v. BASTOW. WHEATLEY of the assignee against the surety destroyed because the fact of the assignment has not been communicated to him? On whom does the law cast the onus of finding the creditor? Generally speaking, as I conceive, upon the debtor; but, apart from this consideration, the surety, if he has no notice of the assignment, may pay the creditor, and the payment, as I apprehend, will be perfectly good against the assignee; and if, upon the payment being made or tendered, the creditor be required to deliver, and does not deliver any securities held by him, the surety would, no doubt, be entitled to relief in this Court, and to stay any proceedings by the creditor. It is to be remembered in these cases, that a surety though a favoured debtor is still a debtor, and that he may at any time relieve himself by paying the debt; and further, that if notice to the surety of the assignment of the debt be held to be necessary, serious impediments to assignments by creditors may in many cases be created. [ *281 ] Upon these grounds I feel compelled, in the absence of authority, respectfully to dissent from the opinion which the VICE-CHANCELLOR has expressed, and to hold that the plaintiff's fund has not been discharged upon the grounds on which the VICE-CHANCELLOR has relied. Upon the rest of the case I have but little to say, for I agree in opinion with the VICE-CHANCELLOR that no decree in favour of the plaintiff can be made upon the case stated by the bill. There is no sufficient evidence to support that case. The case as it really stands upon the evidence is this: The plaintiff and her brother being entitled to shares of a fund in Court, subject to the life interest of their mother, assigned their shares of the fund for securing *1,000l. advanced by Bastow to the brother, the plaintiff joining as surety merely, and being so described in the assignment. A stop order was obtained by Mr. Bastow. He afterwards assigned the 1,000l. and the securities for it to the trustees of his marriage settlement. The trustees rested upon the stop order obtained by Bastow, and did not themselves put a stop upon the fund. After the assignment to the trustees, the brother's share of the fund was got out of Court upon a petition presented in the name of the brother and the mother, representing that 500l. had been paid by the brother to Mr. Bastow; and Mr. Collins, the solicitor by whom the petition was presented, without the authority and without the knowledge of Mr. Bastow, of the plaintiff's husband or probably of the plaintiff herself (although this is not material as she was then married), appeared for them upon the petition and consented to it, or did not oppose it. In this state of circumstances the plaintiff's case was rested in argument upon two points: first, that the plaintiff's share of the funds was not intended to be, and was not liable for any deficiency arising from an improper disposition of the funds under the order of the COURT; that the plaintiff was not, as it was said, a guarantee for the Court of Chancery; and secondly, that the defendant Bastow, and the trustees of his settlement, claiming under him, were bound by the statement made by Collins in the petition presented to the Court, that 500l. had been paid to Bastow, and by the other acts of Collins; and the case of The Duke of Beaufort v. Neeld was cited upon this latter point. But with respect to the first point, I think that the plaintiff's share of these funds was a security generally *for the monies advanced by Bastow, and must be answerable for the deficiency of those monies, from whatever cause other than the act or default of Bastow, or of those claiming under him, that deficiency may have arisen; and, as to the second point, I think that, as the case stands upon the evidence, it is clear that Collins had no authority either for the statements which he made in the petition or for the acts which he did, and that neither Bastow nor those claiming under him can be bound by those statements or acts. In the case referred to, the agent was a general agent for the purpose of dealing with the property in question; the solicitor in this case. does not appear to me to have stood in that situation. If the plaintiff desires it, there may be an account of what has been received by Bastow or the trustees in respect of the 1,000l. and interest, and of what remains due in respect thereof, and a decree for re-transfer on payment of what is due, but the rest of the bill must be dismissed, and if the plaintiff does not take the account the whole bill must be dismissed. In either case the plaintiff must pay the costs. BULLOCK v. BENNETT (1). (7 D. M. & G. 283-287; S. C. 1 Jur. N. S. 567; 3 W. R. 545.) A testator had a daughter who, at the date of his will, was a widow, having been twice married. By his will, dated after the Wills Act came into operation, he gave a sum of stock upon trust to pay the income to her for her life or until her marriage, and after her decease or her marriage, which should first happen, upon trust for her children by both her late husbands. After the date of the will the daughter married a third time, with the knowledge and approbation of the testator, who however died without republishing his will: Held that the daughter took no interest under it. The provision in the Wills Act, that the will is to be construed as if made immediately before the testator's death, relates only to the property comprised in the will (2). THIS was an appeal from the decision of Vice-Chancellor WOOD, upon a special case submitted to the Court, in order to (1) In re Whorwood (1886) 34 Ch. D. 446, 56 L. J. Ch. 340, 56 L. T. 71. (2) In re Chapman, Perkins v. Chap man [1904] 1 Ch. 431, 73 L. J. Ch. 291, WHEATLEY V. BASTOW. [ *282 ] 1855. June 9, 12. TURNER, KNIGHT [ 283 ] determine the construction of the will of Samuel Bullock, dated the 1st of July, 1852, whereby after directing all his estate to be converted into money, he gave 1,200l. to trustees upon trusts expressed as follows: "Upon trust to pay the income thereof to my daughter Mary Ann for her life, or until her marriage, and after her decease or marriage, which shall first happen, upon trust as to the sum of 9001., part of the said sum of 1,200l., for William Bennett and Sarah Ann Maria Bennett, children of my said daughter Mary Ann by her late husband William Bennett, in equal shares, and as to the sum of 300l., further part of the said sum of 1,200l., to pay and divide the same equally between Ann Bullock, Mary Smith and Susannah Wilce, children of the said Mary Ann Bennett by her former husband Thomas Wilce." At the time of the date and execution of the testator's will, his daughter Mary Ann was a widow, having, as was mentioned in the will, been twice married, first to Mr. Wilce and next to Mr. Bennett. After the date of the will, on the 21st of February, 1853, in the lifetime of the testator, she married the defendant Joseph Morris. The testator died on the 11th of March, 1853, without having republished his will after the solemnization of his daughter's third marriage. These facts were stated in a special case, in which the trustees were named as plaintiffs, and the children of the testator's daughter Mary Ann by her first and second husbands, as well as Mary Ann herself, and her third husband, as defendants. The questions for the opinion of the Court were, first, what interest the defendants the children took under the will of the testator in the 1,2001. bequeathed by him in trust; and secondly, whether the defendant Mary Ann Morris took any, and if any, what interest under the will in the same sum of 1,2001. The case was argued before the Vice-Chancellor, and adjudged by his Honour upon the assumption that the testator's daughter married the defendant Morris with the knowledge of the testator. The VICE-CHANCELLOR held that the daughter continued entitled to the income of the fund, notwithstanding her third marriage (1). From this decision the children appealed. Mr. Rolt and Mr. Faber, in support of the appeal, [referred to Willing v. Baine (2) and Rishton v. Cobb (3)]. Mr. W. M. James and Mr. G. M. Giffard, for the *defendants Morris and his wife, referred to Wheeler v. Warner (4). (1) 1 K. & J. 315. Judgment reserved. 48 R. R. 256 (5 My. & Cr. 145). 24 R. R. 176 (1 Sim. & St. 304). THE LORD JUSTICE TURNER, after stating the will and the facts, said: We so generally agree with the VICE-CHANCELLOR, that, although I felt during the argument a strong impression adverse to the judgment, I desired further to consider before venturing to differ from it. Having now further considered the question, I feel myself compelled to dissent from the VICE-CHANCELLOR's decision. Questions of this nature must depend upon the language and context of the instrument, and the point to be ascertained here is, whether the testator is referring to the state of circumstances as they existed at the date of the will, or as they might exist at the time of his death. I state advisedly that, in my judgment, this is the point, notwithstanding the late Wills Act, which, by its 24th section, enacts, that every will shall be construed with reference to the real and personal estate comprised in it, as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. It is "with reference to the real and personal estate comprised in it" that the will is to speak, as if executed immediately before the death of the testator. I understand this to mean, not with reference *to the objects of the testator's bounty, who are to take the real and personal estate, but with reference to the real and personal estate, which is to be taken by those objects. Had it been intended otherwise, the words with reference to the real and personal estate would hardly, if at all, have been required to be inserted. The statute, therefore, does not in my opinion affect the case, and we must consider the question on the language and context of the will. Now, according to the dispositions of the will, the trustees are to pay the income to the daughter during her life, or until her marriage. It was present therefore to the testator's mind when he made his will, that she was not at that time married, and he has made this more clear by ulterior dispositions, by which he has given the fund after her decease or marriage to the children of her first and second husbands. Are we then to understand a testator, who thus speaks of his legatee as not being married, to refer, when he speaks of her future marriage, not to her next marriage, if it should take place in his lifetime, but to any future and subsequent marriage which may take place after his decease? I think not, but that we must apply the words which the testator uses to what his will shows to have been passing in his mind at the time. He demonstrates that he was referring to the circumstances as they then stood, and we must apply his words to those circumstances. The VICE-CHANCELLOR seems to have placed some reliance on the BULLOCK v. BENNETT. June 12. [ *286 ] BULLOCK v. BENNETT. [ *287] 1855. May 26. June 12. KNIGHT [ 288 ] circumstance of testator having approved the marriage. But this circumstance does not seem to me to be material. He might approve the marriage, and still intend the dispositions of the will to take effect. It seems probable indeed that this was his intention, for the dispositions over are in favour of children of the *former marriages, for whom the daughter might be disabled from providing by the third marriage. With respect to what might have been the effect of the disposition if the testator had republished his will after the marriage, it is unnecessary to give any opinion, and I give none; but the absence of republication certainly does not aid this lady's case. Some authorities were referred to on the part of this lady in the course of argument; but they were cases in which the provisions of the will applied to marriages with the consent of trustees appointed by the testator's will, and, the marriages afterwards having taken place in the lifetime of the testator, the legatees were held to be entitled. Those cases do not seem to me to touch the present. The plain intention in such cases is to provide for the event not of any marriage, but of an improvident marriage; and the consent of the testator proves that he did not consider the marriage to be improvident. But here the provision in the will applies to any marriage, whether provident or improvident. So far as they go, however, these cases seem to be rather against than in favour of the lady, for I can find no trace in them of its ever having been supposed that the legatees could take if the marriage was without the testator's consent, and yet they would be so entitled if the will was to be construed as referring only to marriages after the death of the testator. The answer to the case will be altered as I have mentioned. The Lord Justice KNIGHT BRUCE concurred. WATSON v. LYON. (7 D. M. & G. 288–299; S. C. 24 L. J. Ch. 754; 3 W. R. 543.) A mortgagor instructed his solicitors, to whom he was indebted in a bill of costs, to prepare a reconveyance of the mortgaged property. They did so, and sent the engrossment to the mortgagees' solicitors, with an intimation that they had a lien on it, and a request that the mortgagees' solicitors would hold it on account of the mortgagor's solicitors. The engrossment was executed by the mortgagees. The mortgage-money was not paid, but the mortgagor sold the property to purchasers who agreed to pay it: Held, that the mortgagor's solicitors had a lien on the engrossment, and that the lien was not prejudiced by their having parted with the engrossment under the above circumstances, nor by the execution of it as a deed, nor by a promissory note delivered to the solicitors not covering their whole demand, and that the purchaser had been properly restrained by injunction from proceeding at law to recover the deed. THIS was one of the first petitions of appeal from the Court of Chancery of the Duchy of Lancaster under the recent Act 17 & 18 |