land at Ballarat, moneys deposited in the Savings Bank and on fixed deposit with the Colonial Bank of Australasia in Melbourne, and some preference shares in this bank. The motion asked that the Master might be empowered to collect, get in, and realize the real and personal estate of the lunatic in Victoria, and remit the proceeds to the Public Trustee in New Zealand. Notice of the motion was not served upon the lunatic. Starke in support-The Court in Victoria will, by reason of the comity of nations, recognize the appointment of the Public Trustee. The position of the Public Trustee is defined by the New Zealand Act, 58 Vict. 1894 (No. 50). Sec. 29 of this Act shows how funds in his hands may be dealt with. All the moneys received by the Public Trustee are paid into a common fund and invested as one fund, but that fund is guaranteed by the consolidated revenue of New Zealand. Handing the principal over is management, though it may conclude the management. The Court recognizes the committees appointed in foreign countries. If the foreign country is also the domicile then the foreign committee is recognized. The Court will order money to be handed over to committees in foreign countries. Sometimes only the income is given: In re Brown (a); In re De Linden (b). The word "management" is not limited in meaning. The section was passed after the decision of Webb, J., in In re Crozier (c), because he held in that case that the Court had no summary power of appointing a committee. That case also decides the right of the Public Trustee to get in the personal estate in Victoria, and this motion is at his request. The administration of the estate in Victoria is ancillary to that in New Zealand. Sec 230 recognizes that the Court in dealing with a lunatic's estate may hand over stocks and shares to a foreign curator. (Counsel referred to Dicey on Conflict of Laws, rule 136.) On the materials before the Court it is admitted there is no jurisdiction to order a sale of the real estate. 1899 In re DICKSON. Hood, J. 1899 In re DICKSON. Hood, J. HOOD, J. I think this is an application that I ought to grant. There is some doubt as to the strict construction of sec. 130 of the Lunacy Act 1890, which provides for giving directions as to the management of the estates of lunatics, but the section is one which should, in my opinion, be liberally construed in cases like this, and I think I am at liberty to read the word "management" as meaning to collect the personal assets, realize them, and remit the proceeds to the Public Trustee in New Zealand. The Master may lease the realty and remit the proceeds to the Public Trustee. Starke I ask for an order under secs. 229 and 231, directing the manager of the Colonial Bank at Melbourne to transfer the shares in that bank at the direction of the Master in Lunacy. He is merely curator. There is no vesting: In re Brown (d). On the question of costs, it is submitted that sec. 128 gives power to the Court to make provision for the costs of this motion out of the lunatic's estate, because sec. 130 is merely a summary method of effecting the same purpose as the inquiries mentioned in that section. The motion is merely a substitute for the inquiry; but if not, there is inherent power in the Court to make such an order. HOOD, J. I grant the order directing the manager of the Colonial Bank to transfer the shares to any person at the direction of the Master in Lunacy. As to costs, I think sec. 128 applies only to an inquiry, and, therefore, does not cover the present case. I see no power to grant costs. Application granted. Solicitors for the applicant: Weigall & Dobson. R. H. C. (d) [1895] 2 Ch. 666, per Lindley, L.J. [IN CHAMBERS.] IN RE SHARP. RUSSELL v. SHARP AND OTHERS. Limitation of action-Money due upon mortgage-Settlement-Husband and wife - Constructive payment - Cause of action - Supreme Court Act 1890 (No. 1142), s. 83. In 1866, by an ante-nuptial settlement, certain moneys were settled upon trust to pay the income thereof to the wife of the settlor during her life, and after her death to hold the same for the issue of the marriage. The moneys so settled were, in September 1871, advanced by the trustees to the settlor upon mortgage. The mortgage contained a covenant for repayment of the money advanced, and interest, on 30th March 1872; but there was a proviso that if the interest was punctually paid to the mortgagees, the latter would not call in the principal sum until September 1882. There was no evidence that any interest was paid. The settlor and his wife lived amicably together from the date of the settlement until her death in 1892. Held, that this latter fact did not give rise to an inference of payment of interest, and did not amount to constructive payment, and that therefore the Statute of Limitations began to run on 30th March 1872. In re Hawes (62 L.J. Ch. 463) distinguished. ORIGINATING SUMMONS. Thomas Colin Sharp, who died 31st January 1898, by his will dated 29th April 1897 appointed the Equity Trustees Executors and Agency Company Limited executor and trustee thereof, and directed his trustee to convert all his estate into money, and to stand possessed of the moneys arising from the conversion upon trust, after payment thereout of a legacy of 50l. to the Ballarat Hospital, to divide the rest and residue into twelve equal parts; and the testator gave two of such twelfth parts to his son Thomas Colin Sharp the younger, two other twelfth parts to his son James Herbert Welsby Sharp, four twelfth parts to his daughter Janet Mary Sharp, for her separate use, without power of anticipation, and after her death to her children, and the issue of any of her children who may have died in her lifetime, in equal shares per stirpes. In case of her death without issue the testator gave the said four twelfth parts to his three sons in certain proportions; and the remaining four twelfths he gave to his son John Adair Sharp. The testator directed that the share of his daughter during her life, and of his son John Adair Sharp until his coming of age, should be invested by his trustee upon first mortgage of real 1899 March 29. Hood, J. 1899 In re SHARP. Hood, J. estate in Victoria or in Victorian Government or municipal debentures, or in debentures of the Melbourne and Metropolitan Board of Works. And he authorized his trustee in his discretion to postpone the conversion. By a codicil dated 13th August 1897 the testator appointed his son Thomas Colin Sharp and the Equity Trustees, etc., Company executors and trustees, but in all other respects confirmed his will. By a further codicil dated 10th January 1898 the testator confirmed his original will in all particulars material to and stated in this report. On the 7th February 1866 an ante-nuptial settlement was executed by and between Thomas Colin Sharp, Mary Elizabeth Welsby Russell, his intended wife, and three trustees therein named, by which the sum of 1500l. and certain personal effects were settled by him upon trust, inter alia that after the marriage the trustees or trustee for the time being should during the lives of T. C. Sharp and M. E. W. Russell, and the life of the survivor of them, with their, his, or her consent in writing, and after the decease of such survivor then at the discretion of the trustees or trustee for the time being, to lay out and invest the sum of 1500l. upon certain securities, including real estate and bank shares in the colony of Victoria, and to pay the interest, etc., to M. E. W. Russell during her life, or to pay the same "to such person or persons as she shall by note in writing notwithstanding any coverture she may be under but not by way of anticipation direct and in default thereof to pay the same interest etc. into her own hands or otherwise to permit her to receive the same for her sole and separate use free from the debts control and engagements of any husband and so that she shall have no power to and anticipate the said interest etc." And from and after the decease of the said M. E. W. Russell the trust moneys and the furniture were to be held in trust for the children " and remoter issue" of the marriage in equal shares in default of any appointment by the parents or by the survivor of them. The trustees under the settlement received the money invested it in bank shares and upon mortgage. In 1871 they called in the investments, and on 30th September 1871 the trustees advanced the 1500l. to Thomas Colin Sharp upon mortgage of real estate in Grey-street, East Melbourne. Under the instrument of mortgage the mortgagor covenanted with the mortgagees to repay the moneys on the 30th March 1872 with interest at 6 per cent. There was also a covenant by the mortgagor Sharp "that if the said sum of 1500l. or any part thereof shall remain unpaid after the said 30th March next he will so long as the same sum or any part thereof shall remain unpaid pay to" the mortgagees interest thereon at the rate of 6 per cent., payable half-yearly on 30th March and 30th September. "Provided always that if the said Thomas Colin Sharp shall on every 30th March and 30th September until the 30th September 1881 or within thirty days after each of the said days respectively pay to" the mortgagees interest upon the 1500l. at the above rate up to the same half-yearly days of payment respectively, and "shall perform all the covenants herein contained and on the part of the said Thomas Colin Sharp to be performed then" the mortgagees "will not before the 30th September 1881 call in the said principal sum of 1500l. or any part thereof. Provided also and it is hereby agreed and declared that the said Thomas Colin Sharp shall not before the said 30th September 1881 compel the said ' mortgagees to receive the 1500l. or any part of it. It was further agreed between and by the several mortgagees that the 1500l. was money belonging to them on a joint account. The mortgage deed also contained a power of sale by the mortgagees, exercisable after the 30th March 1872, but with this provisoProvided always and it is hereby declared and agreed that the said George Thomson Bald, Joseph Dougall, and Thomas Russell or the survivors or survivor of them or the executors or administrators of such survivor their or his assigns shall not exercise the power of sale unless and until default shall have been made in payment at the time herein before appointed for payment thereof of the principal money or interest the payment whereof is intended to be hereby secured and they or he shall have given a notice in writing to the said Thomas Colin Sharp his heirs executors administrators or assigns to pay off the moneys for the 1899 In re SHARP. Hood, J. |