« AnteriorContinuar »
ON THE MODES OF BARRING THE RIGHT OFment in such cases, the safety of the trustees, for the SURVIVORSHIP OF A MARRIED WOMAN IN reasons stated by Mr. Lewin and Mr. Jacob, can be REVERSIONARY PERSONAL INTERESTS. ensured only by setting the absolute and irresponsible
power of the court between them and the surviving In a paper, contained in a former Number of The wife, under the plan of proceeding suggested by the JURIST, (vol. 9, p. 514), the authorities bearing upon
writer, which is to assign the life interest to a trustee, the question, whether a married woman's equitable re
upon such trusts as the feme covert reversioner shall versionary interest in personalty, expectant upon the appoint, and then for the feme covert to appoint in fatermination of a preceding life interest, can be barred. vour of herself. There would not be the same occasion were collected and discussed; and it was urged, that,
for the trustees to seek to shield themselves under the upon principle, admitting the authorities to leave the
irresponsibility of the court; they would be enabled to question in a doubful state, the release of the preceding
ground their defence against the surviving wife on the life interest, either to the wife or to the husband, could
legal operation of the res gestæ, and on the iniquity or not have, either technically or consistently with the doc- want of equity of the wife's claim, inasmuch as it trines of equity, the effect of rendering the wife's right
might, consistently with the established doctrines of by survivorship capable of reduction into possession.
equity, be contended, on the part of the trustees, and A pamphlet has recently been published by a learned could not be disputed on the part of the surviving wife, writer*, in which it is suggested that the object in
that she had acted in the matter as a free agent, and question may be attained by the circuitous method of had, by her own act while so acting, brought the reverthe prior tenant for life assigning his interest to a sion into possession, and put the fund into such a state trustee, upon such trusts as the wife shall appoint, and as enable then the wife appointing to herself. By this proceeding. equity, to transfer it without committing any breach it is contended, the wife would acquire an immediate of trust.” absolute interest in the fund, which would thus be Now, it appears to us, that whatever arguments are brought within the disposition of the husband: and if of weight against the effect of a surrender of the life the fund were then transferred to the husband, á reduc. interest directly to the wife, are of equal weight against tion into possession would be effected, which would bara surrender to a trustee, to such person as she shall the claim of the wife surviving. This we take to be
appoint, completed by an appointment to herself conthe substance of the doctrine contained in the opinion
temporaneous with, or immediately following, the asgiven by Mr. Swinburne, and printed in his pamphlet, signment (page 7); and we shall proceed to discuss its sound
Firstly, upon the technical ground of merger, which ness t.
is the stated ground of the decision in Lachton v. Adams, According to the view that we take on this subject,
(5 Law Journ., N. S., C., 382). The objection to the the grounds of objection to the plan suggested by Mr.
notion of merger of the life interest in the wife's reJacob, which was the foundation of Oldham v. Lewis,
versionary interest where there is a surrender to her, (Lewin on Trusts, 296), are two: first, the purely
is, that the wife cannot irrevocably assent to the gift to technical one, that there can be no merger by a sur
| herself of an estate, but, by reason of her incapacity render of the prior life interest either to the wife or of
of coverture, can accept it only sub modo, viz. subject to the husband; and, secondly, the purely equitable
to her right of disclaiming it on becoming discoverte. ode, that a court of equity will not assist a married
Now, a general power of appointment, which can be woman to deprive herself of any right which she would exercised in favour of the donee absolutely, is in the have by law, if equity did not interfere; or, to adopt
nature of an estate; and it might, we think, be sucMr. Jacob's mode of expressing it, that the court might
cessfully contended, that a married woman can no more think the assignment of the prior life interest to the
be conclusively bound by her acceptance of such a wife a contrivance to defeat her right by survivorship,
power, than she could by her acceptance of an actual and might, perhaps, not hold her bound by it. We do
estate. Hence, if this view be correct, the exercise by not understand Mr. Swinburne, in his pamphlet, to dis
the married woman of the power of appointment, which pute the validity of these objections, when the surrender
is the formal acceptance of the estate coupled with the is directly to the wife herself. We do not mean to say power, cannot be binding upon her, and, therefore, that he admits their validity; but he offers no observa
would not produce the required merger. tions against it. He appears, however, to conceive, that
On the second, or equitable ground, the argument his suggested plan is intrinsically different, and effect-against Mr. Swinburne's proposed plan for destroying a ive, whatever may be the fate of Mr. Jacob's; and
married woman's right by survivorship, appears to us We collect, that he grounds the efficacy of his plan on
still stronger. If the court would not, in the case of the amalgamation of the life interest and the rever
surrender directly to the wife, hold her consent to the sionary interest, being the result of the wife's own act,
transfer of the fund binding upon her, on the ground of where, as he recommends, a power of appointment is
the transaction being a contrivance to defeat her right, in incorporated. At least, this appears to be the spirit of
other words, a fraud upon the settlement, why should it the following passage, in p. 29 of Mr. Swinburne's
suffer itself to be drawn aside from this broad equity, by pamphlet:
the mere technical contrivance of interposing a power? * “On the cases of Bean v. Sykes and Wilson v. Old
If the legal right of the husband is not apparent,-if the kam, the writer would observe, that, under the mode
assistance or interference of equity is at all requisite, of proceeding hitherto adopted to effect the dis-settle-would a court of equity, on a question of the purest
equity, tolerate the argument, that a married woman * " The Means of dis.settling and dealing with Personal acts as a free agent, merely because she acts as the Funds," &c. By T. Swinburne, M.A., Barrister. Blenkarn. donee of a power to appoint to herself, instead of being
+ The learned writer has also printed the opinion contrà of the direct donee of an interest, when the whole transa Mr. , whom he designates as of great eminence; and action upon the face of it purports to be a mere conhis own reply to such opinion, against which he argues, not fuivana without acuteness, but not without acrimony. With this feud
trivance to make her the instrument of defeating her we shall not meddle. It is not for us, as the Lord Chancellor
equity? Could one be heard in equity to say that the
gift to a married woman of a power given for the ex* tantas componere lites" - to bring ourselves within the wind press purpose of enabling her to defeat her equitable of such a commotion. We shall, therefore, satisfy ourselves right, and the exercise of the power by a deed contemwith discussing the dry question, whether Mr. Swinburne's dis poraneous with the gift of it, do not form together as settling machinery will produce its intended effect.
complete an intended fraud upon the settlement, as a
expresses it in
surrender of the life estate directly to her? There is no
LONDON.-In Term. distinction between the two transactions, unless it be Sitting at 12, on Thursday, June 11, for undefended causes, technical. If there be such a technieal distinction, its and such as the judge considers fit to be taken. efficacy, if any, must be upon the rights of property that After Term.-Monday, June 15, to adjourn. the law casts upon the parties. If the effect of it be to create a bona fide merger of the life interest, and an
Court of Common Pleas. acceleration of the wife's reversion, stripped of its in
In Term. gredient the contingent right of survivorship, then, of
LONDON, course, cadit questio; but if there is no such technical
Wednesday ........ May 27 | Friday ............ May 29 efficacy in the introduction of the proposed power of
Wednesday ......... June 3 Friday ............. June 5 appointment, as affecting the common-law rights of the parties in the sort of case discussed, and we contend
After Term. there is none, then we contend also, that, in equity, Saturday .......... June 13 | Monday .......... June 15 what will be looked at is, whether the transaction, The court will sit at ten o'clock in the forenoon on each of taken as a whole, is not a fraudulent contrivance to the days in term, and at half-past nine precisely on each of the destroy the wife's right by survivorship; and the court days after term. will not trouble itself, whether the wife be apparently a
The causes in the list for each of the above sitting days in free agent, or not. The broad doctrine of equity, as be
tv as ke term, if not disposed of on those days, will be tried by adjourn. tween husband and wife, is this: if the husband has a me
haem ent on the days following each of such sitting days.
| On Monday, the 15th June, in London, no causes will be legal right of property, equity will not in general take it l.
| tried, but the court will adjourn to a future day. from him; if he has not, the court will neither aid him in obtaining from the wife, nor suffer her by any act of her own to deprive herself of her legal rights of property.
Erchequer of Pleas.
Ist sitting, Monday.. May 25 1st sitting, Friday .... May 29
3rd sitting, Monday .. June 8 By adjournment, if neces. EQUITY SITTINGS, TRINITY TERM, 9 Vict.
sary, Saturday .... June 6
Saturday .......... June 13 | Monday .......... June 15 Before the Right Hon. the MASTER OF THE Rolls, at
. (To adjourn only). Westminster.
The court will sit in Middlesex, at Nisi Prius, in term, by Friday...... May 22 Motions.
adjournment, from day to day, until the causes entered for the Saturday ..... 23 Petitions. The unopposed first.
respective Middlesex Sittings are disposed of.
The court will sit, during and after term, at ten o'clock. 70 | Pleas, Demurrers, Causes, Further Di. Tuesday.. Wednesday rections, and Exceptions.
GENTLEMEN CALLED TO THE BAR. Thursday..
28 Motions. Friday ...
297 Saturday ....
The following Gentlemen have been admitted to the 3 | Pleas, Demurrers, Causes, Further Di. degree of Barrister at Law:Monday ..... Ju Tuesday ...... orrections, and Exceptions.
LINCOLN's Inn, May 1.- Frank Kyffin Lenthall, Wednesday ...
Esq.; John Coppin, Esq.; Thomas Sampson_DarnThursday .. 4 Motions.
brough, Esq.; William Austin, Esq.; Henry T. Cu
sack, Esq.; Montague Bernard, Esq., Reginald Robert Saturday ...
| Pleas, Demurrers, Causes, Further Di. Walpole, Esq. May 6.-Francis Henry Deane, Esq.; Monday.... Tuesday.... 91
Berdmore Compton, Esq.; Charles Cardwell, Esq.; rections, and Exceptions.
Edward Kent Karslake, Esq.; Charles Watkin WilWednesday ... 10) ...... 11° Petitions. The unopposed first.
liams Wynn, Esq.; Henry Cust Burges, Esq. Friday ......... 12 Motions.
MIDDLE TEMPLE, April 17.-Charles Newton, Esq., Short Causes, Consent Causes, and Consent Petitions every
of Caius College, Cambridge; Edward Morris, Esq.;
" Charles Frederick Stovin, Esq. May 8.-James Cove Saturday at the Sitting of the Court. Notice.-Consent Petitions must be presented, and copies
Jones, Esq.; William Henry Doyle, Esq.; Evelyn Bosleft with the Secretary, on or before the Thursday preceding
cawen, Esq., of Christ Church, Oxford, Gerard Roope, the Saturday on which it is intended they shall be heard.
Esq.; Archer Gurney, Esq.; William Horton Claridge,
Godfrey Bellinger Hudson, Esq.; Donald Malcolm LoCOMMON-LAW SITTINGS, IN AND AFTER gie, Esq.; John Harry Lee Wingfield, Esq., B.A.; TRINITY TERM, 1846.
Henry William Morris, Esq.; Þelabere Roberton
Blaine, Esq.; Fielding Nalder, Esq., B.A.; John Court of Queen's Bench.
Bower, Esq., of Magdalene Hall, Oxford; Edgar KedMIDDLESEX.-In Term.
ington Rodwell, Esq. 1st sitting .. Monday.. May 25, and two following days, at 11. L INNER TEMPLE.—R. S. Eastwood, Esq.; R. M. He2nd ditto .. Thursday .... 28, and subsequent days, at 11. ron, Esq.; John Sheehan, Esq.; T. L. Yeoman, Esq.; 3rd ditto .. Wednesd. June 10, at half-past 9 precisely, (for William Everett, Esq.; John Riley, Esq.; John Dar
undefended causes only). lling, Esq. After Term.-Saturday, June 13.
Gray's Inn, April 29.-James John Wilkinson, Esq.; A list of such remanets as appear fit to be tried in term will | Benjamin Way, Esq. be printed immediately; but on the statement of either side that a cause is too long to be tried in term, it will be with.
COURT OF QUEEN'S BENCH. drawn from such list, provided the other side have two days' notice of the application at the Marshal's to postpone, and do not oppose the application on good grounds. “The usual num. 1 May 11.-Lord Denman, C. J., delivered the judge ber of completed and new causes will be put into the list day ment of the court in by day in their usual order.
Doe d. Merigan v. Daley-Rule discharged.
A REPOSITORY OF POINTS IN EQUITY AND confine the Repository to the leading cases. But he CONVEYANCING,
conceives that this would be unsatisfactory: for, what Designed to combine the Advantages of an Abridgment of,
one might consider to be a leading case, another might and an Index to, the recent Cases, and of an original
not; and what might be a very unimportant decision to Statement of the Points established thereby.
most persons, might to some one be of the utmost mo
ment, as being peculiarly applicable to his own partiBY JOSIAH W. SMITH. B.C.L.,
cular case; and cases which may never be followed by OP LINCOLN'S INN, BARRISTER AT LAW.
others of the same kind, may, nevertheless, be of great
indirect value, in deciding other cases to which they PREFACE,
bear some analogy. This Repository comprises the points in equity jurisprudence (as distinguished from equity pleadings and
PART I. practice) and in conveyancing, which occur in THE
ADMINISTRATOR. JURIST, from the beginning of the Tenth Volume to the end of March ; in the Law Journal, New Series, from
Equitable Assets. ]-When a testator devises real esJanuary to March, inclusive; and' in the other Re
tate upon trust to sell, and declares that the proceeds ports published during the same period, namely, 12
shall be deemed part of his personal estate, and then Clark & Finnelly, part 2; 2 Collyer, part 1; 4
proceeds to make a disposition of his personal estate Hare, part 3; 5 Adolphus & Ellis, part 5; 6 Adolphus
after payment of his debts, the real estate is equitable
assets for payment of debts. & Ellis, part 1; 14 Meeson & Welsby, parts 2 and 3;
Shakels v. Richardson, 2 and 7 Manning & Granger, part 3. And it has been
Coll. 31. written with the hope that it will be considered to re
Priority of Debt due for Rent from a Tenant from lieve the Profession from the arduous labour of reading Year to Year. ]-In the administration of assets, a debt and making notes of the cases in equity and conveyancing;
due for rent of land occupied by a tenant from year although, of course, nothing can remove the expediency
to year has priority over ordinary simple contract debts. of possessing the reports themselves, for the purpose of
Clough v. French, 15 Law J. 24–V. C. E. quotation and reference; and, if possible, it will be succeeded by another part every three or four months, com
AGREEMENT. prising the cases in all the reports published within the
Usurious Contract.]—Where a builder, to whom a intervening period.
person has agreed to grant a lease for a long term of The reporters' marginal abstracts of the cases are very
years for building purposes, receives advances of money accurate and ably written, and are doubtless framed in
to enable him to carry on the building, and thereupon the best mode for assisting the practitioner in referring
it is agreed that the lease shall be made or assigned to to the cases. But, on that very account, they are ne
the lender, and that the borrower shall pay rent to the cessarily ill calculated for conveying to the mind, and lender at the rate of 8l. per cent. from the date of each enabling it to retain, the points and principles involved payment, and take a lease from him, but that the borin those cases, because those abstracts are, and were de
rower is to have the option of selling the houses, prosigned to be. merely abridged statements of the particular | vided he pays the lender the amount advanced, and all care reported, and not propositions, rules, or placita so
of placita so rent due, such an agreement is usurious and void. framed as to exhibit with brevity and perspicuity the
Belcher v. Vardon, 2 Coll. 162. precise points of law and equity which the decisions Usurious Contract entered into by one who afterwards in those cases have established, divested of the names, becomes Bankrupt.]-Assignees of a bankrupt who seek dates, sums, quantities, and other particulars which are relief against one of his creditors in respect of an usuof no use to the student, and have no connexion with rious contract entered into by the bankrupt, are not the cases with reference to which such decisions are required to pay the whole amount fairly due to such consulted by the practitioner.
creditor, but are entitled to relief upon the terms of In the present attempt, which entirely differs from allowing a proof under the fiat for that amount, and the existing periodical digests, the aim of the writer | interest at 5l. per cent. 16, has been to accomplish the difficult design of moulding Part of an Agreement enforced by Injunction.--Agreethe essential parts of the cases into precise placita, in ment not to engage in a Business. ]-Where an agreesuch a way as to exhibit the points of law and equity ment consists of two parts, and one of them cannot be which the decisions in those cases serve to establish, enforced, the Court of Chancery will nevertheless enwith the grounds and reasons for those decisions. He force the other part, where it is quite distinct, and has not worded these placita in more general terms, be- mainly founded on a distinct valuable consideration, alcause it would be unsafe to deduce a general rule from though the part which cannot be enforced may have a single case, especially as the decisions are so fre- formed part of the inducement to enter into the other quently grounded upon the particular circumstances, part which is enforced. So that, where one person, in and because, if worded less specifically, the placita consideration of a sum of money, agrees not to engage would not answer the purpose of a Digest of the Cases, in a certain business within a certain locality, and the by acquainting the practitioner, as they will when other party agrees to employ him in that business at a framed as above, with the degree of resemblance or ma- salary so long as that business shall be carried on, terial difference between the cases from which they are or the latter shall diligently and faithfully attend to derived, and the cases occurring in practice with refer- it, the first part of the agreement will be enforced by ence to which such placita may be consulted.
injunction, although the second part may not be caAs these placita are designed not only for reference, but pable of being enforced. Rolfe v. Rolfe, 10 Jur. 61– for regular perusal, to acquaint the practitioner and V.C. E. student with the newly decided points of law and equity If a person agrees not to carry on, practise, or enas early as possible, it seems highly desirable to publish gage in a certain business within a particular locality, them quarterly, or as nearly so as opportunity will per- he violates his agreement if he acts as foreman to anmit. At the same time, the advantages for reference of other person in that business. Ib. an annual index will be easily and completely secured, See - Specific Performance." by embodying, at the end of the year, the principal and subordinate titles of the several placita in the Ĝeneral
ANNUITIES. Index to the miscellaneous portion of THE JURIST. Whether perpetual, or for Life only. 7—Where a testa
It has been suggested to the writer, that he should I tor wills that his property "produce” to his wife and
. another relative certain "annuities,” and to two of his about, and belonging to certain houses and lands; subchildren, for whom he makes no other provision, certain ject to be avoided on repayment of a sum of money on 6 annuities” for themselves and their children, (who a given day, or at such earlier time as the assignee shall are not then in esse), the said annuities, after the appoint by notice ten days before such time, with indecease of his wife and the other relative, to be equally terest in the meantime; and the deed contains a declardivided between his children, such annuities are notation, that, after default in payment of the said sum and mere life annuities, but are perpetual annuities, that is, interest, the assignee may take possession of, and hold gifts of so much property as will produce an annual in- and enjoy the said goods, &c., and also sell and dispose come to the amount specified; for it is clear that the of the same for payment of such sum, and interest and duration of the annuities given to the wife and the other expenses; and, further, that, until such default, the asrelative are not to be measured by the lives of the first signee may hold, make use of, and possess the said goods, takers, since the very same annuities are limited over &c.: the deed is a present assignment, bona fide inon the death of the first takers, as annuities continuing tended to pass the property at all events, and not a to subsist beyond that period; and it is obvious, that, fraudulent assignment, intended to defeat another creby the annuities given to the two children, a benefit ditor, or an assignment which will not pass the ownerwas intended for their unborn children as much as for ship until default in payment. But the deed cannot themselves; and yet it would be very inconvenient that operate as an assignment of goods thereafter to be the children of the testator's children should take as brought upon the premises. Gale v. Burrell, 10 Jur. cestuis que trust simultaneously with their parents: 198_Q. B. and the testator's children might die shortly after the Incomplete voluntary Assignment of Turnpike-bonds birth of the grandchildren; and, in that case, if the an- and Shares in a Company. 1-Where a person, by a nuities then dropped, the grandchildren would be de- voluntary deed, assigns turnpike-bonds and shares in a prived of all benefit from the testator's bounty in the company to a trustee, in trust for himself for life, and, very event in which they would most need it. So that after his death, for a relative, and delivers to the trusthe best way of effectuating the plain intention of the tee the bonds and share certificates, but such steps as testator, to benefit the grandchildren, is to give to their are required by the General Turnpike Act, 3 Geo. 4, parents the absolute interest in such an amount as will c. 126, s. 81, and by the rules of the company, in order produce the annuities; for, although there is no cer- to effect an assignment, are not taken, nothing passes by tainty, even in this case, that the grandchildren will the deed. Searle v. Law, 10 Jur. 1914V, C. E. take any part of the property in which the children have the absolute interest, since the children may other
CHARGE-See « Debts.” wise dispose of it in their lifetime, or render it liable to the claims of creditors, yet, by giving the absolute in
CHOSE IN ACTION. terest to the children, the grandchildren may, and, but Interest in a Partnership.-- Railway Share..-An for the fault of the children, will, take derivatively interest in a partnership. (such as a railway share), through them, by deed or will, or under the Statute of being a chose in action. is not assignable at law, 80 as Distributions. Stokes v. Heron, 12 Cl. & Fin. 161.
to enable the assignee to sue as a partner; but it is a Construction of a Codicil, with reference to the ques. thing of value, and may be made the subject of a valid tion whether it cuts down an Annuity given by Will to a contract. Tempest v. Kilner, 15 Law J. 10-C. P. Life Annuity. ]-Where a testator wills that his property produce an annuity to his daughter for herself
CONSTRUCTION. and her children, and it is held that this disposition, Meaning of the Words « Mines," " Minerals," and viewed by itself, gives a perpetual annuity to the “ Fossils.' _Where waste lands, to the soil of which, daughter; and, by a codicil, the testator makes a de- l including everything beneath the surface, the lord of claration, beginning with the copulative conjunction the manor is entitled, are allotted under an Inclosure “and,” stating, that in case the residuary devisee and
Act, which takes away from the lord all right to and inlegatee named in his will shall die without leaving issue
terest in the soil, except that it reserves to him all male, his will is, that, after the decease of his wife (who
mines and minerals of what nature or kind soever, is also an annuitant) and his daughter, his “remaining I wi
with the liberty of digging for and carrying away the property shall then be equally divided between” cer- lead ore, lead, coals, ironstone, and fossils to be gotten tain collateral relatives and their children: this subse- thereout: with a proviso that he shall keep the first quent disposition does not cut down the daughter's an- |
layer or stratum of earth separate, without mixing the nuity to a life annuity, or in any way affect it, but is a
same with the lower strata ; the word “mines" inmere substitution of other residuary devisees and lega- cludes quarries out of which anything is dug; and the tees for the one named in the will, in case of the death
word “minerals" includes stone, as also does the word of the latter without leaving issue male; for the words
“ fossils.” This construction derives support from a “my remaining property” mean that which has not
consideration of the object of the Act, which is simply been before disposed of, and exactly correspond to, and
to give the surface for cultivation to the commoners; are simply descriptive of, the “rest and residue” men- and it is greatly favoured by the proviso against mixing tioned in the will, and consequently have no effect upon the upper and lower strata.' The Earl of Rosse v.Wainthe preceding particular dispositions. Ib.
man, 15 Law J. 67-Exch.
CONTRACT.-See “ Agreement,” “Specific Performance." Good except as against Creditors.]-Although an assignment be fraudulent as against creditors, it operates
DEBTS. to pass the goods as against the party himself and Annuity included in the word “Debts.”]-Wher strangers. Bessey v. Windham, 6 Adol. & Ell. 166. appears, from certain letters and from parol evidence,
Whether a Deed be a present bona Fide Assignment. | that a testator, for valuable consideration, contracted to and whether it passes things subsequently to be brought on l grant an annuity, and he devises estates upon trust to the premises mentioned therein.] - Where a deed pur- / pay, satisfy, and discharge all debts, whether by bonu ports to assign household goods and furniture, and other or mortgage, or due on simple contract, in exoneration things (including some perishable articles) which at of his personal estate, the annuity is charged as a debt the date thereof are, or at any time during the con on the real estate. Moneypenny v. Mascal, 2 Coll. 210. tinuance of the security thereby created shall be, in,l Damages for a Breach of Covenant after the Corenantor's Death, recoverable as a Debt under a Charge for was prepared, that the debt due to the latter should be Payment of Debts. ]-Where a lessor covenants for quiet paid in full. Watts v. Hyde, 10 Jur. 127-V.C. B. enjoyment, and devises his real estates, subject to, and charged with, the payment of his debts, and after the
DEVISE. lessor's death the lessee is evicted, and mesne profits “ Heir or Heirs," a Designatio Personce. Where are recovered from him, and he subsequently recovers a testator, by a will made before the stat. 1 Vict. c. 26, damages against the lessor's executors, but the lessor's after devising particular estates in real property, has personal estate is insufficient to pay such damages, the devised the same to such person or persons as, at the lessee is entitled to have the loss sustained by him time of his decease, should be the heir or heirs at law from the breach of the covenant for quiet enjoyment of a particular individual; the words “heir or heirs at made good as a debt out of the real estate devised, law"are simply a designatio personæ; the words “ such under the charge for payment of the testator's debts, person or persons as at the time of my decease shall be" including, as constituent parts of such loss, the costs of depriving the former of the force and effect of words the action of ejectment, and the action for mesne pro- of limitation, which, but for the words last quoted, fits, and the action of covenant, and the action for as they would have possessed, in addition to the sense of certaining the value of the lease and of the crops on a designatio personæ: and hence the person answering the ground, and the value so ascertained, together with the description of heir of the individual named takes interest at 41. per cent on the same from the time when only a life estate, although the testator recites that the the same was so ascertained, and on such costs. Morse estate came to him from that individual, and although 1. Tucker, 10 Jur. 173–V. Ć. W.
it would seem most probable that he intended to give
back the ultimate fee to the family of that individual, DEBTOR AND CREDITOR.
on failure of his own family. Doe d. Sams v. Garlick, Superiority of the Title of Cestuis que Trust and of a 15 Law J. 54-Exch. Title by Set-off over an equitable Title of the Indorsee of a Effect of a Charge in passing the Fee.]-A devise of Promissory Note. ]-Where a trustee allows a sum of real estate, before the stat. 1 Vict. c. 26, subject to and money, to a part of which he is beneficially entitled, to charged with an annuity, will not pass a fee, without remain on a promissory note payable to himself only, words of limitation, by force of the words“ subject to and not to him or his order, and he afterwards, as a se- and charged with the annuity,” because, in this case, curity for advances, indorses the note to a person who the annuity is not charged upon the person of the deis both his own banker and the banker of the maker of visee, but only upon the estate; and, therefore, no arthe note, and who had no notice of the trust, and subse- gument can be drawn from the charge, that a fee was quently the maker of the note becomes a creditor of intended to be given. Ib. the trustee for goods sold, without notice of the indorsement of the note; in such case, as to the trust por DONATIO INTER Vivos–DONATIO MORTIS CAUSA. tion of the money secured by the note, the trust prevails
What will constitute such a Donation.]-It would against the banker's security, because the banker ac
seem that a gift which was intended to take effect at quired only an equitable title, and therefore no better
the same time and in the same way as a will cannot be title to the note, or the money secured by it, than the
a donatio inter vivos; and it would seem, that, to conindorser could rightfully confer, and, consequently, no
stitute an act a donatio mortis causâ, the subject-matter title as against those for whom he is a trustee, And, as
must be delivered, either in terms, or unequivocally in to the portion to which the indorser of the note is bene
effect, as a donatio mortis causâ. Hence, where a perficially entitled, the set-off of the maker of the note pre
son, a considerable time (two years, for instance) before vaiks against the banker's title, as regards the amount
his death, incloses certain securities, and a writing menof such set-off prior to the time of the former receiving I tioning the persons for whom they were intended, in a notice of that title; but, subject to the trust and the
wrapper directed to those persons, and places them in set-off, the banker has a lien or specific claim in equity
en or specific claim in equity a tin box in the presence of another person, whose name to the money secured by the note, and lying as a ba- |
is on the box, and gives the key to him, and, in his last lance in his hands. Moore v. Jervis, 2 Coll. 60.
sickness, sends the box and contents to that person, but Displacing Set-off.]—Where the debtor gives a pro- in the writing has made it clearly appear that he did missory note, and, as a collateral security, deposits a po- not intend the objects of his bounty to take any interest licy of assurance, and afterwards obtains the policy back, in his lifetime, and has accordingly dealt with the prohe does not thereby displace a right of set-off which he perty as his own in the intermediate time: in such had before the delivery back of the policy. Ib. case, the person to whom the box was delivered is
deemed to have had possession in the character of an DEBTOR AND CREDITOR, AND SOLICITOR AND CLIENT. agent only; and the transaction is not a donatio inter
Composition-deed.]-Where a debtor and his cre- vivos, because it was clearly intended as a testamentary ditors, among whom is his solicitor, execute a composi- act; and it is not a
act; and it is not a donatio mortis causa, because there tion-deed, whereby the debtor covenants to pay a certain is nothing to shew that the delivery was any other than sum annually for a certain period, and to insure his life a delivery to a mere agent, as such. Farquarson v. forth with for the aggregate amount so agreed to be paid Cave, 10 Jur. 63-V. C. B. In this case, the box also to secure the payment of such amount, and the deed contained title-deeds of property, part of which was decontains a proviso, that if the debtor shall fail in pay-vised to other persons; but it was not necessary to lay ing any of such sums, or in effecting or keeping on foot any stress on that circumstance. such insurance, the deed shall be void; and the solicitor neglects to explain to his client, the debtor, or to
ELECTION. ascertain whether the debtor understands, the obligation As to a Scotch heritable Bond. 1-Where a testator, by imposed on him by the deed, which it was the duty of a will made before the stat. 1 Vict. c. 26, devised all the solicitor to do, and the debtor does not insure his the residue of his real, personal, and mixed estate and life until after the payment of the first instalment, and effects, whatsoever and wheresoever, which he might only for the amount then remaining due, the solicitor be seised or possessed of or entitled to at the time of his cannot insist on the proviso for avoiding the deed, and decease, upon trust, as to a part, for his heir-at-law; may be restrained from prosecuting an action for his and, after the date of the will, a Scotch heritable bond, entire debt, even though there was a private agreement which, according to the law of Scotland, belongs to the between the debtor and the solicitor, when the deed l eldest son, as heir-at-law, was executed to the testator,