No. 489-VOL. X.

PRICE 18.

We regret the rejection of the Charitable Trusts Bill, which took place in the House of Lords last Monday, not on our own account, as we are neither trustees nor beneficiaries of any public charity, nor a retired Calcutta judge, nor a Vice-Chancellor, nor a Serjeant-at-law, nor even a Barrister of twelve years' standing. But we regret its rejection, because it leaves immense masses of property, that, in our humble opinion, ought to be protected and managed, totally without protection, and managed tant bien que mal.

The objections made to the bill by its noble and learned opponents, were of various characters. Lord Cottenham's principal objections (though he had many of detail) appears to have been to the creation of an expensive commission, while, according to him, the Court of Chancery is in a state of such superabundant strength, as to more than suffice for the work intended to be cast upon the Charity Commissioners. His Lordship meets the objection, that Chancery cannot be resorted to on account of the expensive character of its proceedings, by suggesting, that, for the cases intended to be included within the jurisdiction of the commissioners, no fees shall be taken in Chancery; but, under what arrangements of the machinery of Chancery he would have small charities administered, he does not explain.

Another objection is made by another noble and learned Lord, which we are very glad to see made, because it calls the attention of the public to a grievance having a far more extensive effect, than that of the non-existence of any practically controlling jurisdiction over the smaller charities. The Lord Chancellor, said Lord Campbell, "had confined himself almost entirely to that part of the bill which referred to small charities; and here he (Lord Campbell) allowed that some measure of this VOL. X.

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sort was necessary. Things ought not to remain as they were. It was a reproach to the law of this country. But it was not in the appointment of a commission of this sort that a remedy was to be found; it was in the reform of one of the regular tribunals of the country. It was allowed on all hands that his noble and learned friend (Lord Cottenham) had administered equity to the great satisfaction of everybody, and yet he had declared that the Court of Chancery was the best tribunal to which application could be made for the correction of abuses in charities. No doubt, it was an admirable tribunal; there was a careful investigation, a patient hearing, and justice was administered. The only objection was, the expense of litigation. The obvious remedy, then, was to diminish that expense. But charities were only specimens of what might be said of the Court of Chancery with regard to any small sums of money recoverable in equity. If a person had a legacy of 50l., to recover it by bill in equity would lead to a certain loss of a larger sum. The proper remedy, then, would be, to allow justice to be cheaply administered." Lord Campbell, therefore, objects to the Charitable Trusts Bill, not because the Court of Chancery can do the required work without alteration, but because he thinks the reform ought to proceed in the direction of reforming the machinery of Chancery itself, instead of supplying its admitted defect by the substitution of an assistant piece of machinery.

Now, if the late Lord Chancellor of Ireland means say, that an entire revision of the system and machinery of Chancery, for all purposes, should be effected, then, firstly, we should say, that we humbly dissent from his Lordship's view; and, secondly, we can wish him no pleasanter task for a vacation amusement, than to draw a general Chancery Reform Bill. But, if his Lordship merely means, as we conceive he does, that not only for administering charitable trusts, but for

dealing according to the principles of equity, with all trust property of small amount, much public benefit might result from a simplification of Chancery procedure, then we perfectly agree with the noble and learned Lord's conclusion, and cannot too strongly express our desire,—a desire which we are satisfied is in unison with that of thousands of cestuis que trustent and a large portion of the Profession,-that his Lordship, or any other learned Lord possessing similar zeal, similar good intentions, and as indomitable a perseverance, would undertake to prepare a bill for adapting such machinery as the Court of Chancery already possesses, for applying the jurisdiction of equity to adjudicate in all matters of trust property of small amount.

Let us take an imaginable case of the inapplicability of the Court of Chancery, and the non-existence of any other tribunal, and consequently of the denial of justice, in matters of private trust property. Suppose a testator to bequeath a small personal property, partly consisting of money in the funds and partly of an unfinished literary work, among several chlidren, with not very clear directions to one of them, in whom he has confidence, to complete his work, and some corresponding advantages to that one. Suppose some of the children daughters, and married: the share of one of them bequeathed to her for life, in terms which leave it doubtful whether it is to her separate use or not. As to the other married daughters, let their shares be clearly not to their separate use; and, as to all, suppose remainders to children, some of whom are infants. The testator directs a sale of his literary production in certain events, and, in certain others, a division of its profits, and appoints executors and trustees. The husband of one of the daughters whose shares are not given to their separate use becomes insolvent, and then the married daughters, whose shares are bequeathed to their separate use desire to purchase up the shares of the others. And, if they do not, no one will find it worth while to complete the work and realise its value; and, quâ assets, it will be lost. Now, suppose it, in the first place, not to be clear that the events in which the power of sale arises have taken place; it is sufficiently manifest that a state of confusion will exist, in which, to determine how a sale is to be carried into effect, who are sufficient conveying parties, and the like, will offer questions of so puzzling a character, that the trustees could never be advised to act, nor the purchaser to purchase, unless the first are prepared to run the risk of being called upon to refund at some future period the value of the whole, and the second to pay their money and get no title. And suppose, in the second place, the value of the whole matter in question to be 150%. or 2007.

The case that we are putting is not a wholly imaginary one, and is but a specimen of thousands more or less complex that occur yearly, in which property becomes valueless to families, to whom, small though it may be in amount, it is much by relation to their circumstances. It is needless to say that a suit in Chancery to obtain the direction of the court in such a case, would not merely be a foolish thing; it would be an impossible thing; for the fund would not be a sufficient security for the costs, and a prudent solicitor would not even undertake such a suit.

Now, what is the reason, in a case of this sort, of the disproportionate expense? The reason is this. There must be a bill framed in the usual way, setting forth all matters necessary to shew, upon the face of it, the title of the plaintiff and the ground of the conflicting claims. To this all the persons interested must be parties, as much as if the property at stake was many thousands. All the defendants must put in answers fully answering the bill; all must appear by separate must be furnished with full briefs of the pleadings. counsel at a preliminary hearing, and all the counsel There must be a decree for inquiries, if there are, as there always are in poor cases, any questions as to classes of claimants. There must be an inquiry before the Master, conducted in the usual manner; and, lastly, there must be a second hearing, with a repetition of all the array of counsel for all the different parties, to argue the claims of such parties.

Now, all that is really wanted in such a case is, firstly, to ascertain that all the persons who may be interested are before the court; and, secondly, to have the claims of all those persons properly presented to the court; and this might be done by a very simple and inexpensive process.

The first step might be the presentation of a very short petition, stating merely the fact that A. had died and made his will; accompanied by a copy of the will, and any other documents on the effect of which a decision was desired, and by a schedule of the persons or ion of the court was desired on the rights of the parties, classes of persons claiming; it would state that the opinor that a decree for sale was desired, or it would shew whatever might be the relief desired. On this petition (which might be drawn by counsel or not as the parbe opened by counsel in court) an order of course might ties should think fit, but which should not require to be obtained, referring it to the Master to inquire into the matter of the petition, and to order accordingly. The Master should then have power to make the necessary inquiries, to ascertain that the proper parties were before the court; and having them all before him, him, at which each class should be represented. At to group them in classes, and to direct a hearing before that hearing the parties should be allowed to attend by counsel, care being taken, by proper rules as to costs, to limit the expense incurred in retaining counsel. The decision of the Master should be final, unless he thought fit to allow an appeal, which should not, however, go beyond one Judge of the court; and the Master should himself settle a special case for appeal, so as to confine it to the points absolutely necessary to be discussed. The party desiring the appeal should make a deposit, which, in the event of his failing, should go towards paying the costs of the other parties. the fund should pay the costs. It would, of course, be If he succeeded, he should have back his deposit, and essential to the working of such a scheme, that the Master's Office should be an open court.

We have no doubt that the ideas above thrown out will, in many of their parts, appear crude, and in many they will be thought hostile to the interests of the Prothat they are obviously not offered as a complete sysfession. On the first point, we will merely observe, tem, but merely as the germs of a system. On the second, we would observe, first, that, even if the interests of the Profession were to be injured by any reform that should open the doors of equity to the poor, that would be no obstacle to its introduction; and, serender the jurisdiction of Chancery practically applicondly, that a simplification of procedure which should cable for adjudicating between claimants where the amount of the fund varies from 100%. to 300%., would be much more likely to double, than to diminish, the emoluments of Chancery practitioners.

A REPOSITORY OF POINTS IN EQUITY AND CONVEYANCING,

Designed to combine the Advantages of an Abridgment of, and an Index to, the recent Cases, and of an original Statement of the Points established thereby.

(Continued from p. 188).

HUSBAND AND WIFE. Mortgage of the Wife's Chattels Real.]—Where husband and wife assign chattels real, by way of mortgage, to some shares in which the husband is entitled in right of his wife, while to others the wife is entitled for her separate use, and the mortgage-deed contains a proviso for redemption and re-assignment to the husband and wife, or either of them, their, his, or her executors, administrators, and assigns, on payment of the mortgagemoney by the husband and wife, or either of them, their, his, or her executors or administrators, or any person or persons on their, his, or her behalf; with a power of sale, and a declaration that the surplus money, if any, arising from the sale, shall go to the husband or wife, their executors, administrators, or assigns, according to their respective interests; and the husband dies in the wife's lifetime, without having paid the mortgage-money: the mortgage does not amount to a complete reduction into possession, but the wife, according to the plain intention of the deeds, is entitled by survivorship to the equity of redemption. Clark v. Burgh, 2 Coll. 221.

Deed of Arrangement, securing to the Wife the Means of keeping up an Establishment of her own, in consideration of the Abandonment of Proceedings against the Husband-If a deed of arrangement is executed by husband and wife, by which, in consideration of the discontinuance of a suit instituted by the wife for a divorce for cruelty, and of the waiver by the wife of other intended proceedings for obtaining a proper provision for herself and her children, and for the prevention of disputes, a leasehold house is assigned to trustees, for the accommodation of the wife and her children, as their residence, and by which a large annual sum of money is to be raised out of the real estates of the husband, and paid to the wife for her sole and absolute use, independently of her husband, who has other estates of greater value, and by which it is declared that the wife shall, out of such sum, keep up an establishment in the house so assigned, for the benefit of herself and her children, in such a manner as she shall think fit, and pay certain other expenses of herself and her children; and that, if she shall not require the whole of that sum, the surplus shall be paid to the husband; and that the husband shall be at liberty to partake of the benefit of the establishment so long as he conforms to the spirit and intention of the deed; such deed is not illegal or ineffectual. It is not contrary to the policy of the law; for it does not even amount to a deed of separation; and though it considerably alters the original relation between husband and wife, yet that is the case with even the ordinary provisions for the separate use of the wife. Nor is it void for want of a consideration, for discontinuance and waiver of proceedings constitute a sufficient consideration. Jodrell v. Jodrell, 15 Law J. 17-M. R.

IMPLICATION.

Implied Estate during Widowhood in Real and Personal Property.]-Where a testator devises real estate to his sons, but wills that they be not put in possession so long as his wife shall remain his widow; and (in varied but substantially the same terms) wills that different portions of his personal estate be divided between his children on her death or second marriage; his widow will take an estate by implication in the real

and personal property for her own benefit during widowhood, although the will contains a direction, that, in a particular event, (such as that of her giving of his real estate shall pay her a certain annual sum up a farm which the testator occupied), the devisees out of it during widowhood. Cockshott v. Cockshott, 10 Jur. 41-V. Č. B. See "Legacies."

INJUNCTION.

Payment of East India Bonds.]-The Court of Chancery has power to restrain the East India Company from paying over the principal and interest secured upon East India bonds to a person who has fraudulently got possession of the same. Glasse v. Marshall, 15 Law J. 25—V. C. E.

Injunction Bill by a Lessee of a Bed of Coals against another Lessee thereof.]-Where a party claims to be lessee of a bed of coal, but another party also claims to be lessee thereof under a prior lease granted by an ancestor of the lessor of the first-mentioned party, and is working such bed of coal accordingly, the Court of Chancery will not interfere in behalf of the former to restrain the latter from working the coal, especially where the bill for an injunction is not filed till a year after the latter commenced working. Haigh v. Jaggar, 2 Coll. 231.

INSURANCE.

Insurance on the Life of a married Woman by an Assignee of her reversionary Interest.]-Where husband and wife assign the reversionary interest of the wife in personal property to secure a debt of the husband, and the creditor afterwards insures the life of the wife in a sum less than the debt, without the knowledge of the debtor or his wife, and receives that sum on her death in her husband's lifetime, the husband is not entitled to have that amount set off against the mortgage debt; for, although the creditor had an insurable interest in the life of the wife, so that the policy was not void under the stat. 14 Geo. 3, c. 48, for want of such an interest, yet his right was only to effect a policy which should guarantee him against the loss he might have sustained if the wife had survived the husband; and, as the risk ceased when she died in the lifetime of her husband, the guarantie then became satisfied. Henson v. Blackwell, 4 Hare, 434.

LEASE-See "Power."

LEASEHOLDS FOR LIVES.

Expenses of renewing a Life which dropped during the possession of a prior Tenant for Life.]-Where lands holden under a lease for four lives, renewable upon payment of a fine, are devised upon trust for a person for life, such person filling up the lives as often as any shall fall in; and, subject to such life interest, upon trust to let and set the same; and, after paying the rents and land-tax and keeping full the lives, to pay the residue to another person for life; and, after his decease, to sell the estate, and divide the proceeds among certain other persons; and the first tenant for life dies insolvent, without having filled up a life which had dropped, and then another life drops, two new lives must be substituted; but the second tenant for life is only bound to pay the expenses of putting in a new life in the room of the life dropped during his possession of the estate; and the expenses of putting in a new life in the room of the life which dropped during the possession of the first tenant for life must be borne by the corpus of the estate, with interest thereon, at the rate of Bl. per cent., from the death of the nominee whose life first dropped to the death of the other nominee. Wadley v. Wadley, 2 Coll. 11.

See" Vendor and Purchaser."

pendent on their surviving their parents or a prior taker, yet, where the language of the will expressly and unequivocally makes the interests of the children, or even of some of them and not of others, dependent on that contingency, and there is nothing in the will to indicate a contrary intention; there, the court must give effect to the intention so expressed, however antecedently improbable it may be that such was really the testator's intention, and whatever hardship may be thereby occasioned. Thus, where a testator directs his trustees to set apart, out of his residuary personal estate and the proceeds of the sale of his real estate, a sufficient sum to produce an annuity for his widow, and directs that they shall stand possessed of the residue during her lifetime, and of the whole after her decease, upon trust to pay and divide the same unto and equally between and amongst all his children as and when they shall severally and respectively attain the age of twenty-one years, and to their several and respective executors, administrators, and assigns; but, in regard to such of his children who had already attained the age of twenty-one years, he directs that the shares of such his children shall be paid to them respectively at the expiration of twelve months after the decease of his wife; with a limitation over in favour of their issue, in the event of the decease of any or either of his said children, before he, she, or they, or either of them shall have received or become possessed of their divisional share as aforesaid; and with benefit of survivorship between and among such children, in case of their not having issue who shall attain twenty-one; the children who had attained twenty-one at the date of the will take vested interests, liable to be devested in the event of their decease before the time fixed for the actual payment of their shares; and the children who had not attained twenty-one at the date of the will take vested interests on their attaining twenty one not liable to be devested. Rummell v. Gillow, 15 Law J. 35-V.C. W.

Interest on such a Legacy before Devestment.]-Persons who take vested interests in personal estate liable to be devested are entitled to the interest which accrues from the period when they take vested interests until the devestment happens. Ib.

Necessity for surviving a prior taker-Lapse to Heir of Legacy of Produce of Sale of Real Estate.]Where a testator, after directing the conversion of real estate, gives the proceeds to children of a person (without naming them) that are living at such person's death, "in the following manner;" and then he mentions the shares which some, whom he names, are to take; the shares in the unconverted real estate of those who die in their parent's lifetime will not pass to their representatives, but, if the will contains no residuary devise, will lapse to the heir-at-law, who will take them as personal estate. Hatfield v. Pryme, 2 Coll. 204. Giving over of accruing shares-Necessity for surviving in order to take a gift over.]-Where a testator bequeaths personal property upon trust for a family of children who shall be living at a particular period for life, and, after the death of any of them, upon trust to stand possessed of a proportionate share for the issue of such child or children so dying, absolutely; but, in case of such child or children dying without leaving issue, then, as to the proportionate share of the child so dying, upon trust for the other children then living, and the issue of such of them as may be then dead; with a limitation over of "the share, as well original as accruing," of the last surviving child, in case none of the children shall leave any issue; in such case, the accruing shares of the children who live till the specified period, and then die without issue, do not go over to the surviving children with the original shares, but belong to the representatives of the children so dying without issue;

LEGAL ESTATE-See "Married Women."

395.

There is another case on the subject of maintenance, namely, Williams v. Edwards, (2 Coll. 176); but it did not seem necessary to abstract it.

MARRIED WOMEN.

Devise in Fee to Separate Use, with Prohibition of selling or incumbering.]—Real estate may be devised for the separate use of a married woman, although it be devised to her in fee; and, if a prohibition of selling, charging, mortgaging, or incumbering be annexed to such a devise, whether such prohibition is confined to the period of coverture or expressed indefinitely, and whether it precedes or follows the words relating to the separate use, she will be disabled during the coverture from making any sale, charge, mortgage, or incumbrance, to take effect against her estate during the coverture. Baggett v. Meux, 1 Coll. 138, affirmed by L. C., 10 Jur. 213.

Limitation to Trustees “in Trust for" a married woman, for her Separate Use, giving her the Legal Estate.]— Where land is limited, by a marriage settlement, to trustees and their heirs, to the use of the intended wife until the marriage, and after the solemnization thereof, "in trust for" her for life, for her own sole and separate use, independent of her husband, his debts, control, or enjoyment; the trustees do not take the legal estate during the life of the wife, but the use is executed in her by the express words of the Statute of Uses, and the subsequent words constitute a condition which is void at law. Williams v. Waters, 14 Mee. & W. 166.

MISTAKE.

Substituting a new Charge, without extinguishing the former one.]-Where, by a deed of settlement before marriage, a charge is created in favour of the father of the lady, to the amount of the portion given her by