the class on her and her children-Death before period of distribution. THE COURT (Collins M.R., and Stirling and Cozens-Hardy L.JJ.) allowed the appeal. STIRLING L.J., who read the judgment of the Court, said that In re Roberts was binding on this Court, and their Lordships saw no reason to doubt that the other two cases were well decided. But in all those three cases the wills which had to be construed differed substantially from the will in the present case. The only rule or principle which their Lordships could find to have been laid down in those cases was this that the words "the share" were susceptible of more than one meaning, and that, in ascertaining the sense in which they were used, the whole will must be regarded. Looking at the whole will in the present case, their Lordships came to the conclusion that by "the share" of Charlotte the testatrix did not mean the share to which Charlotte would be entitled if she survived the period of distribution, but meant an aliquot share of the estate destined for Charlotte and her children. The other construction would involve this capricious and anomalous result—that, if Charlotte had died before the period of distribution, leaving four children, who all attained twenty-one and survived that period, none of them would have taken anything, though they were primary objects of the bounty of the testatrix. In their Lordships' opinion, such a result could not have been intended. The question was one of difficulty, and their Lordships regretted that they had to differ from so accurate and careful a judge. But, on the best construction they could give to the case, they thought the appeal should be allowed. Solicitors: Upton, Atkey & Co.; Hon. Charles Russell; Walters & Co. W. L. C. Appeal from the decision of Byrne J., [1901] W. N. 146. Maria Whitmore, a spinster, who died in 1854, by her will, made in 1849, directed the income of her residuary estate to be paid to her sisters, Sophia and Catherine Whitmore, in equal shares during their joint lives, or until one of them should marry or die, and after the death or marriage of either, then to the other during her life or until she should marry, and after the death or marriage of such surviving or last marrying sister the testatrix declared trusts of a sum of 1000?, for her sister Elizabeth Saltmarshe and a niece, and, subject to these provisions, the testatrix directed that her residuary estate should be held in trust for all or such one or more of her brothers and sisters (except Elizabeth, but including Sophia and Catherine, if they or either of them should marry) who should be living at the death or marriage of such surviving or last marrying sister, in equal shares, if more than one, as tenants in common. Provided that if at the death or marriage of such her surviving or last marrying sister, her brothers, or any or either of them, should be dead, or either of her sisters Sophia and Catherine should be dead having previously married, and there should be living any child or children of any one or more of them so dying, who should then have attained or should afterwards attain the age of twenty-one, or who should then have married or should afterwards marry, such child or children should together and per stirpes be entitled to such part or share of the trust estate as his, her, or their parent or respective parents would have been entitled to if such parent or parents had been then living. And with respect to "the share" of her sister Charlotte Harrison, the testatrix directed that "the same share" should be held in trust to pay the income thereof to her during her life, for her separate use, and after her death the capital of" the same share" should be held in trust for her child or children, as she should by deed or will appoint, and, in default of appointment, in trust for and to vest in her child or all her children, if more than one, being sons at twenty-one, and being daughters at twenty-one or marriage, and if more than Kekewich J. one in equal shares. High Court of Justice. CHANCERY DIVISION. April 29; May 13. NIGHTINGALE v. REYNOLDS. At the date of the will the testatrix had living three brothers Mortgage-Portion-Priority-Mortgage by direction of Court to and four sisters, two of whom, Sophia and Catherine, were unmarried, and the other two, Elizabeth and Charlotte, were married. Sophia and Catherine never married. Catherine died in 1900, having survived all her brothers and sisters. Charlotte Harrison died in 1884. She had four children, all of whom attained twenty-one, but they all died before Catherine. Neither the brothers nor the other married sister of the testatrix left issue. Byrne J. held that, as Charlotte did not survive the period of distribution, she did not take any share in the fund, and that therefore her children and their representatives could take nothing. In so deciding his Lordship followed In re Roberts, (1885) 30 Ch. D. 234, and distinguished In re Pinhorne, [1894] 2 Ch. 276, and In re Powell, [1900] 2 Ch. 525. The representatives of Charlotte's deceased children appealed. P. M. Walters, for the trustees. raise two out of three portions charged on real estate. A testator, who died in 1851, by his will charged three sums of 50001. for children's portions on his real estate. In the year 1880 two of the portions had become raisable, but the tenant for life of the third portion was still alive. In that year an action of Muskett v. Muskett, properly constituted, was brought for the purpose of clearing the real estate from charges, and on the 17th of May, 1882, an order was made directing that the two portions then raisable should be raised by a mortgage of the real estate to a person who was willing to lend the money, such mortgage to be settled by the judge. The mortgage deed as so settled contained recitals of the title to the portions, and of the proceedings in the action, and was expressed to be made as to all the hereditaments comprised therein "without prejudice to any charge which may be subsisting therein under the said will," but was in other respects in the ordinary form of a mortgage in fee. The mortgagee duly paid the money into court, and it was afterwards distributed among the persons interested in the two portions. The mortgagee now brought the present action for the realiza- | that the property found on the bankrupts at the date of their tion of his mortgage, and claiming priority over the persons arrest had vested in him as trustee in bankruptcy, and now interested in the remaining portion of 50007. asked that the commissioner of police should be ordered to hand it over to him. P. O. Lawrence, K.C., and J. K. Young, for the plaintiff. Warrington, K.C., and Tyssen, for the persons interested in the remaining portion. D. Jones and Peck, for other parties. Cur, adv. vult. May 13. KEKEWICH J. held that the plaintiff could only claim a charge on the real estate for the two sums of 50001. pari passu with the third sum of like amount, and this notwithstanding that this third sum was at present only charged in equity by virtue of the will, whereas the plaintiff had a legal mortgage sanctioned by the Court. With the aid of subsequently acquired knowledge it might be said that it would have been better to raise all the portions at one and the same time; but this was quite a different thing from saying that the Court, in fulfilling the testator's directions, which was its only duty, intended to place two of the portions in a better position than the third, or to give the mortgagee a charge for the two in priority to the third, which was from the first equally entitled to a like charge under the will. Solicitors: Pasco Daphne; J. M. Yetts; Grundy, Izod & Co.; Iliffe, Henley & Sweet. C. C. M. D. Muir Mackenzie, for Salaman. Sutton, for the commissioner of police. The usual practice when a prisoner is extradited is for the police to hand over the property found on him to be used as evidence of the crime at the trial: Dillon v. O'Brien, (1887) 16 Cox, 245. Edwardes Jones, for the Belgian curator. WRIGHT J. held that "the competent authority" in the first instance was the police magistrate who made the extradition matter. Application should be made to them, and some stipuorder, and that the Home Secretary had also authority in the lation should be made as part of the order surrendering the prisoners to the Belgian authorities for the return of the proties here for the trustee in bankruptcy. This would be without perty, after the trial in Belgium was concluded, to the authoriprejudice to the rights of the Belgian creditors to prove in the English bankruptcy. Solicitors: Osborn & Osborn; Wontner & Sons; Crawley, Arnold & Co. H. L. F. The debtor Borovsky was a Russian subject domiciled in England, and the debtor Weinbaum was a naturalized British subject. They traded in partnership as dealers in precious stones under the style of "Borovsky & Weinbaum" in London, and at Antwerp in Belgium. On the 10th of March, 1902, they were arrested in London on an extradition warrant granted at the instance of the Belgian Government for offences committed in Belgium, and at the date of their arrest property, consisting of bills of exchange, precious stones, and some cash, was found upon them and retained by the police. Article 12 of the Extradition Treaty with Belgium provides that all property belonging to the prisoner and found upon him upon his arrest, shall be returned to him should he be ordered to be extradited, unless otherwise ordered by "the competent authority." On the 14th of March a receiving order was made against the debtors in England and adjudication followed, and Salaman became the trustee in bankruptcy. On the 19th of March the debtors were adjudicated bankrupt in Belgium and a curator of their estate was appointed. On the 19th of April the police magistrate at Bow Street made an order for the extradition of the bankrupts, but declined to give any direction as to property found on them, on the ground that he was not "the com Administration-Breach of trust-Trust money in hands of solicitor with notice—Solicitor not a party to the action—Order on solicitor to pay money into court-Jurisdiction-Practice. This was an action commenced by originating summons to administer the estate of Elizabeth Carroll, who died in 1894. The plaintiffs were beneficiaries under the will of Elizabeth Carroll, and the defendant was the sole executor. From the accounts carried in by the defendant it appeared that he had received two sums of 225l. 12s. 6d., which he was ordered to pay into court. On motion for a writ of attachment against him for non-compliance with the order, it appeared that he was a clerk in the employment of a Mr. McIntosh, a solicitor, who was acting as his solicitor in the action; that he had lent the money in 1895 to Mr. McIntosh at 4 per cent. interest without security, who accepted the loan knowing it to be trust money; and that last August he had given Mr. McIntosh notice calling in the money, but it was not forthcoming. Thereupon the plaintiffs served Mr. McIntosh with a notice of motion for an order that he should bring the money into court. This notice of motion was headed in the action, and also "In the Matter of Francis Hugh de Mortimer McIntosh, one of the solicitors of the Supreme Court." Mr. McIntosh filed an affidavit in opposition to the motion, in which he stated he intended to repay the money in due course, and objected that the Court had no jurisdiction, in an action to which he was not a party, to order him to pay the money into court. Sheldon, for the motion, cited In re Howard, (1871) 24 L. T. (N.S.) 860; Staniar v. Evans, (1886) 34 Ch. D. 470. Muir Mackenzie, for McIntosh. FARWELL J. held that the cases cited sufficiently supported the application. In such a case as this the Court, in the exercise of its summary jurisdiction over its officers, had ample would be an order on Mr. McIntosh to pay the money into court within fourteen days, and also to pay the costs of the motion. Solicitors: W. R. Millar & Sons; McIntosh & Shaw. In re CLARKE'S SETTLEMENT. H. L. F. May 14. Buckley J. W. A. Peck (Birrell, K.C., with him), for the summons. BUCKLEY J. said that the question depended upon the con struction of sect. 13, sub-sect. 2, of the Settled Land Act, 1890, and whether the word "additions" in the sub-section meant additions of any kind, or must be confined to structural additions. The frame of the section shewed that alterations and This was a summons by the plaintiff's solicitor in a partnership action asking for a charging order in respect of his costs over a fund in court, and upon moneys in the bands of a receiver appointed in the action. After the appointment of the receiver, three orders had been made in chambers in favour of judgment creditors of the partnership firm giving them charges on the assets in or to come into the hands of the receiver. The hands. receiver had paid 3007. into court, and retained 527. in his It was contended on behalf of the solicitor that he was entitled under sect. 28 of the Solicitors Act, 1860, to a charging order for his costs in priority to the judgment creditors. Younger, K.C., and T. Douglas, for the applicant. Cecil Bovill and E. Clayton, for the judgment creditors, reli.d upon Kewney v. Attrill, (1886) 34 Ch. D. 345. JOYCE J. doubted whether Kay J. in Kewney v. Attrill intended to give any charge, except as amongst the creditors themselves, or as against the partners. This case fell within the observations of Romer J. in Scholey v. Peck, [1893] 1 Ch. 709. The judgment creditors who had obtained these orders were not "purchasers for value without notice" within the meaning of sect. 28 of the Solicitors Act, 1860, and the applicant was entitled to a charging order for his costs in priority to the judgment creditors. Solicitors: Harry Watkins; Smith & Hudson; Ward, Perks & McKay. G. A. S. May 13, 14 In re DUKE OF CLEVELAND'S SETTLED ESTATES AND THE SETTLED LAND ACTS, 1882-1890. additions meant alterations and additions to the building; and Joyce J. an alteration must of necessity be structural: it could not be effected in any other way. The sub-section referred to an addition to the building of some further building, or an alte ation in the building by removing and replacing in some other form of some part of the building-that is, that both one and the other must be structural. In In re Gaskell's Settled Estates, [1894] 1 Ch. 485, Chitty J. had construed the sub-section in that way, and had refused to treat a boiler and hot-water pipes as additions. It was true that in In re Freake's Settlement, [1902] 1 Ch. 97, the cost of an installation of electric lighting had been allowed out of capital, but he had the authority of Joyce J. for stating that that learned judge was only dealing with the particular facts of the case before him, and was not laying down any general rule. It was impossible to distinguish an electric lighting installation from a boiler and hot-water pipes. The application must be refused. Solicitors: Frere, Cholmeley & Co. Solicitor-Lien for costs-Partnership action-Money in court and in hands of receiver—“ Property recovered or preserved"Judgment creditor-Charging order-Priority-Solicitors Act, 1860 (23 & 24 Vict. c. 127), s. 28. Settled Land Act-Capital money-Investment-Tenant for lifeRight to direct employment by trustees of particular broker— Settled Land Act, 1882 (45 & 46 Vict. c. 38), ss. 21, 22, 31. This was a summons taken out by the tenant for life of the estates settled by the will of the late Duke of Cleveland, asking that the trustees of the will, who were also trustees for the purposes of the Settled Land Acts, might be directed to apply capital moneys in their hands, applicable for investment under the Acts, in the purchase, through a particular firm of brokers uominated by the applicant, of such authorized investments as he might direct. The trustees claimed the right to employ their own brokers. Younger, K.C., and Brinton, for the tenant for life, relied upon sect. 22, sub-sect. 2, and sect. 31, sub-sect. 1 (vi.), of the Settled Land Act, 1882, and In re Lord Coleridge's Settlement, [1895] 2 Ch. 704. Hughes, K.C., and E. Beaumont, for the trustees, were not called upon JOYCE J. held, following In re Hotham, [1901] 2 Ch. 790, tha the trustees were entitled to select their own brokers. Solicitors: Jennings & Finch; Dawson, Bennett, Ryde & Co. G. A. S. NOTICE TO SOLICITORS. With the view of insuring the greatest possible accuracy and rapidity in the various publications connected with the LAW REPORTS, the Council will be obliged, if the Solicitors to whom application is made by any Reporter acting for the Council will as soon as possible after application furnish the necessary Papers, together with any information in their power as to the names of the various Solicitors engaged in the case. At the same time, the Council thankfully acknowledge the assistance they have already received from so many members of the Profession in furnishing the papers required to prepare accurate reports. struction-Repeal-Re-enactment with modification—Clergy Discipline Act, 1892 (55 & 56 Vict. c. 32), 8 1, sub-s. 1 (d), (e)-Matrimmial Causes Act, 1878 (41 & 42 Vict. c. 19), 8. 4 -Summary Jurisdiction (Married Women) Act, 1895 (58 & 59 Vict. c. 39), ss. 4, 5-Interpretation Act, 1889 (52 & 53 Vict. c. 63), 8. 38, sub-8. 1. EMPLOYER AND WORKMAN. PAGE 1 116 113 Equitable mortgage-Notice-Fraud of vendor's solicitor-Legal Estate-Possession of deeds-Forged receipt-Priority. Wright J. 111 C. A. 113 COURT OF APPEAL. RECORD OF BUSINESS. 114 115 COURT I. WEDNESDAY, May 28. Oules v. Foster and Taylor. Appeal from Bucknill J. Settled. Belcher v. Roedean School Site and Buildings, Limited. Appeal from Bucknill J. Allowed. In re an Arbitration between the Roedean School Site and Buildings and Belcher and Others. Appeal from Bucknill J. Allowed. W. E. Jones v. Lawrence & Nicol. Appeal from County Court. Dismissed. SATURDAY, May 31. Morris v. Darcy Lever Coal Company, Limited, and Northern Employers' Mutual Indemnity Company, Limited. Appeal from County Court. Dismissed. Eaton v. Edwards. Appeal from County Court. Sent back to County Court. Losh v. Richard Evans & Co, Limited. Appeal from County Court. Sent back to County Court. Mathews v. Penrikyber Navigation Colliery Company, Limited. Appeal from County Court. Dismissed. Male v. Nixon's Navigation Company, Limited. Appeal from County Court. Dismissed. Williams v. Powell Duffryn Steam Coal Company, Limited. Appeal from County Court. Part heard. MONDAY, June 2. Bayfisher Steamship Company, Limited v. Mersey Docks and Harbour TUESDAY, June 3. Cross v. Corporation of Leeds. Appeal from Bucknill J. Allowed. Fletcher v. London United Tramway, Limited. Appeal from County St. George v. Lighting Corporation, Limited. During the sittings of the Courts THE WEEKLY NOTES will be published on Saturday, and will generally comprise Notes of Decisions up to and Appeal from County including those of the previous Thursday. All cases of permanent interest noted therein will be reported in full in THE LAW REPORTS. Fairey v. Rathe. Appeal from County Court. Dismissed. Waby v. Sheffield Mineral Water Syndicate, Limited. Appeal from Goodwin v. Scruttons, Limited. Appeal from County Court. Allowed. WEDNESDAY, June 4. Redden v. Siddall & Hilton, Limited. Appeal from County Court. Supreme Court of Judicature. Clatworthy v. R & H. Green, Limited. Appeal from County Court. C. A. Dismissed. Burnett v. Drury Lane Theatre, Limited. Appeal from County Court. Newman v. Mayor, &c., of Southampton. Appeal from County Court. Tansill v. Howell. Appeal from County Court. Dismissed. THURSDAY, June 5. Practice Administration-Insolvent estate-Secured creditorWithdrawal of proof-Certificate-Application to restore proof -Rules of Bankruptcy Bankruptcy Act, 1883 (46 & 47 Virt. c. 52), Sched. II.—Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 10-Rules of the Supreme Court, Order LV., rr. 57, 71. Appeal from Swinfen Eady J., ante, p. 87. E. McMurdo, the testator in this action, died in 1889 insolvent, and on the 25th of July, 1889, an order was made for the Jewell v. Great Western Railway Company. Appeal from County administration of his estate. The present appellant was a Court. Allowed. Needham v. Leeder. Appeal from County Court. Case remitted. Foxe v. Manzell. Appeal from County Court. Dismissed. creditor for 47,000l., as security for which he held (inter alia) shares and debentures in the Delagoa Bay and East African Railway Company. The railway had been seized by the Portuguese Government, and an arbitration tribunal was appointel in June, 1891. The appellant declined to prove for his debt, Marshall v. F. W. Rudeforth. Appeal from County Court. Part heard. and stated that he preferred to rely upon his securities. On COURT II. SATURDAY, May 31. Walter v. Ashton. Appeal from Byrne J. Sent to Final List. to Official Referee. the 15th of December, 1893, the chief clerk filed his certificate, in which the appellant's claim was entered as disallowed. Nothing was done till the award in the arbitration was made in 1900, and resulted in the appellant receiving only 14487. In December, 1900, he took out a summons for leave to prove, and this was dismissed on the 16th of December, 1901. There was no appeal from this decision. On the 14th of January, 1902, the appellant took out a summons to vary the certificate by allowing Sent his claim, and that he might be at liberty to prove for his debt. The summons was dismissed in chambers; the appellant moved to discharge the order, and on the refusal of the motion by Swinfen Eady J. he appealed. Barwood v. Chinnock. Appeal from Buckley J. Dismissed. MONDAY, June 2. City Estates Company, Limited v. Jaffray. Appeal from Kekewich J. Muir Mackenzie and R. J. Parker, for the appellant. Upjohn, K.C., and Eastwick, for a creditor having the conduct of the proceedings. Jenkins, K.C., and Whinney, for the executrix. THE COURT (Vaughan Williams, Romer, and Stirling L.JJ.) |