EQUITY. Re STABLES. Lord Chancellor. 10, 13, 24 FEB. 1864. Lunacy Regulation Act, 1862, (25 & 26 Vict. c. 86), s. 13-Lunacy Regulation Act, 1853, (16 & 17 Vict. c. 70) ss. 2, 116-Married Woman-3 & 4 Will. 4, c. 74, ss. 77-84. A freehold estate in fee simple was vested in a married woman of unsound mind, and in her husband in her right: Held, that the Lunacy Regulation Acts of 1853 (ss. 2, 116) and 1862 (s. 13) did not enable the Lord Chancellor to order the committee, or any person on behalf of the lunatic, to convey the legal estate vested in her: Held, also, that an order by the Lord Chancellor for the sale of the lunatic's estate bound the entire beneficial interest of the married woman. This was a petition in lunacy, presented by the husband of a married woman of unsound mind, but not so found by inquisition. The lunatic, and her husband in her right, were entitled in fee simple to one The undivided thirteenth of two freehold estates. value of the two shares was considerably less than 1000l. The owners of the remaining shares had entered into advantageous contracts for the sale of the entirety of the two estates, conditional on means being found of conveying the shares of the lunatic to the purchaser. The petitioner stated that his means were insufficient for the comfortable maintenance and support of his wife, and prayed that the contracts of sale, so far as they related to the lunatic's shares, might be carried into effect under the provisions of the Lunacy Regulation Act, 1862, he being willing to concur in the conveyance, and that the proceeds might be applied in the manner mentioned in the petition. The matter was brought in the first instance before the Lords Justices, but as their Lordships doubted whether the Lunacy Acts enabled them to convey, or cause to be conveyed, the real estate of a married woman, the point was now, at their suggestion, submitted to the Lord Chancellor. C. Wood, for the petitioner, referred to have the same effect as a deed duly acknowledged by the married woman would have, if she were sane. 24 FEB. 1864. THE LORD CHANCELLOR said that the petition raised a very nice question as to whether a convey ance could be made which would pass the legal estate vested in the lunatic and her husband in her right. The 25 & 26 Vict. c. 86, the Act, which empowered the Lord Chancellor, in cases where the property of the person of unsound mind did not exceed 10007, to make orders of the nature now asked for, enacted that for this purpose the Lord Chancellor should have “all the same powers with respect to the transfer, sale, and disposition of, and otherwise respecting the real and personal estate of such person as aforesaid, as if he had been found lunatic by inquisition." The power, there fore, of selling and conveying was in this case the same as if the married woman had been found lunatic by inquisition. The Court was thus carried back to the Lunacy Regulation Act of 1853 (16 & 17 Vict. c. 76), the 116th section of which enacted, that where it appeared to the Lord Chancellor to be just and reasonable, or for the lunatic's benefit, he might order that any estate or interest of the lunatic in land or stock be sold, &c. And that the committee of the estate might and should, in the name and on the behalf of the lunatic, execute, make, and do, all such conveyances, deeds, transfers, and things relative to any such sale, &c., and for effectuating this present provision as the Lord Chancellor should order. His Lordship's first impression was that the works of this enactment were sufficient to give him a statttory power, or rather to enable him to confer on the committee a statutory power, to deal with all the estate of a lunatic. He found, however, that the committee was to convey, execute deeds, and art generally in the name of the lunatic. done by the committee must, therefore, be such the lunatic, if sane, would have been able to do, and the conveyance made by the committee m be such a conveyance as the lunatic, if sane, wo have made. The acts By the interpretation clause (16 & 17 Viet. c. 7, s. 2) the word "conveyance" was to be construe! The Lunacy Regulation Act, 1862 (25 & 26 Vict. comprehending "any release, surrender, assignm c. 86), ss. 12, 13, 17; The Lunacy Regulation Act, 1853 (16 & 17 Vict. or other assurance, including all acts, deeds, and thing neces and argued that a conveyance of the lunatic's estate sary to give effect to a conveyance by a married by a person appointed to convey on her behalf would woman was included under the word "conveyance in this Act; or rather, that a conveyance under the Act supplied the acknowledgment. But the 77th and following sections of the Abolition of Fines and Recoveries Act (3 & 4 Will. 4, c. 74), which rendered an acknowledgment a necessary condition for the assurance of a married woman taking effect, directed that such acknowledgment should be made before a Judge of one of the superior Courts at Westminster, or before two Commissioners, and, previously to the acknowledgment being received, the married woman was to be examined apart from her husband as to her knowledge of the contents of the deed, and whether she freely and voluntarily consented to it. The persons taking the acknowledgment were also required to sign a certificate that the provisions of the Act had been complied with. His Lordship was of opinion that those provisions could not be dispensed with; the married woman, by reason of her lunacy, could not comply with them; if, then, the interpretation contended for were accepted, it would lead to the conclusion that the committee would have to perform vicariously all the formalities which the married woman, if sane, would have to go through. But it was absurd to suppose that the Act intended the committee to do this, to go through these solemnities vicariously in the name and on behalf of the married woman. The statute did not intend this, but only meant that | everything should be done by the committee which one person could properly do for another, if he were duly authorised to act on behalf of the latter. It conferred all such powers as would properly belong to the duly-appointed representative or attorney of the married woman, but did not enable her to be examined by substitute under the Fines and Recoveries Act, and, consequently, a committee could not perform these solemnities. The Court was, therefore, compelled to conclude that there was no part of the Lunacy Acts which, in the present case, enabled the Lord Chancellor to confer a statutory power of disposition of the legal estate of the lunatic, or to authorise any other person to effect a valid conveyance by going through the ceremonies which the married woman would herself have to go through if she were of sound mind. The beneficial interest of the lunatic would, however, be bound by an order of the Court, and, on her death, her heir-at-law would be bound to convey. His Lordship would make an order for sale, and direct that the husband of the lunatic should, in her name, so far as he was able, concur in the conveyance. The rest of the matter would be remitted to the Lords Justices. | 621 Prenuptial Settlement-Construction-Vesting The presumption, that a prenuptial settlement is intended to provide for children of the marriage at the time when they require a provision, is so strong that the Court will not, unless absolutely compelled by the language of the instrument, adopt a construction of such a settlement, which would exclude from its benefit a child who comes of age but does not survive both parents. Stuart, V.-C., made on the hearing of this cause. Graves and Louisa Larkins, and dated the 21st of stration to the estates of Harry Graves and John Graves. The suit was instituted by the surviving trustees of the settlement, as creditors under the bond, for the administration of the estate of Harry Graves, and for a declaration of the rights of parties under the settlement. After the institution of the suit, the defendant Sarah Graves became bankrupt, and her assignees were made parties by supplemental order. The Vice-Chancellor having decided that John Graves acquired a vested interest in the settled fund upon attaining twenty-one, and that it was divisible equally between his representative and the defendant Louisa C. Graves, the latter appealed from this part of the decree, and also in respect of another part, Greene, Q.C., and Chitty, for the appellant. The whole frame of the settlement clearly shows, that the vesting of the children's shares was to depend effect are inserted in every clause, and the terms of upon their surviving both parents; words to that the gift over are conclusive. In Woodcock v. The Duke of Dorset, 3 Bro. C. C. 569; married at the decease of the survivor of the said There were two children only of the marriage who attained the age of twenty-one years, viz., John Graves, who died a bachelor and intestate in 1857, and the defendant Louisa C. Graves. Louisa Graves, the wife of Harry Graves, died in 1836. Harry Graves, in 1841, married the defendant Sarah Graves, and in 1861 died intestate. The defendant Walter Larkins took out admini Jopp v. Wood, 28 Beav. 53; the Court took advantage of ambiguity in the lan Whatford v. Moore, 3 My. & C. 270; Re Wollaston's Settlement, 27 Beav. 642. The language is ambiguous; the first trust creates a vested interest in children attaining twenty-one, which cannot be destroyed by any implication arising from the gift over to take effect in an event which has not happened; the repeated insertion of the words, Larkins," though unnecessary, was intended to show, "after the death of the said Harry Graves and Louisa that the vesting in the children was not to affect the enjoyment of the parents' life interests. In support of the presumption of vesting at twentyone or marriage, they cited, in addition to the cases above-mentioned, Torres v. Franco, 1 Russ. & My. 649; Greene, Q. C., in reply. KNIGHT BRUCE, L.J., said, that both upon principle and authority, the Court would not, in the absence of absolutely compulsory words, adopt a construction of a prenuptial settlement, which would exclude from the benefit of the trusts a child who attained twenty-one, and might have left a family, merely because he did not survive both his parents, and he thought that, from the whole of the instrument now before the Court, no intention to exclude such a child was necessarily to be inferred, the constantly repeated words referring to the death of both parents being, in his opinion, attributable to the anxiety of the framer of the settlement to preserve to the parents the full enjoyment of the settled property during their lives. TURNER, L.J., agreed, that upon principle and authority it must be presumed, that a prenuptial settlement intended to provide for the children of the marriage at the time when they required provision to be made for them. It was true that this settlement contained awkward language; the parts principally relied on by the appellants were the gift over in the event of no children surviving both parents, and the repeated occurrence of the words "after the decease of the survivor of" the husband and wife. But it could not be disputed that, if the earlier part of the instrument gave clear vested interests to the children on attaining twenty-one, the existence of the gift over would not destroy those vested interests; the real question, therefore, turned upon the earlier part. Now the first trust gave to the children vested interests at their birth, and the difficulty arose upon the clause providing for the time of vesting. He thought, however, that the intention of that clause was simply to control the previous direct trust by changing the time of vesting from birth to the coming of age or marriage, and not to alter the class of children who were to take, which would be the effect of the appellant's construction. That construction depended upon the words referring to survivorship; but he agreed that these words admitted of the construction which had been given to them by Lord Justice Knight Bruce. The representative of John Graves, therefore, was entitled to a moiety of the trust funds, and the appeal as to that part of the case must be dismissed. Lords Justices. 25 FEB. 1864. } ADAMS v. SwOrder. from his assignees in bankruptcy by or on behalf of the defendant Sworder, their solicitor, was set aside (see ante 273), the question was raised, whether in taking the account of rents received by Sworder, who had been in possession, he should be charged with what, without wilful default, he might have received, no special charge of wilful default having been made by the bill. Herbert Smith, for the plaintiff, in favour of the insertion of the charge, cited, White v. Lightbourne, 4 B. P. C. 181; Gould v. Okedon, 4 B. P. C. 198; Murray v. Palmer, 2 Sch. & Lef. 474, 488; Pearson v. Benson, 28 Beav. 598. Marten, for the defendant Sworder, contrà, cited, 156, 157; Trevelyan v. Charter, 1 Seton on Decrees, 646; York Building Company v. Mackenzie, 8 B. P. C. 42, 70; Murray v. O'Shea, 2 J. & Lat. 422, 430; Ex parte James, 8 Ves. 347, 351; Waller, for the defendant Ree. KNIGHT BRUCE, L.J., said, that the present question had of late seldom been agitated; he thought, however, that the insertion in the decree of a charge of wilful default was reasonable, and the cases in the House of Lords which had been cited for the plaintiff were a sufficient authority for it. TURNER, L.J., concurred, and said, the authority of the cases in the House of Lords must outweigh the authorities cited on the other side. A company having purchased certain shares of a fund in Court, obtained a general stop order on the whole Purchase set aside-Account of Rents-Wilful fund. They afterwards purchased another share, but Default. did not obtain another stop order :— Held, that they must be postponed to a subsequent ▲, a solicitor, purchased an estate from his client and mortgagee without notice, of the same share, who had took possession thereof; the sale was set aside:obtained a stop order. Held, that A was chargeable with the rents which, without wilful default, he might have received, although no special charge of wilful default was made by the bill. In drawing up the decree in this case, in which the purchase of the plaintiff's life estate in certain lands The effect of a stop order in giving notice and securing priority, is limited to the charges in respect of which it is obtained. This was an appeal from a decision of the Master of the Rolls, reported ante, s. 7. In the year 1845 The General Reversionary and Investment Company purchased the shares of three of the children of Jane Macleod in a fund in Court, standing to the credit of the cause of Macleod v. Buchannan, and ear-marked "the account of Jane Macleod and her children," which was settled upon Jane Macleod for her life, with remainder to her children equally. On the 12th of March, 1846, a stop order upon the whole fund was made on the petition of the trustees of the Company and the assignors of the three shares; the petition, which was referred to in the order, set out the assignments of the three shares. In 1847 the Company purchased and took an assignment of the share of Henry Macleod, another of the children of Jane Macleod, but did not obtain any further stop order. In 1860, Henry Macleod charged his share with certain debts due from him to Charles Rousselle and Jacob Stier, who had no notice of the previous assignment to the Company, and in July, 1862, Rousselle and Stier obtained a stop order upon the share of Henry Macleod, with his concurrence. KNIGHT BRUCE, L.J., said, that after some doubt, he had come to the conclusion, that the stop order of 1846, which was too large in its terms, but which referred to the petition on which it was founded, could not be made available in respect of the subsequent assignment of the share of Henry Macleod, and that consequently the respondents' security must prevail against that assignment. TURNER, L.J., said, that although the appellants' Jane Macleod having died in 1862, several petitions were presented for the distribution of the fund, and a question of priority was raised between the assign-stop order in terms affected the whole fund, yet, inasment of the share of Henry Macleod to the Company, and the charge thereon in favour of Rousselle and Stier. The Master of the Rolls decided that the stop order of 1846 was confined to the shares upon the assignment of which it was founded, and that the charge of Rousselle and Stier had, by means of the stop order of 1862, obtained priority over the previous assignment to the Company. From this decision the Company appealed. Selwyn, Q.C., and Beavan for the appellants. The Company, having obtained a stop order upon the whole fund, had no need to obtain a further order when they purchased a further share; they were, therefore, not guilty of laches, and the case was distinguishable from Greening v. Beckford, 5 Sim. 195. A person who has obtained a stop order upon the whole of a fund, is like a tenant in possession of an estate, and all persons subsequently dealing with the fund are bound to inquire into the nature and extent of his interest, Daniels v. Davison, 16 Ves. 249; Rousselle and Stier. A stop order can only be obtained on admission or proof of the assignment on which it is founded, Winchelsea v. Garretty, 1 Beav. 223. much as it referred to the petition, which disclosed the actual interest of the appellants, it must be taken to have shown on the face of it, that it was confined to the shares previously purchased by them. It was not, however, generally necessary to have recourse to the petition, as the name of the assignor, who either joined in or was served with the application for a stop order, would show by whom the assignment was made; but it was obviously desirable that stop orders should, as they now usually did, refer distinctly to the share assigned. } VICKERS. BELL. Lords Justices. 29 FEB., 1 MARCH, 1864. Pleading-Parties-Executor-Probate-Acts showing acceptance of Executorship. S, being named as one of the executors of B's will, did not prove the will, but, in answer to an inquiry vho were B's executors, wrote a letter saying that he anl others were the executors: a creditors' suit was institutul for the administration of B's estate, to which S, together with the executors who had proved the will, was made a defendant. S put in a separate answer, denying that he had acted as executor, but at the same time raising a substantial defence against the plaintiff's allty) debt: Held, that S had accepted the office of executor, rad was properly made a party, and the common adijas tration decree was made against him as well as the executors who had proved the will. This was an appeal by Robert Smith, one of the defendants, against so much of the decree of Stuart, V.-C., |