1898 In re LOBB. A'Beckett, J. no such power of attorney giving a continuing authority to apply. v. Counsel referred to the following cases :-Anthoness Anderson (b); Garrett v. Justices of Middlesex (c); Carmichael's Case (d). Irvine for the licensee-A license is a personal license and cannot be transferred except in accordance with the Act: Anthoness v. Anderson. Sec. 46 of the Licensing Act 1890 is a distinct prohibition against any person holding more than one license, and the effect of allowing a contract like this to stand would defeat the obvious intention of the Act. By sec. 102 the application must be made by the "holder of the license "—that is, the licensed person-and the licensee could not contract herself out of the provisions of the Act. A'BECKETT, J. This is a case in which the licensee of an hotel has executed a power of attorney, expressed to be irrevocable, constituting some person her attorney, with authority to apply on her behalf for a transfer of the license. This was given for valuable consideration. The person so authorized then appears in the Licensing Court making application for a transfer. The licensee by her counsel comes forward and says that she does not want this license transferred; no matter whether the authority given is valid or not, no matter whether it be irrevocable or not, she does not want the license transferred to the proposed transferree; she wants it to go to someone she may name. No suggestion is made that any condition has not been fulfilled under the power of attorney, or that she was under any misapprehension when the authority was given; it is not said that it is not a validly continuing power, but it is urged that under the Licensing Act she can say "I now appear at the Court, and you can do nothing without me, and I will not have this done." That is the position she took up, and that is the position which I gather the majority of the Court held she had a right to take up. I think the Court was wrong. The Act does (b) [1887] 14 V.L.R. 127, p. 142. (c) [1884] 12 Q. B.D. 620. (d) [1896] 2 Ch. 643. not require, and the decisions under the Act have held that the Act does not require, a personal appearance and a direct personal application by the licensee. There is no doubt that the license confers personal rights and personal obligations, and no matter how complete and undisputed the authority might be, any disqualification attaching to the licensee attaches equally to the person authorized by her to apply on her behalf. I do not say that none of the personal obligations required by the Act can be got rid of, but the Act recognizes and the Court recognizes the right of the person to apply under authority without the personal request of the transferror. To my mind that necessarily imposes on the Licensing Court the obligation to look into the authority of the person who comes forward and says that he is authorized to apply on behalf of a particular person. There may be cases of two rival agents, and the Court night then be obliged to say, "Send for the principal, she will settle the matter, and we cannot go on without her, and as there is a question of authority we must have her personally. present." I think in a matter of that sort the duty of the Court is to look into the authority so given. In the present case the duty of the Court was this-they had before them a document which purported irrevocably to constitute the applicant as attorney for the licensee, and it was within their jurisdiction to consider whether, under the circumstances, the authority given was a continuing irrevocable authority. Mr. Irvine admits that on the facts, so far as they appear here, if the Court had been applied to to restrain the licensee, that such an injunction on the facts would have been granted. Then if the Licensing Court was to use its mind upon the matter at all it becomes a question for them to consider whether the authority was given or not, and whether it was irrevocable or not. They would find that the person appearing on behalf of the licensee was fully and irrevocably authorized to act for her. Her counsel had to admit that she herself had no right whatever; she was doing an act which the law would declare to be a breach of contract. They ought further to have said that the licensing law does not require the presence of the licensee. Supposing this authority to be, as it is, a binding V.L.R., Vol XXIV. PP 1898 In re LOBB. A'Beckett, J. 1898 In re LOBB. A' Beckett, J. authority which the person who gave it had no right to revoke, then there is no objection to the exercise of that authority under the Act. The licensee having authorized a person to apply, and the authority continuing, her counsel appearing and stating that she does not wish the application to be granted will not deprive the Court of its jurisdiction to transfer the license. No reason has been suggested in this case as regards any personal matter affecting the transferree or licensee. I direct that the license be transferred. The costs of this proceeding to be paid by the licensee. Solicitors for applicant: Fink, Best & Hall. W. H. M. 1898 December 20. 1899 February 3. A'Beckett, J. [IN CHAMBERS.] NATIONAL TRUSTEES EXECUTORS AND AGENCY COMPANY OF Will-Payment of legacies out of real estate-Pecuniary legacies, insufficiency of A testatrix by her will "gave and devised" to an adopted daughter the sum of £200, and to a nephew the sum of £50, and in similar words various sums to a series of legatees. The personal estate was insufficient for the payment of these legacies, but the testatrix left real estate, undisposed of by her will, which would have been sufficient to satisfy the same. Held, that the real estate was available for the payment of the legacies. A testatrix by her will gave a legacy in the following words :-"To John O'Sullivan my executor fifty pounds; to his daughter W. my god-daughter fifty pounds;" then followed other legacies, and then the words, "and I hereby appoint John O'Sullivan executor of this my will." O'Sullivan did not prove the will, but authorized a trustee company to apply for and obtain administration with the will annexed. O'Sullivan gave instructions for the funeral, bought land for the grave, and intended, in the first instance, to act as executor, but afterwards nominated the company to act. Held, that assuming the legacy was given to O'Sullivan in his character as executor, he was not entitled to the same under the circumstances. Held further, that evidence was admissible to rebut the presumption that the legacy was given to O'Sullivan in his character as executor. An affidavit was filed deposing that the testatrix had on various occasions expressed her gratitude for services rendered by O'Sullivan, and had told him that he would find she had not been unmindful of them, and that in a prior will, superseded by the present will, she had left him a legacy of fifty pounds, and that he was not therein appointed executor. Held, that such evidence was sufficient to rebut the presumption that the legacy was given to O'Sullivan in his character of executor only, and that he was entitled to the same. 1898 NATIONAL AND AGENCY COMPANY OF AUSTRALASIA LIMITED v. DOYLE. This was an originating summons taken out by the National Trustees Executors and Agency Company of Australasia Limited for the determination of the following questions:-(1.) Are the A'Beckett, J. pecuniary legacies mentioned in the will of Charlotte May Harris payable out of the proceeds of her real estate? (2.) Has the said C. M. Harris died intestate as to her real estate? (3.) Is the defendant John O'Sullivan entitled to the legacy of 501. bequeathed to him by the said will, notwithstanding that he has not taken out probate of the will or acted as the executor thereof? (4.) What is the duty of the plaintiff with regard to the real estate? (5.) Is the real estate which had been mortgaged by the said C. M. Harris applicable for the payment of the mortgage debt in priority to any personal estate left by the said C. M. Harris ? The affidavit filed on behalf of the plaintiff stated that letters of administration of the real and personal estate of C. M. Harris with the will annexed had been granted to the plaintiff' company. That the company had been authorized so to apply by John O'Sullivan, the executor named in and appointed by the will. The terms of the will, so far as material to this report, were as follow:-"I give devise and bequeath unto my adopted daughter K. J. T. Doyle now in West Australia two hundred pounds; to my nephew S. L. Cole fifty pounds;" then followed several further legacies to various legatees, then the will proceeded "To John O'Sullivan my executor fifty pounds and to his daughter Winiefred my god-daughter fifty pounds." Then again followed several further legacies to other legatees, and concluded thus—“ And I hereby appoint John O'Sullivan of Melbourne civil servant executor of this my will." The testatrix at the time of her death was possessed of real estate of the value of 996l., and was possessed of personal estate of the value of 651. The debts amounted to 1617., which 1893 NATIONAL TRUSTEES EXECUTORS AND AGENCY COMPANY OF AUSTRALASIA v. DOYLE. included a sum of 150l. borrowed on the security of part of her real estate. The defendant Cole was sued as representing the next of kin, and the defendant Doyle as representing the pecuniary legatees. An affidavit was filed on behalf of the defendant O'Sullivan, stating that O'Sullivan had at first intended to act as executor, had given directions for the funeral and bought land for the grave, but had afterwards nominated the plaintiff company to A'Beckett, J. apply for and obtain letters of administration with the will annexed. There was also a statement that the testratrix had acknowledged the services rendered by O'Sullivan, and had told him that he would find she was not unmindful of such kindness, and in a former will, which was superseded by the present will, she left O'Sullivan a legacy of fifty pounds, and it appeared that in such will O'Sullivan had not been appointed executor. The reading of this affidavit was objected to during the argument but was allowed by the Judge to be read. Higgins for the plaintiff-The question is whether the real estate is chargeable with the payment of the pecuniary legacies. In the case of Inchiquin v. French (a) it was decided that personalty is the only estate chargeable with the payment of pecuniary legacies. That was the old rule, and this rule was held to be still applicable in the case of In re Cameron (b). Some argument may be raised as to the effect of the Administration Act 1890, but the effect of the consolidation of the existing statutes is not to change the law in existence at the time of such consolidation. Then, as to the right of the defendant O'Sullivan to get the legacy of 50l., it has been held that if there be a legacy given to a person who is also named as executor, unless that person takes out probate, he cannot take the legacy In re Appleton (c). Weigall for the defendants Doyle and O'Sullivan-It may be that in several English authorities the principle as to personalty being the only fund available for the payment of (a) [1744] Ambler's Rep. 37. (b) [1884] 26 Ch. D. 19. (c) [1885] 29 Ch. D. 893. |