NEVILLE J. set aside the transfer, and compel Slater to take back the shares; CORPORA TION, LIMITED, In re. CASE. 1909 but until he has done so he is the shareholder, and to such a DISCOVERERS Suit the company would not be proper parties." That seems to FINANCE me to lay down the law correctly, and with regard to the equity which has been suggested it must be remembered that the rights between the liquidator and the members of the company LINDLAR'S and between past and present members are statutory rights, which can neither be straitened nor enlarged by the decisions of the Courts. Further, it must be remembered that in the case supposed the contract is not void between the transferor and the transferee, but is voidable only, and it seems to me that to apply the doctrine of subrogation so as to put the liquidator in the same position as the transferee would be to do what, as I understand the cases, has never been done, and would be in effect to put the liquidator in a position in which he is not placed by the statute which creates his office. I think, therefore, that in this case the claim to put Mr. Lindlar on the register fails. [No order was made as to costs.] Solicitors: Dunderdale, Dehn & Co.; Clarke, Rawlins & Co. J. R. B. In re BURLEY. ALEXANDER v. BURLEY. [1909 B. 2778.] Will-Construction Absolute Gift· Codicil directing Use of Legacy for Charitable Purposes-Precatory Trust" I wish." A testatrix by her will gave to R. a legacy of 23007. By a codicil dated the same day as the will she declared as follows: "I wish R. to use 10007., part of the legacy given to him by my above will, for the endowment in his own name of a cot in the I. hospital, and to retain the balance of the said legacy for his own use and benefit." By a second codicil in 1905 she declared: "I wish R., after endowing a cot as provided by the first codicil, to use the balance of the legacy given to him by my will for such charitable purposes as he shall in his absolute discretion think fit." R. disclaimed the legacy :— Held, that a trust was created for the charitable purposes mentioned in the codicils. ADJOURNED SUMMONS. Mary Jackson Burley by her will, dated November 3, 1903, gave to Lieutenant-Colonel Russell a legacy of 2300l., and she declared that if he should die in her lifetime leaving issue then she gave the legacy to his children or child who should survive her. By a codicil dated the same day as the will she declared as follows: "I wish Colonel Russell to use 1000l., part of the legacy given to him by my above will, for the endowment in his own name of a cot in the Ipswich and East Suffolk Hospital, and to retain the balance of the said legacy for his own use and benefit." By a second codicil dated September 29, 1905, she declared: "I wish Colonel Russell, after endowing a cot as provided by the first codicil, to use the balance of the legacy given to him by my will for such charitable purposes as he shall in his absolute discretion think fit." By a deed poll dated July 13, 1909, Lieutenant-Colonel Russell wholly and absolutely renounced and disclaimed the said legacy of 23001. given to him by the above-mentioned will. The testatrix died in 1909. JOYCE J, 1909 Dec. 2, 3. JOYCE J. 1909 BURLEY, In re. ALEXANDER v. BURLEY. This was a summons taken out by the trustees of the will · raising the question (inter alia) whether the said codicils or either of them created any and what trusts or trust of the legacy of 23001. by the said will bequeathed to LieutenantColonel Russell, or of any and what part of the said legacy. Crossman, for the trustees. Younger, K.C., and Ashworth James, for the residuary legatees. Lieutenant-Colonel Russell having disclaimed the legacy, it fails and falls into residue. The codicils constitute merely a precatory wish, not binding upon the legatee. He might have retained the whole of the legacy for his own use. The testatrix has merely expressed a wish and used no such words of command as will impose a trust. No doubt before the recent authorities the words used by the testatrix might have been held sufficient to create a trust: In re Hamilton (1); In re Williams (2); Comiskey v. Bowring-Hanbury. (3) According to those cases the Courts are not so fettered by the older authorities as they might otherwise have been. They will now be guided by the intention of the testator apparent in the will, and not by any particular words in which the wishes of the testator are expressed. Under the will itself the legacy went to Colonel Russell's issue in the event of his predeceasing the testatrix. If he had so predeceased her it could not have been said that the codicils imposed a charitable trust upon his issue. This is a very exceptional trust, if it be one, for it comes to an end with the death of the trustee. Apart from recent Sargant, for the Attorney-General. decisions these codicils would clearly have created a precatory trust. No doubt the law is correctly laid down in In re Williams (2), but I rely upon the expressions of Lindley L.J. in that case where he said (4): "The term 'precatory' only has reference to forms of expression. Not only in wills but in daily life an expression may be imperative in its real meaning although couched in language which is not imperative in form. A request (1) [1895] 2 Ch. 370. (3) [1905] A. C. 84. 1909 BURLEY, In re. ALEXANDER is often a polite form of command.” And Rigby L.J., quoting JOYCE J. Lord Langdale in Knight v. Knight (1), says (2): "The recommendation, entreaty, or wish shall be held to create a trust, first, if the words are so used, that upon the whole, they ought to be construed as imperative." These codicils contain complete simple directions as to what is to be done with the legacy. They are executed solely for that purpose, and if they do not constitute a trust it is difficult to see how in any case a precatory trust could be established. Younger, K.C., in reply. JOYCE J. I may be wrong, but, in my opinion, if this case had been tried twelve or fifteen years ago it would have been unarguable; that is to say, it would not have been possible to argue with any effect that a trust for charitable purposes, for the charitable purposes named, was not created by the instruments in question in this case. But there are recent cases which have thrown doubt upon the old rule or upon the extent of it. This is not like the case of Comiskey v. Bowring-Hanbury (3), in which there were in the same instrument expressions apparently inconsistent, which created an ambiguity compelling the Court to guess almost what upon the whole was the true result of the document and what was the meaning of the testator. Here, there being a will leaving a legacy to Lieutenant-Colonel Russell, we have a later instrument, a separate instrument, a codicil, executed for the purpose, and for the only purpose, of making provision or giving a direction with reference to that particular bequest, presumably to alter that which had been done by the will. The documents that I have to consider are two codicils, the first codicil with reference to the 1000l., one part of the legacy, and the other codicil with respect to the 1300l., the residue. Lordship then read the codicils, and continued :— -] [His Now it is said that the result of the recent cases is to have established the reasonable rule that the Court is to consider in each particular case what was the testator's intention. As Romer J. said in In re Williams (4), quoting from the head-note (1) (1840) 3 Beav. 172. (3) [1905] A. C. 84. V. BURLEY. 1909 BURLEY, In re. ALEXANDER v. BURLEY. JOYCE J. in In re Hamilton (1), "In considering whether a precatory trust is attached to any legacy, the Court will be guided by the intention of the testator apparent in the will, and not by any particular words in which the wishes of the testator are expressed." I may be wrong, but the conclusion at which I have arrived is thisthat by the first codicil the testatrix intended that 1000l., part of the 23001. legacy mentioned in the will, should be applied in endowing a cot in the hospital named, and she intended that to be done without Lieutenant-Colonel Russell having any choice as to whether it should be done or not. So also I think that on the whole her intention, which I infer or gather from the second codicil, was that the 1300l., the balance of the legacy, should be given, employed, or expended in charitable purposes without LieutenantColonel Russell having any choice as to whether that should be done or not, although he was to have a discretion as to the charitable purposes to which it was to be devoted. This in my opinion is clear according to the rule laid down in the old cases, and I do not think that in cases such as this the rule has been altered by the recent decisions. That being my view, I must decide according to the old rule, and it is for the Court of Appeal and not for me to alter that rule with reference to such a case as this. There will be a declaration that according to the true construction of this will and codicils the legacy of 2300l. is given for the charitable purposes mentioned in the codicils, and, if necessary, there must be a scheme. : Solicitors Clements, Williams & Co., for Birkett, Ridley & Francis, Ipswich: Solicitor to the Treasury. (1) [1895] 2 Ch. 370. G. A. S. |