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and incident thereto "-and I think Mr. Witt has given us authority for saying that that covers the umpire's costs and his fees, to be settled by the arbitrators-shall be borne by the promoters of the undertaking. Therefore, we have got this, that under section 34, in the events which have happened, it was the duty of the defendants to pay all the costs of the arbitration and incident thereto. Now section 35 says this. [His lordship read the section, and continued:-] What is the effect of those two sections? The effect of those two sections is, to my mind, tolerably plain. The obligation imposed upon the defendants to pay the costs is not limited or qualified or taken away by section 35, but the combined effect of those two sections appears to be this, that the costs which the defendants are to pay under section 34 are to be regarded as their own costs which they must pay in order to perform the obligations imposed upon them by section 35. That will become important when we deal with the taxingmaster, but I am looking now at what I consider to be the broader point, whether there is any obligation on the part of the defendants to pay the plaintiffs; and under the circumstances and for the reasons which I have given, I can find none. But then it is put in this way. These are the plaintiff's costs, and, inasmuch as they are the plaintiff's costs and the defendants are bound to pay them and the plaintiff has had to pay them, the defendants are bound to reimburse the plaintiff his costs. Now if we look at it in that way these costs have been laid before the taxing-master, who was the proper officer, to tax and reduce them if necessary, and he, in the exercise of his jurisdiction, has struck them out. Whether there is or is not any method of compelling him to review that taxation I do not know. It is unnecessary for us to consider. He certainly is not the ordinary taxing-master. That is settled by the decision we have been referred to, the Sandback Charity case; and that there is no method of compelling him to review his taxation similar to that which obtains in ordinary taxation is also obvious from the decision in Sharpe v. The Metropolitan District Railway Co. The point decided in that case was of a different character. The point decided there was that a person could bring au action under this statute for his costs without going to the taxing-master at all; but the decision in that case shows that the taxing-master is not to be treated as a ordinary taxing-master in an action, but as having a jurisdiction imposed or conferred upon him by the statute and which he, being treated as an inferior court, can be compelled to perform either by mandamus or certiorari, when those are the proper remedies. If you look at it as a taxation of costs, then it does appear to me that the taxing-master's decision, in this proceeding at all events, is incapable of review and is against the plaintiff; but I prefer to put my judgment upon the broader base, that although the plaintiff might have compelled the defendants to pay all the money in the discharge of their duty which they have not done, he has disentitled himself from saying that they are under any obligation to him to repay a sum of money which he choose to pay to get a document which he had no right to get. That is the broad point.

LOPES, L.J.-I feel very sorry for the plaintiff in this case, and, speaking for myself, if I could have possibly seen my way to help him I would have been very glad to avail myself of it; but I fear I can see none. The real truth of the case is that the plaintiff went the wrong way to work. He had the whole matter in his own hands if he had been careful to follow the statute. He ought to have gone under section 35.

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I mean by that he ought to have held his hand, and left it to the company to take up this award. If they had not taken it up in a reasonable time he might have gone for a writ of mandumus to compel them to take it up; they would then have taken it up and would have paid these fees, and there would have been no difficulty whatever with regard to this matter. But most unfortunately he has not followed the statute. He went to the umpire, and he obtained his award and paid some £400. This was a voluntary payment. According to the statute he ought not to have paid it.

The question now is can he recover? I think he cannot. The effect of sections 34 and 35 appears to me to be this, that they make the costs of the arbitration the costs of the company. But in this case we have the plaintiff paying costs which, in point of fact, are the costs of the company, voluntarily paying costs of the company, and then seeking to recover them back. I do not see how he can do that. It seems to me very much the same as the case which was put by my brother Rigby during the argument, I mean as if the plaintiff had voluntarily paid the costs of some of the valuers during the arbitration and then had sought to recover them back from the defendants. I think on that ground alone this action fails.

But it appears to me there is another ground on which it also fails. It seems to me that really, when this matter came before the master, it was a question of costs, and the attempt which is now being made is an attempt to review his taxation. I know it is an action, but practically it is an attempt to review the taxation of the master. The master, as far as I understand the evidence, heard and considered this question of the attendance on the umpire and the umpire's fees, and when he had heard and considered it he decided that he ought not to allow those matters, and he disallowed them. If that is so this case comes distinctly within the authority of the two cases which have been cited to us: In re Owen and London and North-Western Railway Co. and In re Sandback Charity Trustees and The North Staffordshire Railway Co. I understand those cases to come to this, that if the master allows costs to one of the parties where the statute does not give them, or disallows them where the statute gives them, the court has no power to interfere with a master's taxation on motion to review, because the master is not acting in the matter ex officio, as the officer of the court, but as a person named by the Act. It seems to me that the position of the master is very much the same as that of an arbitrator. He has complete power and control over the matters with which he has to deal. Even if the arbitrator decides on a matter of law wrongly, the award cannot be set aside; neither do I think here that anything which the master has done, even if he has done it wrongly, can be set aside. On both grounds, therefore, I think this action fails.

RIGBY, L.J.-I am of the same opinion. I cannot help regretting it, because I see that by a mere mistake the plaintiff has paid a sum of money which he cannot recover. It could not be argued that this money was paid at the request of the defendants and was recoverable on that score, and consequently the appellant frankly admitted that that could not be so. Then it was said that it was a statutory debt. Let us examine that. What by the statute is given as a debt from the railway company to the plaintiff? Clearly nothing more than his costs of the arbitration, and he chooses voluntarily to pay a part of these costs, there being no obligation whatever to pay any part of them.

The plaintiff, probably misled by the arbitrator sending to him to announce that the award was ready

for him to take up, chose to take it up. He did wrongly. He had no right to do so. I do not mean to say that it was a wrong that would do any great harm to anyone, but he had no right to get the award or to obtain possession of the document at all, and the sum paid by him was money paid in order that he might have what the statute did not intend him to have.

Then, in regard to the taxation part of the question. If these are costs, on the assumption that they were costs of the plaintiff, the master is the proper person to deal with them. No review of that taxation can take place. The only remedy, if remedy there be, is either by a mandamus against him to consider that particular question and to tax a particular sum, or by certiorari. I do not say that such a remedy exists; but at any rate there is no remedy by review, and no right of action directly against the company; and it appears to me, therefore, that the learned judge's decision is quite right and ought to be supported, and the appeal dismissed.

In re MILLS' TRUSTS. (a.) Bankruptcy-Assignment-Equitable chose in actionAssignment to trustees Notice of assignment not given-Disclaimer by trustees—Bankruptcy of assignor

Possession, order, or disposition of bankrupt Consent of true owner Infant beneficiariesIncapacity to consent-Bankruptcy Act, 1849 (12 & 13 Vict. c. 106), ss. 125, 141-Bankruptcy Act, 1883, 8. 44, sub-section 3.

The owner of a reversionary interest under a will settled his interest upon his wife and children in the year 1861, and became bankrupt in the year 1865. The trustees of the settlement had no knowledge of its existence till after the settlor's bankruptcy, when they at once "rejected the trusts." Subsequently the reversionary interest fell into possession, when the trustees of the will, who, prior to the bankruptcy, had no notice of the settlement, paid the fund into court under the Trustee Relief Some years afterwards the assignee in bankruptcy claimed the fund.

Act.

Held, that the assignee in bankruptcy had no title to the fund.

By Kekewich, J., on the ground that the trustees of the will had notice of the settlement before they paid the money into court and before they knew that the assignee in bankruptcy claimed the fund.

By the Court of Appeal, because the fund was not, at the date of the bankruptcy, in the "possession, order, or disposition" of the bankrupt settlor "with the consent of the true owner" within the meaning of the Bankruptcy Acts, the "true owners" being the beneficiaries, some of whom were infants, and, therefore, incapable of consenting.

This was an appeal from a decision of Kekewich, J., dismissing the petition of the assignee in bankruptcy

of the estate and effects of John Mills Wills, who was adjudicated a bankrupt on the 3rd of July, 1865, for the payment out of a sum of money paid into court

(a.) Reported by W. SHALLCROSS GODDARD, Esq., Barrister-at-Law.

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by the trustee of the will of John Mills, under the Trustee Relief Act, in May, 1868.

The facts of the case are as follows: John Mills Wills was the nephew of John Mills, who, by his will dated the 16th of January, 1836, after directing payment of his debts and funeral expenses, gave the residue of his goods, chattels, and effects to John Isaac Hensley and Charles Hensley upon trusts (inter alia) after the death of the survivor of his three sisters, Nancy Mills, Lydia Sarah Hensley, and Sarah Wills (the mother of John Mills Wills), to divide the same equally between all the children of his said three sisters.

John Mills, the testator, died on the 8th of September, 1837, and letters of administration with the will annexed were, on the 31st of October, 1837, granted to John Isaac Hensley and Charles Hensley.

John Isaac Hensley died on the 28th of July, 1855, and Sarah Wills, the last survivor of the three sisters, died on the 7th of November, 1866; on which event John Mills Wills became, under the trusts of the will, entitled in possession to one-eighth of the residue of the estate of John Mills.

Some years previously-viz., in the month of February, 1861, John Mills Wills, partly in consideration of his wife having handed him a sum of £600 which she had received under the trusts of her father's will, made a settlement, whereby he assigned his interest under the will of John Mills, as also a contingent interest to which he was entitled under the will of his grandfather, to Thomas Leeman Hensley and John Bickford upon the trusts therein declared in favour of his wife and children. This deed of settlement was not executed by the trustees, who appear to have had no knowledge of its existence until after the bankruptcy of John Mills Wills, and they then "rejected the trusts"; both the trustees

had since died.

John Mills Wills was adjudicated bankrupt on the 3rd of July, 1865, and Henry Martin Wills was appointed creditors' assignee and Edward Watkin Edwards official assignee under his bankruptcy.

In the month of May, 1868, Charles Hensley, the surviving trustee of the will of John Mills, after giving Henry Martin Wills and Edward Watkin Edwards notice of his intention so to do, paid the share of the bankrupt in the residuary estate of John Mills into court, under the Trustee Relief Act.

In the affidavit of Charles Hensley, made at the time he paid the fund into court, reference was made to the settlement of February, 1861.

The

No steps were taken to get the fund out of court until a petition was presented to Kekewich, J., by Peter Paget, who had been appointed on the 6th of December, 1894, sole assignee of the estate and effects in bankruptcy of John Mills Wills. learned judge required the beneficiaries under the settlement of February, 1861, to be represented at the hearing of the petition. The petitioner relied mainly on a decision of Wood, V.C., in Hensley v. Wills, 16 L. T. 582, 15 W. R. Ch. Dig. 147, to the effect that the contingent interest of John Mills Wills under the trusts of his grandfather's will, comprised in the settlement of February, 1861, belonged to the assignees under his bankruptcy and not to the beneficiaries under the settlement, and claimed that the interest of John Mills Wills under the trusts of the will of John Mills also belonged to the assignees under his bankruptcy, that interest having at the date of the bankruptcy been in the possession, order, or disposition of the bankrupt "by the consent and permission of the true owner thereof" within the meaning of the Bankruptcy Act, 1849, section 125, and that the fund in court should, therefore, be paid

equivalent of that rating, and the council of the said association shall decide annually which yacht has, in their opinion, the best claim to the cup; and, in the event of their being any difference of opinion, the vote of the majority of the said council is to decide the question; or the said council may, if they think fit, order the said cup to be specially raced for; my object in giving this cup is to encourage the sport of yacht-racing. And I declare that, in the event of the Yacht-Racing Association being dissolved or ceasing to exist, the trustees of the said fund shall pay and make over the same to three trustees to be appointed by the council or committee of the Royal Thames Yacht Club, by whom the said fund shall be held upon similar trusts to those hereinbefore declared with regard to the purchase of a cup to be called 'The Nottage Cup.'

ever,

The testator then gave various other "sums" of money, and the residuary gift was as follows:-"I give, devise, and bequeath all my real and personal estate, property, and effects whatsoever and wheresonot otherwise disposed of unto my trustees, their heirs, executors, and upon trust that my trustees shall sell, call in, and convert into money the same, and pay or provide for the payment of the pecuniary legacies and sums hereinbefore bequeathed," and then upon the trusts therein mentioned, and the testator declared that his trustees might postpone the sale and conversion of his debentures or shares in the London Stereoscopic and Photographic Co. for as long as they should think fit.

At the date of the will and of his death the testator

had 130 £50 debentures, and 3,710 £5 fully paid-up shares in the London Stereoscopic and Photographic Co., and no other interest in the company. There were two classes of debentures in the company-viz., those held by the testator and certain mortgage debentures" which had priority over them, but there was no "debenture stock," and there were no "debenture shares."

In the Barton Estate Co. he had debentures but no shares.

On the 28th of March, 1895, the executors and trustees of the will took out an originating summons for the purpose of deciding certain questions that

had arisen under the will.

Upon this summons Kekewich, J., held (1) that the legacies of shares given by the will were general legacies, but that the legatees of "debenture stock or shares" took nothing under the bequests to them; (2) that the trust legacy bequeathed by the will to the executors was a general legacy as regards the shares comprised therein, but void as regards the £5,000 debenture stock or shares of the London Stereoscopic Photographic Co., and the £1,500 debenture stock or shares of the Barton Estate Co.; and (3) that the legacy of £2,000 given by the will to the Yacht Racing Association of Great Britain was an invalid bequest.

From this decision Cecil Ernest Palmer, one of the legatees of shares and "debenture stock or shares," Edith Marian Bigwood (by an order of Kekewich, J., appointed to represent the trust legatees), and the Yacht Racing Association of Great Britain appealed. Crackanthorpe, Q.C,, and IV. A. Peck, for C. E.

Palmer.

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They referred to Ashton v. Ashton, 3 P. Wms. 384; Sleech v. Thorrington, 2 Ves. Sen. 560; and Door v. Geary, 1 Ves. Sen. 255.

Lopes, L.J.. referred to Trinder v. Trinder, 14 W. R. 557, L. R. 1 Eq. 695.

Pattullo, for residuary legatees.-The legacies are general and, as to the debentures, void for uncertainty.

He referred to In re Gray, Dresser v. Gray, 35 W. R. 795, 36 Ch. D. 205, and In re Lane, Luard v. Lane, 28 W. R. 764, 14 Ch. D. 856.

Fawcus, for the executors and trustees.

LINDLEY, L.J.-With regard to these first two appeals, I do not think we shall gain anything further by looking through the will again. I cannot agree with the conclusion arrived at by Kekewich, J., when he goes the length of saying that these two appellants take nothing. I cannot get that out of the will.

This testator seems to have had a good many shares, and, amongst other things, he had an interest in debentures and shares in the Stereoscopic Co.-I call it for shortness-and in the Barton Estate Co. [His lordship stated the facts as to the testator's shares and debentures, and continued:-]

in the same company.

Now let us see what he does about the Stereoscopic Co. He gives to each of his two nephews naming them, Cecil Palmer and Arnold Palmer-I will read it as it runs, and without any stops, because I do not know where to put the stops-" £500 debenture stock or shares of the Stereoscopic Co.'" Then he goes on and says, "I give to each of my cousins," naming them, "350 ordinary shares Then he gives to somebody else "250 fully paid shares" in the same company, and he gives to somebody else fifty "shares," without calling them anything, in the same company. Now if one only for a moment bears in mind what there was, and what he had to give, it appears to me that he had, in a very inaccurate way, contrasted the debentures on the one side, which he calls "debenture stock or shares". "shares "" not knowing what to call them-with the other, which he calls sometimes " ordinary," sometimes 'fully paid shares" and sometimes "shares" without any adjective at all. I cannot help thinking that his scheme is that he gives to these two persons what he calls "debenture stock or shares," not knowing what to call it, but meaning something different from "fully paid shares" or "ordinary shares" or "fifty shares."

on

Now bearing in mind that he had only 130 debentures of £50 each in the Stereoscopic Co., aud

he had those-I cannot come to the conclusion that

Kekewich, J., is right in saying that there is such a defect of description as to destroy the whole legacy which was clearly intended. There is something answering the legacy, although the description of that something is not very happy or accurate.

Now as regards the Barton Estate Co., which is the second appeal, the case is still plainer. This is the language of the will with regard to that. [His lordship read the gift, and continued:-] Now, as regards the Barton Estate Co., he had, as he calls it,

£1,500 debenture stock or shares of the Barton Estate Co. (Limited)." He had nothing there except debentures, and that shows, to my mind, almost conclusively, that he did not know how to describe these debentures. But having got debentures, he leaves

rate, I admit) of "debenture stock or shares."

Now the remarks I have made about the Stereoscopic Company also apply to this bequest. He contrasts there what he calls "debenture stock or shares,"

with "ordinary shares," and that, I think, fortifies the conclusion at which I have arrived, namely, that he did know that he had different sorts of thingsthat he had debentures (not knowing whether to call them stocks or shares), and ordinary shares; and when he uses the expression "debenture stock or shares," what he means is, debetures as distinguished from the other shares which he describes sometimes as fully paid up," and sometimes as "ordinary," and sometimes without any adjective at all. As to the Barton Estate Co. there is no difficulty in it, because he only had debentures. So far, therefore, I think, there is no real difficulty.

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The next point, however, arises whether these gifts are specific, or whether they are what are called general legacies." As to that, with respect to the £5,000 debentures, as I will call them, putting my own construction on this clause-as to the gift of £5,000 debentures and 350 ordinary shares in the Stereoscopic Co., and that of the £1,500 debentures in the Barton Estate Co., there can be no reasonable doubt, because he goes on, as to them, to say that the trustees are to hold these "upon trust to continue the same in their present state of investment." That points, without any ambiguity or any doubt, to the things which he then had in some state of investment. That makes that bequest perfectly specific, and free from any difficulty at all.

As regards his bequest of the £500 in the London Stereoscopic Co., there is more difficulty because there is nothing in the immediate connection of that clause to show that he is dealing with the particular debentures which he had. But bearing in mind what he was doing, bearing in mind that he had debentures, that he is apparently dealing with them, giving them to his relatives and indicating, in one place clearly, that he intends them to be specific, bearing that in mind and then turning to that indication, (I admit somewhat slight) in the gift in the residuary clause to which Mr. Crackanthorpe called our attention, I think we should not be going too far or stretching the doctrines of the court in holding the first bequest to be specific too. When he says, "I give to each of my nephews £500 debentures," I do not think that that is a pecuniary bequest, but something more than that. It is not a sum of money at all. It is not a pecuniary bequest, I think in the view of this testator, because further on he gives a string of what he calls "pecuniary legacies," which are mere sums of money. There is some difficulty about whether it is not a gift of a sum of money,' but I do not think it is. When you come to look at it, it is not a gift of money to be laid out or to be applied in buying debentures-it is a gift of these debentures which the context shows he himself has. If that be right, then the clause about residue does help, because the clause as to residue is this. [His lordship read the clause and continued:] Now, the "pecuniary legacies and sums hereinbefore bequeathed," do not, I think, apply to the bequest of these debentures. I do not think they do. But coupling that with the clause which comes afterwards, which is perhaps not alike, but a little looking in the same direction, namely, that the trustees" may postpone the sale and conversion of my debentures," I think we may say and ought to say, upon the true construction of this will, and taking into account the whole of these clauses, that what he really meant was to give the £500 debentures, part of that which he then held in the company. I think that is right and, therefore, the appeal must be allowed.

66

LOPES, L.J.-I have great difficulty in understanding how Kekewich, J., arrived at the conclusion which he seems to have arrived at-namely, that these

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two legatees took nothing. Reading the will carefully, it appears to me that the testator was very mixed in his mind as to the proper designation which he ought to apply to the interest in these companies, which he then possessed. It appears to me that he did not know what to call them, whether to call them "debenture stock" or debenture shares," or how to designate them. First, with regard to the Stereoscopic Co. he had in that company debentures and ordinary shares, and I do not doubt for a moment, having regard to the words he used (though, no doubt, he was mixed in his mind as to how to designate them), he meant debentures.

With regard to the Barton Estate Co. the language is more clear. In that company he only had debentures, and the difficulty there is not so serious to get over the words. I think there he did mean the debentures that he had in that company.

Then the question arises as to whether these two legacies are to be regarded as specific or general. It seems to me with regard to the Barton Estate, as has been said by Lindley, L.J., that there is very little doubt indeed that the legacy to the legatee of the debentures in that company is a specific gift.

With regard to the Stereoscopic Co., the difficulty is greater; but, having regard to the different parts of the will to which our attention has been called, I am inclined to think that the testator intended that gift to be specific, I mean by that, that he intended it to be a gift of a particular thing which he then possessed, as distinguished from something which was to be provided out of his general estate by his trustees after his death.

I am of opinion, therefore, that this appeal should be allowed.

RIGBY, L.J.-I am of the same opinion. In construing a will we are bound to look to every part of it, and to gather what light we can from one part in attempting to construe another.

Now, here we have a testator who is possessed of debentures in the Stereoscopic Co. He is possessed also of ordinary shares in the Stereoscopic Co., and he is possessed also of debentures in the Barton Estate Co. He appears to be dealing with something that he possesses in each of these cases, because he aims (according to my construction of the particular bequests) at describing something or other and he does not quite know what the description ought to be. He calls it "debenture stock or shares." I read that as meaning "What I possess in the nature of debentures, whether properly called stock or properly called shares, or whatever the description may be." I think he is trying to dispose of something that he has got, and I think that is made a little stronger by referring to the other bequests. Well, already we have got a little way. He is treating it as a specific gift. If we are satisfied that he is trying to describe something that he had, and to dispose of that, we have got a long way; but when we find that in the will he deals with a precisely similar sort of property, and he gives to trustees that property upon trust, to continue the same in their present state of investment, or to sell the same-one is not stronger than the other, I agree

and then afterwards he says, "and to stand possessed of the said stocks and shares, and the proceeds of the sale thereof," we have three several expressions which can only be explained, with reference to that bequest, on the supposition that he was making a specific gift. The trustees were to hold the actual subject of the gift upon trust. Then we find that he gives what he calls, correctly, "pecuniary legacies”; and we find also that he gives in terms " sums of money." As to the sum of £2,000, he does not