1909 JAMES, In re. HOLE from age incapable of managing her affairs, and on June 8, 1905, JOYCE J. an order was made appointing a quasi-committee of her estate and authorizing the trustees of the settlement to lodge in Court the stocks and funds standing in their names as such trustees. In pursuance of that order and of a further order made in the same matter on February 22, 1906, the trustees lodged the trust funds comprised in the settlement in Court. This was an originating summons raising the question whether the property subject to the trusts of the settlement was effectually disposed of by Mrs. James's will, or whether she died intestate with respect thereto. Guy Bowman, for the trustees. Younger, K.C., and Cann, for the appointees. This case, coupled with the provisions of s. 3 of the Married Women's Property Act, 1893, is covered by the decision in Jones v. Southall. (1) That section was intended to counteract the effect of the decision in In re Price (2), and by virtue of that section this will is to be construed as if the testatrix had republished it after her husband's death. The will now operates on whatever she had at the time of her death, notwithstanding that she did not have it at the time of making her will. The subsequent acquisition of the absolute beneficial interest will feed the disposition made by the will: Cross v. Hudson. (3) In Bishop v. Wall (4) it was held that a will of a married woman made during coverture and not republished was a good disposition of the funds to which during the coverture she was entitled in reversion for her separate use contingently upon her surviving her husband. Sect. 3 applies to any will of a married woman who dies after the coming into operation of the Act: In re Wylie. (5) There has been no ademption: Clough v. Clough (6); In re Wood. (7) We submit that on the authorities cited the intention of this testatrix can be validly given effect to, and that the appointees ought to take the fund. (1) (1861) 30 Beav. 187; before the Probate Court, (1859) 28 L. J. (P. & M.) 112. (2) (1885) 28 Ch. D. 709. (3) (1789) 3 Bro. C. C. 31. (4) (1876) 3 Ch. D. 194. (6) (1834) 3 My. & K. 296. (7) [1894] 2 Ch. 377. v. BETHUNE. JOYCE J. 1909 JAMES, Hughes, K.C., and Bischoff, for the trustee in bankruptcy of one of the next of kin. The will of the wife does not operate on the property if the will is made during the coverture and she turns out to be the survivor: Trimmell v. Fell (1); Price'v. Parker. (2) The will could only operate as an execution of the power in BETHUNE. the event of the lady dying before her husband. In re. HOLE v. The Married Women's Property Act, 1893, s. 3, does not make this a good exercise of the power, although it may operate to pass the property as residue. The result is the same, because the residuary legatee predeceased the testatrix. There is nothing in s. 3 to operate so as to render that an appointment which is not already an appointment. There is no appointment here, because the event on which it was to arise, namely, that of the husband surviving the wife, did not happen. Whatever property the lady had at her death will no doubt pass under her will, unless there is a contrary intention expressed in the will. If on the construction of the will there is a contrary intention and these funds were not part of the lady's residue, then they are undisposed of. The result is the same either way. Jones v. Southall (3) really supports our contention. There the lady was not married, and under the settlement the trust until marriage was for her absolutely. Her will was an appointment in terms, but she added the words "and I give," &c. She purported to exercise the power, which, however, never arose. It was held that the will took effect on the property included in the settlement. The will was dated after the Wills Act, and the lady being a feme sole, s. 24 applied. In all the text-books Jones v. Southall (3) is treated as having been decided on the ground that the lady was not a married woman. Bishop v. Wall (4) was a case of separate estate and was treated as depending on that ground. It is not a question here whether the will is good, but whether the exercise of the power applies in the events which have happened. It is not disputed that if the power is validly exercised the Act of 1893 makes the will good with reference to property afterwards acquired without any republication. As to ademption, the lady appoints the funds (1) (1853) 16 Beav. 537. (2) (1848) 16 Sim. 198. (3) 30 Beav. 187. 1909 JAMES, In re. HOLE v. subject to the trusts of the settlement, and whether there be JOYCE J. ademption or not, that disposition did not apply to the events. which happened. She is contemplating that the funds are still settled, and does not deal with the case of her being absolutely entitled. The funds are not still subject to the trusts of the settlement; she is beneficially entitled and in a position to call BETHUNE for a transfer of them from the trustees. There has been no exercise of the power, because it has not arisen, and the Act of 1893 cannot operate to bring the funds within the appointment, but only to carry them as residue. There is no general gift to the appointees to take effect in the event of her surviving her husband. She does not use the words "give and bequeath" as in Jones v. Southall. (1) It is admitted that the lunacy and what was done thereunder does not affect the case. J. G. Wood, for the trustee in bankruptcy of another of the next of kin. The effect of s. 3 of the Act of 1893 is merely to adapt s. 24 of the Wills Act to the will of a married woman made during coverture. It does not say that the will is to be read forward to the death of the testatrix for all purposes, but only for the purpose of ascertaining the property which will pass. The will was only intended to operate in the event of the husband surviving. The testatrix only "appoints." In other parts of the will she uses the word "give." Northcote, for the remaining next of kin. JOYCE J. Having regard to the course of the argument and the proposition laid down by Mr. Hughes in discussing the matter before me-with which proposition, as I have already said, I entirely agree I do not feel any doubt about the case. The effect of s. 3 of the Married Women's Property Act, 1893, in my opinion, was to make the will of a married woman executed during coverture operate upon all she had at her death. Then it was admitted-and could not have been seriously deniedthat the lunacy in this case makes no difference, nor what was done under the lunacy; and that the case is to be dealt with as if this lady had not become a lunatic at all, but at the (1) 30 Beav. 187. 1909 JOYCE I. date of her death the securities which were the subject of the settlement had been in the hands of the trustees held upon trust for this lady, her heirs, executors, and administrators. In dealing with this case it seems to me that I must look at it as if all this fund had been in the hands of trustees at the time of the death BETHUNE. of Mrs. James and had been held upon trust for her. JAMES, HOLE v. That being so, the case resolves itself into the question whether upon the construction of this will the property in question was disposed of at all; whether it formed part of the residue, or whether there was any specific disposition of it. No one but a lawyer in reading this will could entertain any doubt as to what was intended by the testatrix to be the effect of the disposition. I do not feel the slightest doubt about it. What has she said ? She has said "In exercise of the power for this purpose so given to me"-that was the special power-" and of all other powers hereunto enabling me "-which would include the power which she had under this section of the Act of 1893-"I hereby appoint "that is "I direct"-"that the trustees for the time being of the settlement shall after the decease of my husband stand possessed of all the securities subject to the trusts thereof upon trust" in a certain way. It is to my mind a plain direction to the trustees of the settlement-if she has power to direct them -to hold the securities upon trust after the death of the husband for the persons whom she named. That is the whole case, and that, in my opinion, is the true construction of this will, namely, that this is a specific disposition of all the funds as if they had been in the hands of the trustees at the time of her death held upon trust for her. Solicitors Wood, Bigg & Nash, for G. D. Cann, Exeter ; Tarry, Sherlock & King. G. A. S. A scheme sanctioned by the Court for the administration of a charity provided that the income of the charity should be applied for the benefit of a particular hospital in England "or such other medical charity or charities of any kind, school, or teaching whatsoever, and partly or exclusively to one or other of such objects as the trustees may in their uncontrolled discretion from time to time determine." The trustees desired to apply the income to medical charities in Scotland : Held, that the charity must be administered and the trusts of the scheme carried into effect within the jurisdiction of the Court, and that the income could not be applied to a "medical charity or charities" in Scotland. ADJOURNED SUMMONS. Elizabeth Mirrlees by her will, dated in 1901, gave to the plaintiff Mr. Andrew Mitchell, a Scotch advocate living in Edinburgh, the sum of 20,000l. apparently for his own use and benefit. In 1903 he commenced an action against the AttorneyGeneral in which he admitted that he held the legacy upon trust for certain charitable purposes in accordance with the intentions of the testatrix, and he asked that a proper deed of trust or other instrument for carrying into effect the intentions of the testatrix might be sanctioned by the Court. On March 30, 1904, an order was made in the action sanctioning a scheme which was scheduled to the order. By that order Mr. Mitchell and two other persons, both of whom lived in England were appointed the first trustees of the charity. Clause 14 of the scheme provided that subject to the payment of certain expenses of management the income of the charity should be applied "for the benefit of the Buchanan Hospital, Springfield Road, St. Leonards-on-Sea, or such other medical charity or charities of any kind, school, or teaching whatsoever, and partly or exclusively to one or other of such objects as the JOYCE J 1909 Nov. 9. |