was invested. Some correspondence took place, and in a letter of the 11th Dec. the trustees said that at the date of the proof of the will the securities consisted of a variety of foreign railway and Government bonds, and also a considerable quantity of English railway stock; that the net amount of the personal estate was 12,2861. 28. 11d., and that they could not add to these particulars, which they trusted would be considered satisfactory. On the 14th Dec., without any further communication with the trustees, an originating summons was taken out on behalf of the plaintiff against the trustees, asking that they might be ordered to furnish the plaintiff with particulars of the trust estate and the investments, and to pay the costs of the summons. It appeared that the plaintiff had in fact obtained a very small loan on the security of the reversion. Held, that the plaintiff was strictly entitled to the particulars of the investments of the trust estate, and that the trustees must furnish them; but the summons had been taken out with unreasonable haste, and both sides being in the wrong, there would be no order as to the costs, either of the appeal or in the court below, except that the plaintiff's solicitor should be disallowed all costs as against her. (Re Dartnall; Sawyer v. Goddard.)...

...page 404

TRUSTEE ACT 1893. Payment out of court-Petition-Creditor's action -Further consideration.-Upon the further consideration of a creditor's action for inquiries as to incumbrances upon, and for distribution of, funds paid into court under the Trustee Relief Act, an order will be made for payment out of the funds to the persons found entitled thereto, without a petition being presented for that purpose. (Pullen v. Isaacs.)

UNIVERSITIES (SCOTLAND) ACT 1889. Powers of commissioners-Affiliation of collegesProcedure.-An Act of Parliament conferred upon commissioners powers to make ordinances for various purposes connected with Universities, and in particular to extend any of the Universities by affiliating new colleges to them, and provided that all such ordinances should be published, laid before Parliament, and approved by Her Majesty in Council. Another section empowered the commissioners, "without prejudice to any of the powers herein before contained," to affiliate a particular college therein mentioned, but did not prescribe the means whereby such affiliation was to be carried out. Held, that such last-mentioned affiliation must be carried out by an ordinance published, laid before Parlia ment, and approved as directed in the Act, and that an affiliation carried out in any other way was ultra vires and ineffectual. (Metcalfe v. Cox.)

...

VENDOR AND PURCHASER. Agreement for sale by several documents-Memorandum in writing-Parol evidence.-The plaintiff, a purchaser, claimed specific performance, and relied on four letters written by the agent of the vendor to the vendor or his solicitor. Two of the letters were signed by the clerk of the agent, and in the last of the four letters, which was signed by the agent, no reference was made to the letters signed by the clerk. The defendant contended that there was no sufficient memorandum in writing within sect. 4 of the Statute of Frauds. Held, that parol evidence was not admissible to connect the four letters together, so as to form a memorandum of contract. (Potter v. Peters.)

Conditions of sale- Outstanding legal estate Freehold estate assured by form of assurance applicable to copyhold-Voluntary settlementEx post facto consideration-Equitable title an answer to action of ejectment. (Re Williams and Parry's Contract.)...

834

511

624

869

Incumbrances-Discharge of, on sale-Will-Construction-Fature interests.-Upon the sale of certain property a summons was taken out under sect. 5 of the Conveyancing Act 1881 for leave to transfer into court a sum of money in order to make provision for annuities charged upon the property by the will of a deceased testator. Held, that the court could ascertain, upon the construction of the will, what was the amount of the charges upon the property, although it involved a decision dealing with the future interests of infants. (Re Freme's Contract.) ...

...page 486

Plan annexed to particulars-No reference to planNote on plan that accuracy not guaranteed-Plan part of contract. (Re Lindsay and Forder's Contract.)...

Requisition--Gavelkind-Enfeoffment by infant coheir Insufficiency of consideration paid to infant. -R. H. C., who was possessed of real property held by gavelkind tenure, died in Aug. 1892, leaving his widow and three sons, his coheirs in gavelkind. In Nov. 1893 the widow and eldest son, as beneficial owners, conveyed their interest in the property to M. by deed reciting an agreement for sale for 7501., that the two other sons were infants and would convey their shares by customary feoffment on attaining fifteen, and that, of the purchase money, 375l. had been apportioned to the widow and 1251. to the eldest son, iu consideration of which sums the conveyance was expressed to be made. In Dec. 1893 the younger sons, having attained fifteen, assured their shares by feoffment in consideration of 1251. to each. M. having agreed to sell the property, the purchaser refused to accept the vendor's title, on the ground that the widow had received too much of the consideration money, and that the consent of the infants to her receiving it was not binding, they being under age and able to withdraw their consent on attaining majority. Held, that the purchaser's objection was a valid one. (Re Maskell and Goldfinch's Contract.)... Title-Extent of legal estate devised to trustees. (Re Townsend's Contract.)... Unregistered company-Winding-up-Jurisdiction

832

836

321

More than seven members"-Sale by liquidator-Title.-In order to give the court jurisdiction to wind-up an unregistered company, under sect. 199 of the Companies Act 1862, the company must at the date of the presentation of the petition consist of more than seven persons who are actually members. The word "members" in that section is not synonymous with contributories, and does not include persons liable to be put upon the list of contributories as past members, or the legal personal representatives of a deceased member, or a trustee in bankruptcy of a bankrupt member. An unregistered company was ordered to be wound-up, a liquidator was appointed and an order made vesting in him the property of the company. At the date of the presentation of the petition the company consisted of less than seven members. The liquidator entered into a contract for the sale of certain of the company's freeholds, but the purchaser objected to the title on the ground that the number of the members at the date of the presentation of the petition being less than seven, the court had no jurisdiction to make the winding-up order, or the vesting order in pursuance thereof, and consequently that the liquidator could not make a title to the property sold. Held, that the objection must prevail. (Re Bowling and Wilby's Contract.) 18, 411

Vendor and purchaser summons-Condition restricting objection to title-Declaration by Court of Appeal of good title-Action for specific performance-Counter-claim by leave-Discovery of new facts Reasonable diligence Jurisdiction of Chancery Division - Review. - The Court of Appeal, on a vendor and purchaser summons, declared that the vendor, a mortgagee, had shown a good title to certain leasehold hereditaments according to the terms of the contract. One of the conditions of sale restricted the purchaser

to

from making any objection to a part of the title, notwithstanding any recital thereof in the documents of title. The purchaser refused complete, and the vendor then brought this action for specific performance. The purchaser. by leave, counter-claimed by way of review of the order of the Court of Appeal on the ground that since that order he had discovered new matter material to his defence, viz., certain forged documents and also the existence of a will which altered the title of a predecessor of the vendor from that of absolute owner to that of trustee. At the trial it was proved that these new facts were true, and that they were unknown to the vendor or purchaser before the order of the Court of Appeal. Held, that the Chancery Division, exercising the powers of the old Court of Chancery, had jurisdiction to review the order of the Court of Appeal if the discovery could not with reasonable diligence have been made earlier; and that the vendor was not protected Action by the words of the condition of sale. dismissed, and declaration on the counter-claim that the vendor had not shown a good title to ..page 455 the premises. (Scott v. Alvarez.)

VESTING ORDER.

Mortgage-Repayment of debt-No reconveyance—– Surviving mortgagee dead- Uncertainty as to personal representative.-Freehold lands were mortgaged in fee, and subsequently the mortgage debt was paid off out of the proceeds of sale of a portion of the mortgaged lands, but no reconveyance was made of the unsold freeholds. The mortgagees did not enter into the possession or into the receipt of the rents and profits of the mortgaged property, and the survivor of them died, having by his will appointed three persons as executors; but the will was disputed, and was the subject of a pending action in the Probate Division. The mortgagor had contracted to sell the unsold freeholds, but was unable to carry out his contract, because the legal estate in the lands was outstanding. On a petition by the mortgagor for the order under sect. 29, sub-sect. (e.) of the Trustee Act 1893, vesting the lands in him for such estate therein as would be vested in the surviving mortgagee if living: Held, that the case came within sub-sect. (e.) of sect. 29 of the Trustee Act 1893, and a vesting order was made accordingly. (Re Cook's Mortgage.)...

VOLUNTARY SOCIETY. Objects of trusts exhausted-Funds undisposed ofResulting Charity Cy-près Bona vacantia trust. The H. Equitable Annuitant Society was established in 1810 to raise a fund by the contributions of its members to provide annuities for their widows. The last annuitant on the fund died in 1892, and on her death the objects of the society became exhausted under its rules, which contained no provision for the distribution of the remaining funds. In an action brought by the trustees of the society, who disclaimed all interest in the funds, for their distribution, the AttorneyGeneral (who had already failed in the contention that the funds were applicable cy-près, as the society was a public charity) now contended that they belonged to the Crown as bona vacantia. The personal representative of the last surviving member, and a representative of the deceased ordinary members, also claimed the funds. Held, that the funds were subject to a resulting trust in favour of the members of the society from time to time, or their respective legal personal representatives, in shares in proportion to the amounts contributed by each such member, and that there must be a direction for inquiries on the basis of such a declaration. (Cunnack v. Edwards.) ...

386

under orders to proceed to R. The respondent entered into a contract with the appellants in the United Kingdom to purchase a cargo of coal, to The appellants telebe loaded in Australia. graphed to their agents in Australia as to the terms and conditions of the sale, and added instructions as to the destination of the ship. They had no authority from the respondent to give any orders as to the destination. By a mistake of a telegraph clerk, C. was given as the destination instead of R. The appellants' agents in Australia informed the master of the ship that they had instructions to direct him to proceed to C. master hesitated to change his destination, and the appellants' agents then gave him a letter "to confirm our verbal instructions as to your destination"-naming C. as his destination-and, a sufficient "this letter will be continuing, guarantee for your proceeding on your voyage.' Held, that the letter amounted to a warranty upon which the respondent could sue for the damages he had sustained through the ship pro(Brown and ceeding to C. instead of to R. ...page 185, 779 another v. Law.)

The

WEIGHTS AND MEASURES. Coal dealer-Weighing machine-Bye-laws requiring coal dealer to provide-Validity of bye-law.-Sect. 28 of the Weights and Measures Act 1889 gives a local authority power to make bye-laws requiring a weighing instrument to be carried with any vehicle in which coal is carried for sale or delivery to a purchaser. Held, that the local authority has power, under this section, to make a bye-law requiring every coal dealer to provide, and every person employed by him in conveying or carrying coal for sale or delivery to a purchaser from or out of any vehicle to carry therewith, a correct and stamped weighing machine of the form approved by the local authority; and that the validity of this part of the bye-law is not affected by the question of the validity or invalidity of a subsequent part of the same bye-law requiring the coal dealer to re-weigh the coal. (The County Council of Kent, apps., v. Humphrey, resp.)

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Scales Stamping-Used for trade.-A lead manufacturer and smelter had upon her works a beam scale which was used for the purpose of checking the weight of the produce of the works. Invoices bearing the weights so obtained were sent to the purchasers of the lead and the railway company who carried it. The scale was not stamped as required by the Weights and Measures Acts 1878 and 1889. Held, that the scale was used for "trade within the meaning of those Acts and must be stamped. (Crick, app., v. Theobald, resp.)...

WILL.

Annuities-Accumulations-Residue-Gift to charities-Direction to accumulate surplus income-Thellusson Act (39 & 40 Geo. 3, c. 98).-The principle of Saunders v. Vautier (Cr. & Ph. 240), that, where there is an absolute vested interest made payable at a future certain event, with a direction to accumulate the income in the meantime and pay it with the principal, the court will not enforce the trust for accumulation, is applicable to a bequest to a charitable institution as well as to a bequest to an individual. A testator, who died in 1865, bequeathed by his will certain annuities; and directed that in case the income of his trust estate should not be sufficient to pay the whole of the annuities in any year, they should abate rateably; and that the surplus income, if any, should be invested; and after the decease of the last surviving annuitant, that the trustees should convert the trust estate, and stand possessed of the moneys and the accumulations in trust to divide the same among five charitable institutions named "according to the amounts set after their respective names." sum of 100l. was set after the name of each charity. After providing for the annuities there

A

563

808

Codicils-Addition or substitution-Revocation by implication-Probate of will and second codicil only. The testator executed his will in 1871, and afterwards, by a codicil executed in 1891, he changed his executors and made certain alterations in the disposition of some of his property, his wife having, since the date of the will, become insane. In 1893 the testator executed a second codicil, which referred to the will, but not to the first codicil, and which, apart from an alteration (made after engrossment) in the amount of one legacy, really only expressed the legal effect of the first codicil, having regard to the fact that the testator's wife had died since the first codicil was executed. Held, that the second codicil was in substitution for, and not in addition to, the first, and that probate should be granted of the will and second codicil only. (Chichester and another v. Quatrefages and others.)

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475 Construction-Annuity or rentcharge charged on reversionary interest-Direction for payment at the expiration of half a year from testator's decease. (Re Williams; Williams v. Williams.)... 324

Charitable bequest-Perpetuity.-A testator, who declared that his object was to encourage the sport of yacht racing, gave a sum of money to trustees upon trust out of the annual income to purchase annually a cup to be given to the most successful yacht of the season. Held, that the gift, being remotely and not directly beneficial to the community, was not charitable, and was therefore void for perpetuity. (Re Nottage; Jones v. Palmer.)

Charitable legacy charged primarily on personalty Charge on real estate in aid of personalty-Abatement.-A testator bequeathed, among other legacies, a legacy to a charity of an annuity fund, which, according to the right construction of the will, was made up primarily of personalty, and did not consist of personal estate and the proceeds of sale of real estate; the legacies and annuity were only charged on the real estate in aid of the personal estate, and there was no direction for their payment out of the net proceeds of the sale and conversion of his real and personal estate. Held, that the legacy to the charity must abate only in the proportion which the value of the impure personalty bore to that of the pure personalty, and also to the extent to which it was necessary to resort to the proceeds of sale of the real estate in aid of the personalty, for payment of the legacies. (Re Boards; Knight v. Knight.)

795

220 Children-Stepchildren. (Re Jeans; Upton v. 835

Jeans.)

Forfeiture clause-" Be deprived or be liable to be deprived." (Re Loftus-Otway; Otway . Otway.)

Legacy to charity in satisfaction of promise to subscribe-Alteration in scheme-Cy-près. (Re Villiers-Wilkes; Bower Goodman.)...

Precatory trust-"I wish them to bequeath the same -Absolute interest.-A testatrix, who died in May 1857, by her will, dated in June 1856, bequeathed legacies of 20001, apiece to A. and B. for their sole and separate use, with the following declaration: "And I wish them to bequeath the same equally between the families of my nephew and my dear niece in such mode as they shall consider right." The testatrix appointed her heir-at-law her sole executor and residuary legatee. The legacy of 2000l. was paid or accounted for to B., who died in Feb. 1893. An originating summons was taken out by the sur

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viving executor of B. to have it determined (inter alia) whether, upon the true construction of the will of the testatrix, the legacy of 20001. was bequeathed to B. absolutely, or whether the same was subject after her decease to any and what trusts in favour of the families of the testatrix's nephew and niece referred to in the gift. Held, that the true rule to be applied to cases like the present-and a sounder one than was established in Malim v. Keighley (2 Ves. jun. 333, 529 a) was laid down in Re Adams and the Kensington Vestry (51 L. T. Rep. 382; 27 Ch. Div. 394), and adhered to in Re Diggles; Gregory v. Edmonson (59 L. T. Rep. 884; 39 Ch. Div. 253); and that the court would be straining the words of the gift in this case if it were treated as for life only instead of absolute. (Re Hamilton; Re Ashtown; Trench v. Hamilton.) ...page 88, 748 Construction Trust by reference-Multiplication of charges. Where a trust in a will is created by reference to other trusts it is not reasonable to rewrite the words declaring such trust substituting the second fund for the first, where the effect of so doing would be to multiply trusts in the nature of charges on the estate. A testator gave his whole estate to trustees upon trust (1) to pay the income of 20,000l. to his wife for life, and as long as she remained a widow: (2) After her remarriage, to pay the income of 10,000l. to her for life: (3) After her death, to pay the income of the said 20,000l. for the maintenance, education, and advancement of all or any of his children: (4) In the event of his wife marrying again, to apply the interest of the balance of the 20,000l. upon the trusts lastly therein before declared : (5) Subject to the aforesaid trusts, to pay to each of his children who shall attain twenty-one or marry. one-half of the capital sum thereinbefore devised on trust: (6) Out of the residue to pay 10,000l. to his brother: (7) The ultimate residue to be held upon the trust thereinbefore declared with reference to the sum of 20,000. Held that, upon her remarriage, the widow was entitled to no more than the income of the sum of 10,000l., and not to any share of the ultimate residue. (Trew v. Perpetual Trustee Company and others.) Covenant for payment of a debt within three months after death of covenantor Legacy of a larger amount than debt-No date fixed for paymentSatisfaction.-A., by deed, covenanted to pay B., within three months of his decease, 3001. Subsequently, by a codicil to his will, he bequeathed to B. a legacy of 400l., but fixed no date for the payment thereof. Held, that the omission to fix a date for the payment of the legacy took the case out of the general rule, that a debt was satisfied by a legacy of equal, or greater amount, than the debt, and that B.'s debt of 300l. was therefore not satisfied by the legacy of 400l. (Re Horlock; Calham v. Smith.)

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241

223 Devise of real estate-Testator entitled only to share of proceeds of sale-Successive limitations of personal estate - Remoteness-PerpetuityIntermediate income-Woman past age of childbearing. Where a testator shows a clear intention to dispose of particular property to which he is entitled, although he mistakes the nature of his interest in that property, a gift of it as land instead of money arising from its sale does not prevent his interest in it from passing to the person whom he intended shall take what he is himself entitled to. Where there are successive limitations of personal estate in favour of several persons absolutely, the first of them who survives the testator takes absolutely, although he would take nothing if any prior legatee had survived and taken, the effect of the failure of an earlier gift being to accelerate and not to destroy the later gift. In considering whether a gift by will is or is not invalid on the ground that it infringes the rule against perpetuities, the court must go back to the time of the death of the testator, and consider the events which might

then possibly happen; and the gift will fail if in any event which might then happen the subject of the gift might vest in someone who might not come into existence within a life then in being and twenty-one years afterwards. Although, with reference to the rule against perpetuities, the court will regard any living person, however old, as capable of having children (Re Dawson; Johnston v. Hill, 59 L. T. Rep. 725; 39 Ch. Div. 155), yet the court will act on the presumption, amounting almost to a certainty, that a woman well past the age of child-bearing will not have a child. (Re Lowman; Devenish v. Pester.) ...page 816 Division of fund-Per capita or per stirpes.-A testator gave the income of his real and personal property to his wife for life, and after her decease he directed that the proceeds arising from his property should be paid to his brother and sisters yearly, to be equally divided between them (naming them), without the control of their present or future husbands. At the decease of either of his before-named brother or sisters their interest in the property was to be equally divided amongst their children; and after the decease of all he directed the whole of his property to be sold, moneys called in, &c., " and to be equally divided between the children of the aforesaid, share and share alike." Held, that the meaning of the words of the ultimate gift was that the fund should be divided per capita and not per stirpes. (Re Stone; Baker v. Stone.)

66

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Position of signatures-Probate of part of document only. Where a testatrix signed and the witnesses attested her will, the signatures of all three appearing at the foot of a form lithographed on the first page of the document, the Court refused to admit to probate writing appearing on the second and third pages, although written before execution, there being nothing to lead to the inference that they were intended as the commencement of the will, but were merely intended to expand and explain a bequest to my sisters and friends" in the first page of the document. (Royle and others v. Harris and others.) Probate-Action-Motion to dismiss-Full knowledge of former proceedings-Plaintiff not next of kin at date of former action-Subsequent knowledge of alleged legacy in earlier will-Motion refused-Costs reserved.-In 1887 probate was granted in solemn form of a will executed by testator in 1883. The will was at that time opposed by a sister and next of kin of the deceased. Her son had full knowledge of those proceedings, took an active part in instructing the solicitors, and was present in court at the trial. He now, after his mother's death, sought to have the will set aside upon the ground that it was a forgery, and that it had been obtained by fraud, and he desired to establish a will of 1876, which was not forthcoming, but under which he alleged that he would have taken a legacy of an amount which he did not specify. Upon a motion to dismiss the action as being frivolous and vexatious, and an abuse of the process of the court, and also on account of his having been privy to the former proceedings : Held, that, inasmuch as he was not a next of kin of the deceased at the time of the former suit, and could not have intervened therein as next of kin, and, inasmuch as he now swore that at that time he had no knowledge that he was a legatee under the earlier will, the court could not, at this stage, take upon itself the responsibility of shutting out his claim. The Court, therefore, refused the application of the executors, but reserved the question of costs. (Young v. Holloway.)...

Executors-Substitutionary appointment. The testatrix, by her will, appointed as her executors and trustees three persons, C., T., and S., and, if either of these should decline to act, she appointed "in their place B. or F. executors and trustees then to act. After the death of the testatrix, S. renounced probate, and nothing could

815

474

118

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be ascertained as to the whereabouts or existence of F. The Court granted probate of the will to C., T., and B. (In the Goods of Bradford, deceased)... ...page 267 Probate-Ultimate trust in favour of testator's heirs and next of kin-Time for ascertainment of class.The ultimate trusts of a testator's real and personal estate were declared to be in favour of his "own right heirs and next of kin according to the nature of the said property," without any reference to an intestacy or the Statutes of Distributions. The several tenants for life of the property, under prior trusts, were moreover restricted from alienating their respective life interests. Held, that nevertheless the class to take under the ultimate trusts must be ascertained in accordance with the rule established by the House of Lords in Bullock v. Downes (9 H. of L. Cas. 1), viz., as at the death of the testator, and not at the period fixed by the will for distribution. (Re Ford; Patten v. Sparks.) ...

Will in German form German domicile -English assets - German executors Limited grant of probate to them. The testator, a domiciled German subject, died in Germany, leaving a will in German form. In accordance with the laws of that country, and in pursuance of a request in the will, the local German court appointed German executors, who now applied for probate in this country in respect of the English assets of the deceased. The Court made a grant of probate to the German executors, limited to the testator's assets in this country. (In the Goods of Franz Briesemann, deceased.)... Restraint of marriage Bequest for life with remainder to children-Gift over by codicil on marriage or death-Validity-Interest of children. -A testator bequeathed his residuary personal estate upon trust for his daughter for life, with remainder to her children; and in case of her death without issue, he bequeathed the same to certain persons. By a codicil the testator

declared that his will was that his daughter should not marry, and in case of her marriage or death he bequeathed his residuary estate to the same persons as he had bequeathed it by his will. The daughter having survived her father and married, a suit was instituted for the administration of the testator's estate, and it was declared (2 Hare, 570) that the limitation over by the codicil, being in general restraint of marriage, was void as to the life interest of the daughter. She died in 1894 leaving several children. Held, that the interest in remainder bequeathed to the children of the daughter by the will was not revoked by the codicil. (Morley v. Reynold

son.) Reversion Affidavit duty-Legacy duty-Exemption. The executors of B., upon his dying in 1893 without having had issue male, became entitled to the residuary personal estate of A., who died in 1854. Probate duty, under 55 Geo. 3, c. 184, had been paid on the personal estate of A., and legacy duty at the rate of one per cent. on the life interest of B. in the personal estate of A. had also been paid, but legacy duty on the capital of the said personal estate had not been paid, no person being absolutely entitled until the death or B. without having had issue male. Held, that legacy duty at the rate of one per cent. with interest from the death of B. was payable on the value of the personal estate passing under the will of A., and that the case was not within the exemptions contained in sect. 41 of the Customs and Inland Revenue Act 1881. (Kenlis v. Hodgson.)... Specific gift of chattels real to trustees-Infants -Contingent interest- - Intermediate incomeMaintenance.-A contingent specific bequest of chattels real, where the subject-matter of the gift is directed to be set apart from the rest of the estate, carries the intermediate income, which may be applied for or towards the maintenance, education, or benefit of infant benefi

268

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...page 740

ciaries under sect. 43 of the Conveyancing and Law of Property Act 1881. (Re Woodin; Woodin v. Glass.) Trust for sale of business-Power to postponeDiscretion of trustees-Profits until sale-Income or capital.-J. C. devised and bequeathed his two businesses to trustees upon trusts for sale and conversion, the proceeds to be invested and to be held upon trust for his wife for life, and after her death for his children. The testator empowered the trustees to postpone the sale, the income until sale or conversion to be paid to the persons who would be entitled under the will to the proceeds or income thereof if such sale and conversion

had actually taken place. The testator's businesses were carried on for twenty-two years, until the death of his widow, and the profits thereof had been paid to her as annual income. The plaintiff, a grandchild of the testator, entitled to a share of capital, claimed that the businesses ought to have been sold within a reasonable time after the testator's death, and that the profits of the businesses, less 4 per cent. per annum, should be brought into account as part of the capital. Held, that the trustees were justified in carrying on the businesses and paying the whole income to the tenant for life. (Re Crowther; Midgley v. Crowther.)

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