TRUSTEE RELIEF ACT, 10 & 11 VICT. C. 96.

Under the Trustee Relief Act, the Court has power to decide all questions that may arise concerning the fund in Court, just as in a suit, and may if necessary direct any issue to determine the sanity of any person, or for like purposes.

A suit is necessary if there are creditors or other unascertained claimants of the fund. In re Allen's Trust, li

USURY.

If a promissory note be given payable on demand for 1007., with interest at a higher rate than 57. per cent, per annum, and the debt and interest be further secured by a deposit of title deeds of land, the promissory note is good, but the deposit is invalid. This would have been so before 2 & 3 Vict. c. 37; for the stat. 12 Anne, c. 16, invalidated all contracts for the loan of money at a higher rate of interest than 5l. per cent. per annum, and the subsequent Acts of 3 & 4 Will. 4, c. 98, and 1 Vict. c. 80, excepting short bills and notes only, left all other securities, though for the same debt, to be affected by the 12 Anne, c. 16.

When title deeds were originally deposited to secure an usurious contract, and afterwards a further advance was made at a higher rate of interest, but upon a personal contract which was not void by the usury statutes, and it was subsequently agreed by parol that a mortgage should be made of the hereditaments to which the deeds related for both debts, with inter est at 51. per cent. per annum :-Held, that, the original deposit being void, the subsequent parol agreement could not be sustained as a fresh deposit, for the deeds must be regarded as having been from the first in the pos

VENDOR AND PURCHASER. See COVENANT, 1.

DISENTAILING DEED.

In a sale by the direction of the Court, the particulars of sale stated, that Lot 12 comprised a house "at present in the occupation of C., at a rental of per annum 421." The purchaser of this lot paid the deposit, and his purchase was confirmed by order absolute, and he then obtained an order for payment of the remainder of the purchase-money into Court. The purchaser afterwards discovered that C. was not tenant to the vendors, but to some person who claimed by an adverse title:-Held, that the description in the particulars of sale must mean that C. was tenant to the vendors for a limited period at a given rent, and that this was a representation so different from the fact, that it amounted to such bad faith on the vendors' part, as would induce the Court to discharge the purchaser from his contract. Lachlan v. Reynolds, 52

VESTRY.

A burial board, appointed under the 15 & 16 Vict. c. 85, laid before the vestry of the parish a proposal that the board should be authorised to borrow any sums of money not exceeding 20,000l., for their purposes. This proposal was not put to the vote by a show of hands, but was met by an amendment, that the matter should be referred back to the board to be reconsidered; and a show of hands being taken upon this amendment, it was carried by a majority. A division was then demanded, whereupon the chairman said, that there should be a poll upon the original proposal and the amend

VOLUNTARY SETTLEMENT.

ment together; and that the votes must be affirmatively for one or the other, and not negatively as to either; and that no further amendment could afterwards be received. A majority of affirmative votes were given for the original resolution:-Held, that the proceeding was too informal to authorise the burial board to borrow the money; for that no show of hands having been taken upon the original resolution, it could not properly be put to the poll, having regard to the provisions of the special Act regulating the proceedings of this particular vestry.

Held, also, that the manner of putting the resolution and amendment to the poll, and requiring only affirmative votes on each, was informal, because, the majority of votes being given for the original proposition did not prove that it was preferred to any other, but merely to that particular proposition which had been put as an amendment, and which was not a direct negative of it.

A "division" of a vestry, "to be taken in the manner prescribed by the 58 Geo. 3, c. 69," may be taken by a poll of all the ratepayers, such poll being an adjournment of the vestry.

At such poll, the original proposition and an amendment inconsistent with it, being the only one proposed, may be put to the vote, and affirmative and negative votes may be taken upon each, and in that way the sense of the voters may be ascertained.

Observations upon the best mode of taking the opinion of a meeting upon a resolution and amendment. Elt v. The Burial Board, St. Mary's, Islington, 449

VOLUNTARY SETTLEMENT.

See EXONERATION.

WARD OF COURT. 763

VOLUNTARY TRUST.

A man, in his last illness, a few days before his death, made a codicil to his will, giving certain benefits to his son-in-law A., and appointing B. his executor. On the same day, the testator drew a cheque on a plain sheet of paper for 9001., payable to B., to whom he owed 2007., and wrote on the same sheet: "A. 2001., B. 200l., executorship fund 500l." The cheque was presented and paid before the testator's death:-Held, that this was not a donatio mortis causâ, but a complete trust of 2001. in A.'s favour; and that it was not necessary that he should have any notice of it previously to the testator's death.

A donatio mortis causâ is subject to the donor's debts. Tate v. Leithead, 658

2. A voluntary assignment by deed of the assignor's interest in a sun of stock standing in the names of trustees, upon trust for him, is a complete transfer of such interest as between the donee and the representatives of the donor, although no notice of the deed was given to the trustees in the donor's lifetime; because no further act on the part of the donor was requisite to complete the gift.

In such a case the donee could compel the trustees to transfer the stock to him, without making the donor or his representatives parties to the suit.

If, however, the trustees, before notice of the deed, transferred the stock to another person, the donee would have no remedy against them. Donaldson v. Donaldson,

WARD OF COURT.

711

1. Where an infant ward of Court

VOL. I.

E. K. W.

enlisted in the East India Company's service, and was about to be sent to the East Indies, the Court ordered a habeas corpus to be issued, directed to the sergeant in whose charge he was, to bring up the body of the ward; and, on the return of the writ, upon a motion for the infant's discharge, made an order that he should not be removed out of the jurisdiction without leave of the Court; and directed that this order should be served upon the East India Company, and on their officer in command at the depot where the recruits were stationed; and that the motion should stand over until the next motion day; and, upon that day, the former order having been duly served, ordered that the infant should be discharged and delivered over to his guardian. Rochford v. Hackman,

308

2. It is a contempt of Court to remove an infant ward of Court out of he jurisdiction, even where he has enlisted in the army without leave of the Court, by sending him with the reigiment on foreign service.

A ward of Court having so enlisted, and having been sent to Ireland, upon the petition of his guardian for discharge of the infant, the Court concurring with the guardian in thinking, that, under all the circumstances of the case, it was better for the infant to remain in the army, ordered the petition, as to that part of it, to stand over, with liberty to apply; and that the guardian should continue as such; but that the allowance previously made for the infant's maintenance should be discontinued; and provided for the expenses of the guardian in the matter out of the income which had been till then applied for the infant's maintenance. Harrison v. Goodall, 310

WASTE.

See TENANT For Life, 2.

WILL.

See ANNUITY.
CHARGE.

COPYHOLDS.
ELECTION.

LEASEHOLDS, 1, 3.

POWER OF APPOINTMENT, 4.
RESIDENCE.

1. A devise to A. for life, remainder if 4. should die leaving issue to her said issue, to be distributed between them share and share alike, as three gentlemen learned in the law should affix the same; but if A. should die leaving no issue, in trust to sell and divide the proceeds between the grand-children of B. and C., share and share alike; but if D. should outlive A., then a part not to be sold till after the decease of D.:— Held, that A. took an estate tail; that the gift to the issue was not an absolute interest, for the power of distribution was not a power to limit the estate they were to take, but only to divide the land among them; but that the gift over was upon an indefinite failure of issue, notwithstanding the reference to D.'s surviving A., which might tend to shew that the gift over was to take effect on a failure of issue at 4.'s death.

by the three children of H. O. D., and also adversely by the five children of P. D., whose real name was P. J. D. P. J. D. and H. O. D. were both in the same degree of relationship to the testatrix, and she had given like legacies to their brothers and sisters. H. O. D. was dead at the date of the will:-Held, that the previous gift to Comodore P. D., and the fact that the gift was not to the children of "the said" P. H. D., together with the intention manifested in the will to provide for all the members of the D. family, was sufficient to enable the Court to decide, upon the face of the will, that the children of H. O. D. were intended, although there was no reference to him as "the late" H. O. D.

Held, also, that this construction did not strike out the name "P." but treated it as having been used by mistake.

Held, lastly, that extrinsic evidence of the intention of the testatrix was not admissible, although it might have been if there had been only one class of claimants. Douglas v. Fellows,

114

3. A testator bequeathed a sum of stock to trustees, upon trust, during sixty years from his death, if the law should allow, or, if not, then during the lives of his two sons and of the survivor, and twenty-one years after his death, to lay out the dividends in repairing and insuring the houses, &c. on his farms, called H. and S. (it being his desire, that, upon no account, should the timber of such farms be cut down during the said term of sixty years, on pain that the person so cutting such timber should lose all interest in the said estates, as if he were dead), and upon trust to pay the surplus, if any, of the said dividends equally among the persons for the time being in possession of

the estates under his will, during the continuance of the said trust; and immediately after the expiration thereof, to transfer one moiety of the said stock to the person then in possession of the II. farm, such person being one of his sons, or a descendant of a son; but if not, then to the descendants of the testator's brothers and sisters, and to pay the other moiety in like manner to the person in possession of the S. farm. And the testator devised the II. farm to the same trustees, in fee, upon trust for his son John, for ninety-nine years, if he should so long live, remainder to the use of his first and other sons in tail, with divers remainders over. And the testator devised the S. farm in like manner for the benefit of his son James and his issue. John and James, and their eldest sons, barred the entail in remainder in the said farms and resettled the same, and, the stock having been transferred into Court under the Trustee Relief Act, petitioned for the payment out of the fund to them:-Held, that, the fund being intended for the benefit of the sons and their issue, the period for the enjoyment of the capital had been accelerated by barring the entail, which had determined the restriction against cutting down timber. In re 133 the Trusts of Colson,

4. Bequest of residue in trust, after the death of the testator's wife, to be divided amongst all his children, including his son A. if then living, in such manner and in such proportions as the testator's wife should by will appoint, provided that the share assigned to A. should not be less than those of any of the other children; and, in default of appointment, to be divided equally among all the testator's children living at his wife's death, including his said son 4.

Moreover, if any child should happen to die previously to the death of the testator's wife, leaving children, such children to have the "share" of their late parent. And if all the testator's children should die under age, and without leaving children, gift over. The wife appointed the fund by will amongst all the children who should be living at her death. A. died in her lifetime, leaving children:-Held, that the power was well exercised in favour of the surviving children of the testator, and that the clause commencing "moreover" did not apply to the preceding limitation, but only to the gift in default; and therefore A.'s children were properly excluded. Fox v. Gregg, 2 Sugd. Pow. App. No. 23, distinguished. Neatherway v. Fry,

172

5. The word "money" in a will will not pass stock in the funds, unless its meaning is enlarged by the context.

"I bequeath to my brother J. the whole of my money for his life, at his death to be divided between my two nieces, R. and M.; my clothes to be divided likewise between them; my watch and trinkets for my niece M.; the longest survivor of the said nieces to become possessor of the whole money." The testatrix, at her death, had about 60%. cash, a considerable sum of stock in the funds, and some furniture and trinkets, and clothes: -Held, that the furniture did not pass by the will, nor the stock. Lowe v. Thomas, 369

6. The 24th section of the 1 Vict. c. 26, which provides that a will shall speak and take effect as if executed immediately before the death of the testator, unless a contrary intention appear by the will, will probably give an extended effect to what would have been a specific bequest of a class of personal property before the statute.

For instance, a bequest, since the Act, of all my stock," would probably pass all the stock of the testator at the time of his death; but a gift of all my stock which I have purchased," must be confined to stock actually purchased at the date of the will.

A will made since the statute contained the words, "I hereby exonerate my sister from all claims in respect of money laid out by me in improvements of the estates in Scotland, and which money has, according to the laws of Scotland, been charged thereon:"-He'd, that this exoneration only applied to moneys so charged at the date of the will, and not to money afterwards laid out and charged, nor even to money then laid out, but afterwards charged. Douglas v. Douglas, 400

7. A testator gave some pecuniary legacies, and devised a certain farm and lands to his wife, for such term and at such rent as his brother Robert should think fit, and then gave, devised, and bequeathed all the rest, residue, and remainder of his real and personal estate to his son James, and appointed him executor:-Held, that the residuary form of the devise to the executor made the legacies a charge upon the real estate, notwithstanding that a previous interest in real estate was given by the will. Francis v. Clemow, 435

8. A testator, by his will, directed that all his debts should be paid by his executrix thereinafter named; and then made certain specific devises, and gave to his wife a house and appurtenances, partly freehold and partly leasehold, for her life, and then over; and all the "rest and residue" of his real and personal estate the testator also gave to his wife, and appointed her sole executrix:-Held, that, on a deficiency of personalty to pay the testator's debts, the residuary