Gray v. Gray.

again, the property was to be divided between all the children, but if not, to go to the children living at her death, I confess I do not quite understand, although he might have had a reason; as it stands, however, it appears merely capricious, but it does not appear to me to be worth consideration. Then, it might have happened that a child might have married, died, and left issue during the widow's life, which would have been unprovided for; but that consideration is not enough to lead to the conclusion that the prior clause was merely giving specific portions, the remainder to be given by a residuary clause; and another consideration which tends to confirm my view is, that if, as the plaintiff contends, the latter clause is a residuary clause only, and the prior, specific; then in the event of the widow marrying again, the residuary personal estate is entirely undisposed of during the remainder of her life; this would produce an intestacy, because the residuary estate would thus be undisposed of; but this is not, therefore, conclusive. Upon the fair construction of the will, I think, there must be a declaration that, in the events which have happened, the whole personal estate, on the death of Ann Wiggins, should go to the three children who survived her.

GRAY V. GRAY.1

April 21, and May 8, 1852.

Trust, Intention to create.

A testatrix, by her will, gave 2,000l. stock to two trustees, in trust, to pay the dividends to the plaintiff for her separate use; and after making her will, she expressed her intention of giving a further sum of 2,000l. to the plaintiff upon the same trusts. One trustee died during the life of the testatrix; the surviving trustee transferred two separate sums of 2,000l. stock, at two different times, into her own name, and gave the plaintiff a power of attorney to receive the dividends upon both sums. There was evidence to prove that the trustee knew of the desire of the testatrix to give the second sum of 2,000l. to the plaintiff, and that the trustee had expressed her intention of carrying that desire into effect. The trustee afterwards became of unsound mind:

Held, that the second sum of 2,000l. so transferred by the trustee was sufficiently impressed with a trust in favor of the plaintiff..

THIS bill was filed by Harriet Gray, a legatee under the will of Mary Margaret Cave, against the executors of the will, for the purpose of obtaining a declaration that a sum of 2,000l. reduced annuities, which had formed part of the testatrix's estate, was impressed with a trust in favor of the plaintiff. The testatrix, by her will, dated in November, 1843, gave a sum of 2,000l. 31. per cent. consols, part of a larger sum in the same stock standing in her name, to her brother, David Cave, absolutely. She also gave the sum of 2,000, consols, to David Cave and her sister, Cecilia Cave, in trust, for the

1 21 Law J. Rep. (N. s.) Chanc. 745.

Gray v. Gray.

benefit of the plaintiff, Mrs. Gray, who was also a sister of the testatrix, during the life of herself and her husband, for her separate use; and if the plaintiff survived her husband, then the said 2,000l. stock was to be for her own use, but if she died in his lifetime, then the said stock was to fall into the residuary personal estate of the testatrix. And the residue of her personal estate the testatrix gave to Cecilia Cave.

After the date of the will, David Cave, the brother of the testatrix, died; and the bill alleged that the testatrix, previously to her decease, had intimated to Cecilia Cave, her sister and the only surviving trustee of her will, that, in consequence of the death of her brother David, she wished to alter her will, and to give the sum of 2,000, which she had bequeathed to David Cave, to the plaintiff, in addition to the other 2,000l. which she had given her by her will. That the testatrix was, for some months before her decease, in a very weak and infirm state of health, and had not sufficient strength, except at great personal inconvenience, to attend to any alteration in her will, but that she had exacted a promise from Cecilia Cave that the said 2,000 so bequeathed to David Cave should be given to the plaintiff.

In support of these allegations, there was the evidence of W. Woodward, a nephew of the testatrix, who deposed that, after the death of the testatrix, and on the 29th of July, 1845, he had accompanied his two aunts, the plaintiff, Mrs. Gray, and the defendant, Cecilia Cave, to the Bank of England, and was present when the said Cecilia Cave executed two transfers of stock, each of 2,000. consols, which had formed part of the testatrix's estate, into her own name. That the transfers were effected by a stockbroker, named Chant, who at the time suggested that, as one of the sums of 2,000l. was to be held by the said Cecilia Cave in trust for the plaintiff, and the other sum of 2,000l. was for her own benefit, it would be better that the two sums should be placed in different stocks; and accordingly one of such sums was transferred in the name of Cecilia Cave into the 31. per cent. reduced annuities and the other sum was allowed to remain in the 31. per cent. consols. That upon the occasion of such transfers being made, the said Cecilia Cave stated to the deponent that she knew it had been the intention of the testatrix, Mary Margaret Cave, to increase the legacy to the plaintiff to 4,000l. in consequence of the death of David Cave. That the testatrix had mentioned this intention to her upon several occasions, and had desired her to carry out this intention, saying, she wished her sister, the plaintiff, to have the other 2,000l. upon the same trusts, as the original legacy bequeathed to her. The deponent further stated that the said Cecilia Cave had declared to him that she should carry out her late sister's instructions.

There was also evidence to prove that on the 12th of August, 1845, the said Cecilia Cave added 2,000l. to the said 2,000l. 31. per cent. reduced annuities, making the sum 4,000Z.; and that the plaintiff had ever since received the dividends upon the whole sum of 4,000l. under a power of attorney executed by Cecilia Cave. It further appeared that Mr. Chant, the stockbroker, was still living,

Gray v. Gray.

but had become subject to infirmity of memory, and was unable to give any testimony regarding this transaction; and that Cecilia Cave had, since these transactions, become of unsound mind.

Walker and Terrell, appeared for the plaintiff, and cited Ex parte Pye, 18 Ves. 140; Thorpe v. Owen, 5 Beav. 224; s. c. 11 Law J. Rep. (N. s.) Chanc. 129; Ouseley v. Anstruther, 10 Beav. 453; Weckett v. Raby, 2 Bro. P. C. 386.

Willcock and Taylor appeared for the defendants.

Welch, for the residuary legatee.

Judgment reserved.

May 8. KINDERSLEY, V. C., after stating the facts of the case, said, The question here is, whether the second sum of 2,000l. transferred by Cecilia Cave into her name in the reduced bank annuities is so completely impressed with a trust in favor of the plaintiff that it can be enforced in a court of equity. When the case was argued, I felt some doubt about it; but I must confess that, after consideration, I have come to the conclusion, that there is a complete trust. There is no doubt whatever that the first sum of 2,000l. 31. per cent. reduced annuities, which was bought and transferred into the name of Cecilia Cave on the 29th of July, was a complete appropriation of that sum to satisfy the legacy to the plaintiff given by the will, for it was transferred into her name as the sole surviving trustee. No doubt, if David Cave had been living it would have been placed in the joint names of him and of Cecilia Cave. By the evidence of Mr. Woodward (the nephew of the plaintiff and of Cecilia Cave), who does not appear to have any interest in the matter, it is sufficiently proved, as against Cecilia Cave, that it was the intention of the testatrix to have increased the legacy to the plaintiff, and that she meant to carry out what the testatrix had desired. Then it appears that on the 12th of August, after the first 2,000l. had been transferred, Cecilia Cave again went to the same stockbroker, Mr. Chant, and bought a second sum of 2,000l., which was also transferred into her name, and she, at the same time, executed a power of attorney authorizing the plaintiff to receive the dividends upon the whole sum of 4,000l. The only doubt in my mind has been, whether Cecilia Cave parted with the stock. She certainly retained the legal title; but it is clear that the only way she had of carrying out what she herself said was the intention of the testatrix was by doing exactly what she did. She was the only surviving trustee of the will, and she was bound to place the additional sum in her name as trustee upon the same trusts as the original sum. It is true that she might have executed a deed declaring the trusts of both sums. That course, however, was not necessary with reference to the original legacy of 2,000l. in order to make the investment of it a due appropriation, and if not necessary for the original legacy, it was not

In re Townsend.

necessary in order to constitute a trust in respect of the further sum of 2,000. The rule is, that if the person creating the trust has distinctly expressed the purpose of his act, and has done all that is necessary to complete the intention, the court will hold the trust completely imposed; and this case appears to me to come within that rule, since Cecilia Cave did all that was necessary to impress a trust on the stock in question. Since these transactions Cecilia Cave has unfortunately become of unsound mind; and Mr. Chant, the stockbroker, who might have proved the transaction, has become subject to an infirmity of memory, so that I must decide the case upon Mr. Woodward's evidence, which is confirmed by the transactions themselves. Under all the circumstances, I shall make a declaration that the second sum of 2,000l. reduced annuities was impressed with the same trusts as the original legacy.

In re TOWNSEND.1

January 27, 1852.

Lunacy-Funeral of a Deceased Lunatic.

A lunatic died without leaving ready money to pay the expenses of his funeral, and of whose person or of whose estate there was no committee. The heir at law, who was one of the next of kin, petitioned that a sufficient sum belonging to the lunatic should be paid out of court for such purpose; but the court directed the persons with whom the lunatic had resided to proceed with the funeral, and ordered the petition to stand over.

A petition for this purpose is necessary; a warrant from the Lunatic Office is not sufficient.

THIS was the petition of the heir at law and one of the next of kin of the lunatic, Mr. Townsend, which, after setting forth that there was no committee of either the person or estate, although one had been approved of by the Master in Lunacy, and that the lunatic had died on Friday, the 23d of January (then instant), but there was no money in the house to defray the expenses of the funeral, prayed that the court would order a sufficient sum out of the money standing to the credit of the lunatic to be paid to the petitioner for the purpose of burying the deceased, the petitioner undertaking duly to apply it.

Grove, in support of the petition, stated that the petitioner was a nephew of the lunatic, who had lived with him. The petitioner's wife had had an allowance of 50l. a year out of the lunatic's estate, for her trouble in attending upon him, but since the death of the committee of the estate, in October last, no part of that money had been paid.

Follett, for the other next of kin and for the person who had been

VOL. XIII.

1 21 Law J. Rep. (N. 8.) Chanc. 747.
14

In re Noble.

approved of as the new committee, appeared to oppose the petition, as being wholly unnecessary and a burthensome expense on the lunatic's estate. The report of the Master, approving of the new committee, had not been confirmed; and the proper course would have been for the petitioner to have gone to the lunacy office, and taken out a warrant for the purposes proposed to be effected by the present petition.

The officer from the lunacy office, who was in attendance, stated to the court that a petition was the proper course.

[LORD CRANWORTH, L. J. A petition is necessary. Is any one making preparation, so far as can be, for the funeral?]

Grove. Yes; the petitioner and his wife are doing so as far as they are able, but they are poor people, yet they are willing to continue in the performance of that duty. The lunatic has made a will, which is sealed up, and is in the lunacy office, and it is proposed that the same shall be opened, in order to see whether the lunatic has given any directions.

KNIGHT BRUCE, L. J. Let there be no unseemly wrangle or dispute to interfere with the performance of the last offices to this lunatic. Let the will be opened, the funeral be completed, and the petition in all other respects stand over.

LORD CRANWORTH, L. J. Prima facie the nephew and his wife, with whom the lunatic has lived, are the most proper persons to be engaged in such a matter. Let them proceed with the funeral, but we can now give no directions as to payment; as to that the petition must stand over.

In re NOBLE.1

January 28, 1852.

Lunacy-Payment of Lunatic's Allowance to a Survivor of two

Committees.

Two committees of the estate of a lunatic were appointed, one of whom died, and no new committee was appointed in his place. The estate being small, the court permitted the income to be paid to the survivor on the production of an affidavit of his solvent circum

stances.

THE petition in this case stated, that two committees of the estate and one of the person of the lunatic had originally been appointed, but that one of the committees of the estate had died, but no new

1 21 Law J. Rep. (N. s.) Chanc. 748.