AUSTRALIAN In re. NEVILLE J. different owners of capital inter se, and therefore I have to con1910 sider whether that can be done without recourse to s. 45 of the Act of 1908. Now this company had a capital the amount of which and the number of shares into which it was divided was stated in the MORTGAGE memorandum of association; but as I read the memorandum COMPANY, LIMITED, and the subsequent resolution of 1903 the preferential rights of the owners of the capital inter se were not regulated by the original memorandum, but were regulated by a special resolution which would have the effect of an original article. I think that so far as the preference between the shareholders depends upon their rights under the articles and not under the memorandum, those rights can be modified in the same way that the articles themselves can be modified, and that such modification does not involve an alteration in the memorandum itself. I ought to say that, in the memorandum before me, I think that the operative and material words contained in clause 5 are simply these: "The capital of the company is 1,000,000l. divided into 100,000 shares of 107. each." I think the remaining words may be disregarded. They seem to me to have no effect. That brings me to the consideration of what is the true construction of s. 45 of the Act of 1908. Is it a general obligation in case of alteration of preferential rights between shares, or does it only come into operation where those preferential rights are determined, not by the articles, but by the memorandum of association? I am of opinion that it only applies to cases where those preferential rights are determined by the memorandum of association, and not where they are determined by the articles of association. In the first place I think that the proviso in s. 45 is a proviso limiting the effect of the previous part of the section, and is not in any sense an independent enactment operating beyond the limits of the particular section to which it is attached. It seems to me, therefore, that in cases where a preference has been rightly given by the articles such preference can be modified by special resolution. I am confirmed in the view I take of s. 45 by the 4th article contained in Table A scheduled to the Act, which provides for the division of the share capital into different classes of shares and for the alteration of the rights attaching to any class by a resolution therein specified, which seems to me to contemplate cases where the result can be arrived at without NEVILLE J. any modification of the memorandum of association. I come, 1910 therefore, to the conclusion that the second resolution which follows upon the resolution for reduction of capital is valid. AUSTRALIAN ESTATES AND COMPANY, Now I ought to say one thing, I think, having regard to the MORTGAGE arguments addressed to me. I see no reason why a resolution of this kind should not be made dependent upon the confirmation by the Court of the reduction of capital previously resolved upon. I think the result is that, if and when the confirmation of the Court is obtained, that resolution becomes binding; and if the Court refused its sanction, that resolution would fall to the ground. I know of no limitation in the powers of a company which prevents them passing a resolution in a conditional form of that kind. I think, therefore, that the scheme ought to be sanctioned, and that, having regard to what has taken place, it ought to be prefaced with "The Court being of opinion that the resolutions passed at the meeting were valid "-or words to that effect"sanctions the reduction." Younger, K.C. Then with regard to the use of the words "and reduced," we have a body of evidence to shew that the use of those words in Australia would be seriously misunderstood, and that it would be very unfortunate if the company were required in Australia to use those words. The registrar has hitherto dispensed with the use of those words. NEVILLE J. Then I will dispense with their use. Solicitors: Markby, Stewart & Co.; Godden, Son & Holme. H. L. F. VOL. I. 1910. 2 G 1 PARKER J. 1909 Dec. 16. In re MEECH'S WILL. BUTCHERS' COMPANY v. RUTLAND. [1909 M. 2510.] Charity-Gift to Livery Company of City of London-Devise for General Purposes of Company-Authority to Company or Trustees to make Scheme for Administration of “Charity hereby created." Property was devised to trustees in fee simple, upon trust for and to be held by the Masters, Wardens, and Commonalty of the Butchers' Company of the city of London "for the general purposes of the said company." The testator authorized the company or the trustees "to make and formulate any scheme, rules, regulations, bye-laws, or trusts for the temporary or permanent administration of the charity hereby created," and gave other directions applicable to a charitable bequest :— Held, that the gift was not a charitable gift, and that the company was entitled (subject to obtaining the proper licence) to have the property conveyed for the general purposes of the company free from any charitable trust. Livery companies of the city of London are not, unless there is something special in their charters, charities in any legal sense of the word. THE will of Peter Meech, of Smithfield, London, a past master of the Butchers' Company, which was dated August 31, 1908, contained the following devise: "I devise all that my freehold messuage or farmhouse and farm, with the several parcels of land and buildings belonging thereto, and known as Higher Meerhay Farm situate in the said parish of Beaminster and occupied by the executors of the late John Swaffield, and also the lime kiln erected by me thereon, now occupied by Albert Hann, and also the two freehold cottages, gardens and orchard called Swaffield, near thereto, to my trustees in fee simple, Upon trust for and to be held by the Masters, Wardens, and Commonalty of the Worshipful Company of the Art or Mystery of Butchers of the City of London, for the general purposes of the said company. I authorize the said company or my said trustees, as the case may be, to make and formulate any scheme, rules, regulations, byelaws, or trusts, for the temporary or permanent administration of the charity hereby created, or to vest the trust property or funds in the said Butchers' Company or in any existing charity for any like purposes, and to nominate and appoint any other persons as trustees of the charity hereby created, in addition to or 1909 MEECH'S substitution for my trustees or any of them, and to vest the said PARKER J. trust property or funds in all or any such trustees." And the testator thereby empowered his trustees at the cost of his residuary estate to make any applications to or take any proceedings before any Court or the Charity Commissioners, for BUTCHERS' the purpose of enabling them to retain the said premises unsold, WILL, COMPANY v. or for constituting or confirming any such scheme as aforesaid. RUTLAND. And the testator gave his residuary estate unto his trustees, upon trust after realization thereof, to pay an annuity to his wife, and, after her decease, upon trust to pay certain legacies, and, as to the ultimate residue and the income thereof not therein before otherwise disposed of, he directed that his trustees should stand possessed thereof upon trust to divide the same into thirds, and to pay one third to King Edward's Hospital Fund for London, another one third to the governors of the London Hospital, and the remaining one third to the West Ham and East London Hospital and Dispensary. The testator died on February 1, 1909, and his will was proved on June 9, 1909. An originating summons was taken out by the Butchers' Company against the executors and trustees of the will, the Attorney-General, and the governors of the London Hospital, for (1.) a declaration that, by virtue of the devise in the will, the plaintiffs were entitled to have the farm, the lime kiln, and the two freehold cottages, gardens, and orchard conveyed to them in fee simple, for the general purposes of the company, free from any charitable trust affecting the same, or (2.) if not, that the plaintiffs were entitled to have the same hereditaments conveyed to them in fee simple as trustees for the charitable objects expressed in such will, and that such charitable objects might be defined, and, if necessary, a proper scheme settled for the administration thereof. Romer, K.C., and Prior, for the plaintiffs. No trust for charitable purposes was created, but the gift is simply for the general purposes of the company. The reference to "the charity hereby created" is a mistake, and does not affect the absolute gift for the general purposes of the company. PARKER J. 1909 MEECH'S WILL, In re. Bischoff, for the trustees and executors. Sargant, for the Attorney-General. No objection is raised by the Crown to the conveyance of the property to the company. In a recent case of In re Barnett, Waring v. Paper Stainers' BUTCHERS' Company (1), a similar gift for the general purposes of another COMPANY City company was held not to constitute a charity. v. RUTLAND. A. Grant, K.C., and T. T. Methold, for the residuary legatees. The creation of a charity was intended by the testator. In the face of the expressions used by the testator, the company are not entitled to have the property conveyed to them free from any charitable trust. PARKER J. In this case there appears to me to be undoubtedly, in the first instance, a good and valid gift of the property in question "upon trust for and to be held by the Masters, Wardens, and Commonalty of the Worshipful Company of the Art or Mystery of Butchers in the City of London for the general purposes of the said company." I do not think the words "for the general purposes of the said company" add anything to the words "upon trust for and to be held by the Masters and Wardens of the Worshipful Company of the Art or Mystery of Butchers in the City of London"; but they appear to me to be inserted, as is very generally done, where corporations, such as the Butchers' Company, are known to be trustees of special funds held upon particular trusts, in order to shew that the property is given to them, not on any particular trust, but for their general purposes. That is a form which I have come across a good many times, and I am not sure that I have not used it from time to time myself. It is simply equivalent to a gift to the Butchers' Company. Now that gift to the Butchers' Company is not a charitable gift, because the Butchers' Company was formed under a charter for purposes which are not charitable, though they may involve here and there objects which might, taken alone, be considered to be charitable. The only real question that has to be determined is whether what immediately follows in the will is sufficient, either to make what is prima facie an absolute gift to the company a gift for charitable purposes, or to avoid the gift. (1) Unreported. |