Lord Chancellor, and Court of Appeal 3 De Gex, Mac. & Gord.

Part 2.

1. Annuity- whether for Life or Perpetual - Wills Act (7 Will. 4. & 1 Vict. c. 26. sec. 28). 2. Covenant to settle intended Wife's after-acquired Property. 3. Covenant to settle Wife's after-acquired Property — Legacy to Wife's separate use. 4. Debt whether by Simple Contract or Specialty. 5. Directors of Railway Company - Powers of over Shares put at their disposal by Shareholders Chairman of Company must not profit by his fiduciary position-must render Accounts. 6. Election Dower Annuity.

7. Escrow. 8. Joint-Stock Company Act, 7 & 8 Vict. c. 110. secs. 25 & 26. O General Liability of Shareholders to Creditors. 9. Married Woman Separate Estate General Power of Appointment by Will-Liability to Debts. 10. Married Woman Separate Estate-6 & 7 Vict. c. 73. s. 37— Taxation of Costs. 11. Mortgagor and Mortgagee-Tender of Sum dueRedemption-Costs. 12. Mortgagor and Mortgagee-Death of Mortgagor without Heirs Intestate Mortgagee entitled against Claim of Crown by Escheat. 13. Mortgagor and Mortgagee- Disclaimer - Costs. 14. Mortgagor and Mortgagee Release of Vendor's Covenant for quiet Enjoyment by

19. Surety20. Voluntary

Mortgagee. 15. Mortmain Charity Establishment of. 16. Power of Partition-does not include Power of Sale. 17. Practice-- House of Lords rehearing on Allegation of Fraud. 18. Surety. Release of. new Securities-whether released by Creditor giving up. Trusts. 21. Waste-Active-Permissive-Tenant for Life Will-Construction-Next of Kin - Period of Distribution. 7 Will. 4. & 1 Vict. c. 26. s. 24.

Repairs. 22. 23. Wills Act,

Annuity Whether for Life or Perpetual- Wills Act, 7 Will. 4. & 1 Vict.

c. 26. s. 28.

It has been held by Sir W. P. Wood, V. C., that the 28th section of the Wills Act (7 Will. 4. & 1 Vict. c. 26.), which enacts that "where any real estate shall be devised to any person without any words of limitation, such devise shall be construed to pass the fee-simple, or other the whole estate or interest which the testator had power to dispose of," applied to the devise of an existing estate or interest, and not to an estate or interest which the testator, by his will, creates de novo; and, therefore, a gift by will since the statute of an annuity to a person without words of limitation, but which was by the same will charged upon real estate, is not a devise of a perpetual annuity or rent-charge, and is a gift of an annuity for life only, as it would have been before the statute. See Kerr v. The Middlesex Hospital, 2 De G., Mac. & G. 19.; L. R. 186.

2. EX PARTE BLAKE. 16 Beav. 463.

Covenant to settle Intended Wife's after-acquired Property.

There was a covenant in a marriage settlement, that in case at any time "thereafter" during the coverture, any real or personal estate should "descend, come to, or vest in" the wife (then an infant), it should be conveyed, assigned, and assured upon the trusts of the settlement. It was held by Sir J. Romilly, M. R., to include the proceeds of real estate taken by a public company, to which the wife, at the execution of the settlement, was entitled in remainder. His Honour, after referring to Hoare v. Hornby (2 Y. & C., C. C. 121.), Otter v. Melvill (2 De G. & S. 257.), Grafftey v. Humpage (1 Beav. 46.), James v. Durant, (2 Beav. 177.), said that the case of Blythe v. Granville (13 Sim. 190.) was not distinguishable from the case of Ex parte Blake, and that the plain and rational meaning of the words "come to" included property of which the possession was to come to the wife during

the coverture, and although the right thereafter to possess it was then vested in the wife. That if the sum of money was to be treated as personalty, it was bound by the covenant of the husband, and ought to be transferred to the trustees, on the trusts of the settlement. The Court could not hold the money to be real estate, for the purpose of avoiding the covenant of the husband, and then to treat it as personal estate, for the purpose of avoiding the necessity of the wife taking such steps, with the consent of the husband, as would be necessary for the purpose of obtaining possession of it, if it were, in truth, land.

3. RAMSDEN V. SMITH. 2 Drew. 298. Covenant to settle Intended Wife's after-acquired Property Legacy to Wife's separate Use.

In a marriage settlement, it was agreed and declared, and the husband for himself, his heirs, executors, and administrators, covenanted, promised, and agreed with and to the trustees, that if any real or personal estate whatsoever should, during the intended coverture, descend or devolve to or vest in the intended wife, or in any person in trust for her, or to or in the husband in her right, then the husband should make, do, and execute, or cause or procure to be made, done, and executed, or join or concur with the intended wife in making, doing, and executing all such acts, deeds, conveyances, &c., as should be necessary for settling such real and personal estate upon the trusts of the settlement. Afterwards a legacy was left to the wife for her separate use. It was held by Sir R. T. Kindersley, V. C., that the legacy did not come within the agreement and covenant to settle contained in the settlement. His Honour, after examining the cases of Douglas v. Congreve (1 Keen, 410.), and Thornton v. Bright (2 My. & Cr. 254.), where Lord Langdale and Lord Cottenham had come to the same conclusion upon somewhat similar cases, distinguished them from the case of Butcher v. Butcher (14 Beav. 222.), where, by the clause in the settlement, it was "agreed and declared by and between the parties thereto," and the intended husband "covenanted with the trustees, that in case any personal property should thereafter, during the said intended coverture, come to or vest in the intended wife, or in the intended husband in her right, or by the rights of marriage, the same should be paid, assigned, or transferred by all proper parties, without delay, from time to time," to the trustees, upon the trusts of the settlement. The Master of the Rolls held that the wife was as much bound by the covenant as

the husband, upon the ground, as stated by the Vice-Chancellor, that "it was not the covenant of the husband only, and was, moreover, a covenant and agreement, not that the husband alone would do certain acts, but that the property which should come to the wife should be settled;" the learned Vice-Chancellor, after referring to Ewart v. Ewart [not reported] before Vice-Chancellor Wood, and Milford v. Peill (2 Weekly Reporter, 181.), concluded his judgment with the following observations: "It appears to me that, looking at the instrument itself, independently of any authorities, the intention of the parties was this, that inasmuch as any property coming to the wife being personalty, and any property coming to the wife being real property, would, as to the former absolutely, and, as to the latter, in a modified form, become the property of the husband (I mean, as to realty, become vested in the husband during the coverture), the intention was that that property which the husband would have any power over, or with respect to which any act of his might be necessary to vest that property, should by him, and by acts done either by himself or by those whom he had a right to compel to do the acts, be settled; but that it was not intended to settle any separate property. When I look at the authorities, concurring as I do in every one of them, not one of those authorities contravenes the view I have taken; on the contrary, it appears to me the principle established by those cases is the true principle, which, independently of them, I should have arrived at, and which is the very principle on which it is my intention to act in deciding this case."

A deed by which new trustees were appointed, recited that they had agreed to become trustees, and then assigned the trust premises to them to hold on the trusts of the original deed. There was no express agreement or declaration that they would execute the trusts. Held by Sir R. T. Kindersley, V. C., upon the authority of Ady v. Arnold (18 L. R. 421.), decided by Lord St. Leonards, that a debt created by a breach of the trust was not a specialty debt.

5. THE YORK AND NORTH MIDLAND RAILWAY COMPANY v. HUDSON. 16 Beav. 485.

Directors of Railway by Shareholders

Company - Powers of over Shares put at their Disposal Chairman of Company must not profit by his Fiduciary Position-Must render Accounts.

By a resolution passed at a General Meeting of a Railway Company, of which the defendant Hudson was chairman, 12,050 shares were to be "at the disposal of the Directors."

Sir J. Romilly, M. R., with regard to the question whether a public meeting of shareholders had power within the scope of the Act of Parliament and the partnership thereby created and incorporated to bind absent persons, or even a minority, in disposing of the funds of the Company, said that that question did. not in his opinion arise in this case, but he was anxious that nothing should fall from him to lead to the conclusion, that the Court, consistently with the principles which it administered, could sanction such a proceeding. The duties and powers of the Directors and the shareholders were defined, with reasonable accuracy, in the statutes applicable to the subject; and the proper and becoming mode of proceeding in the case of services as great as could be conceived, and as were there said to have been performed by Mr. Hudson, was that the individual shareholders should from their private funds or shares contribute such sums of money, or give such shares as each might think fit towards creating a gratuity to reward such persons.

With respect to the Directors not making a profit of the shares, his Honour observed:

"The Directors were not, I think, intended to be made liable in case they had, through an error of judgment, omitted to realise advantages from them which might have been obtained; but they were, in my opinion, bound to be ready, at all times, to explain their conduct in this matter to the shareholders, and, above all, on no principle could they derive to themselves, directly or indirectly, any personal or pecuniary advantage from the mode in which they might dispose of these shares."

With respect to part of the shares as to which "it was insinuated in the pleadings and asserted at the Bar," that it had been applied as secret service money, for the purpose of enabling the promoters of the Bill to pass it through Parliament, his Honour observed, "that if practicable, it is a highly improper