (1), by the Shropshire Union Railway and Canal Company, for the purchase of a portion of the said marsh, might be paid out to the petitioners. A question was raised under the inclosure act as to whether the marsh land was vested in the trustees in such a manner that they might execute conveyances thereof in their own names, or whether such trustees were constituted a corporation under the act, in which case it would be necessary for them to convey in their corporate capacity.

Mr. Malins and Mr. Little appeared upon the petition.

Knight BRUCE, V.C.-My impression of this case, which is not one of infancy, or of a legatee out of the jurisdiction, but one of imbecility of an adult legatee, is, that the executors having, as is admitted, in proper time, honestly appropriated and set apart the legacy, and invested it, and accumulated the dividends since the appropriation, such a state of things ought not to be disturbed.

It is admitted that this legatee has been in this state of mind from her birth until

(1) Vide post, p. 55. NEW SERIES, XVIII.-CHANC.

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with my opinion, and wish to go to a court of law, they may do so.


Nov. 25.

Infant -- Guardian ad litem - Commission.

A motion to appoint a guardian ad litem to two infant defendants resident within the jurisdiction, without their appearance or a commission, refused.

which was created by the act of parliament is à corporation. Now I cannot but think that by the nature of the words of this act of parliament it was intended that the persons named should be a body to continue for ever, and that they should have for ever the land and marsh in question. The frame of the act is this :-that, first of all, the Earl of Shrewsbury, and his heirs, and Lord Gower and his heirs, and then some persons who are named, and their heirs, and then a variety of other persons who are named, and then the schoolmaster for the time being, and the resident burgesses for the time being, and then all the persons that should at any time thereafter be burgesses, and their heirs, during the time of their residence in the borough, were to be trustees for inclosing, improving, and dividing the said marsh and for putting the act into execution. Now the putting the act into effect was a thing which, of necessity, would continue without limit; there was no period of time when the act might not be capable of being put into operation, and though there are particular modes pointed out in the statute, by means of which some of the body might act, yet it is stated what they were to do; they were to make leases and mortgages; and, consequently, therefore, whatever might be the intention of the legislature, yet if I find the fact to be that the necessary construction of the act of parliament is this, that the persons named were to hold for ever certain lands, and for ever to deal with them, it appears to me that they necessarily became a corporation, although the words “ being a corporation" are not used in the act. It is said in Co. Litt. p. 250, a, respecting a corporation, “This is a body to take in succession, framed (as to that capacity) by policy, and thereupon it is called here by Littleton a body politic; and it is also called a corporation or a body incorporate, because the persons are made into a body, and are of capacity to take." In this case, there is a limited mode of carrying out the act expressly appointed by it, that is, by leasing and mortgaging; and it appears to me, therefore, although there are not the words found as to taking in succession, yet by the very constitution of the body itself, and by the powers given to it by the act, it must be taken to be a corpo. ration ; but if the parties are dissatisfied

Mr. Frith applied for an order for the appointment of a guardian ad litem to two infant defendants, without their personal appearance, or a commission. Both infants were resident within the jurisdiction, the one at Brighton and the other in Derbyshire.

The following cases were cited :-*
Shuttleworth v. Shuttleworth, 2 Hare,

Drant v. Vause, 2 You. & Coll. C.C.

524; 8. c. 12 Law J. Rep. (n.s.)

Chanc, 439.
Nixon v. Few, 7 Beav. 349.
Stillwell v. Blair, 13 Sim. 399.

WIGRAM, V.C. refused the motion.


EMERSON V. EMERSON. Nov. 11, 25. s

Bill - Motion to dismiss, pending an Order to amend made at the Hearing.

Where a cause has stood over at the hearing, with liberty to the plaintiff to amend, and the plaintiff has failed to amend, the proper course is to move upon notice, that the plaintiff amend within a time stated or the bill be dismissed. During the pendency of an order to amend, the common order to dismiss for want of prosecution would be irregular.

The bill in this cause was filed on the 10th of January 1845, and the last of the answers was put in on the 10th of April following.

A t the hearing, on the 30th of November 1846, the cause was ordered to stand over, with liberty to amend by adding parties.

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