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partly of £4500 consols (the amount of the legacy of £5000 after deducting the legacy duty), partly of £3000 consols (the amount which they had retained to answer the share of the £10,000 attempted to be bequeathed to David, after making the like deduction), and partly of accumulations of the dividends of the last-mentioned share, invested from time to time by the trustees.

A petition was now presented by Birch and Ann, his wife, and Canney and Ann, his wife, praying that the interests of all parties in the £8907, 15s. 9d. Bank annuities, subject to the life interest of Ann Birch in the £4500 Bank annuities, might be declared; that the dividends of the £4500 might be paid to the Petitioner, Birch, during the joint lives of himself and his wife; and that the £3000 Bank annuities and the accumulations might be transferred, as to one moiety, to the trustees of a settlement executed shortly after the marriage of the Petitioners, Canney and Ann, his wife, and, as to the other moiety, to the Respondent, Powell.

Mr. Druce, for the Petitioners. David M'Allister died under age and unmarried; and, although his death occurred before the date of the will, and the testator uses words of futurity-"shall depart this life," yet the share which the testator by his will attempted to give to David, as well of the £10,000 Bank annuities as of the £5000 like annuities, must be held to be included in the gift over to his surviving sisters, Ann and Ellen.

First, it is clear from the authorities that words of futurity, in such context as the present, will be construed so as to include a past event. In Hewet v. Ireland (1 P. Wms. 426) the [272] words "as shall be begotten," used not in a will, but in a deed, were held to include a child ten years of age at the date when the deed was executed. In Wilkinson v. Adam (1 V. & B. 422, 468), under a devise "to the children which I may have by Ann Lewis and living at my decease," natural children, who had acquired the reputation of being the testator's children by her before the date of the will, were held entitled, as upon the whole will intended and sufficiently described : Lord Eldon, C., observing, "With regard to the expression which I may have, though obviously future, yet, upon the whole, it is clear that by those words the testator meant to describe persons then, at the date of the will, in existence." And in Manning v. Chambers (1 De G. & S. 282), where trust funds were settled upon trust to pay the income to one for life, "or until he shall become bankrupt," "and upon his becoming bankrupt" then to pay the income to his wife for her separate use, Knight Bruce, V.-C., held that, although the husband was at the time of the execution of the deed an uncertificated bankrupt, yet the income of his share belonged to his wife. But

Secondly, independently of that class of authorities, it is a settled rule of construction that, where an executory gift is made to take effect in defeazance of a prior gift, i.e., to arise on an event which determines the interest of the prior legatee, and it happens that the prior gift fails ab initio, either by reason of its object, if not existing at the date of the will, never coming into existence; or by reason of such object, if a person in existence, dying in the testator's lifetime, the conclusion that the testator, although he has not in terms provided for the event which has happened, intended, in case of the prior gift failing altogether for want of an object, that the ulterior gift should take effect, is held to amount to a necessary implication: Jones v. Westcomb (Prec. Chanc. 316; S. C. 1 Eq. Ca. Ab. 245, pl. 10), Avelyn v. Ward (1 Ves. sen. 420), Murray v. Jones (2 V, & B. 313; and see 2 Jarm. on Wills, p. 702). In conformity with this rule, in [273] Jarvis v. Pond (9 Sim. 549), where the testatrix directed that her residuary property should, after the death of a daughter, be equally divided among such of her (the testatrix's) sons and daughters as might be living at the daughter's decease, "and in case of the decease of any of my said sons or daughters, the surviving children of any of my said sons or daughters to have their father's or mother's part, Sir L. Shadwell, V.-C. E., held that the children of a son and daughter, both of whom were dead at the date of the will, were entitled to shares of the residue.

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In the present case the intention of the testator is still more clearly implied. event, and the only event, in which he directs the shares which he intended for David, Ann and Ellen to fall into the residue, being the event of all the three dying under age and unmarried.

Mr. H. Cadman Jones, for the trustees of a settlement executed shortly after the marriage of the Petitioners, Canney and Ann, his wife, supported the case of the Petitioners, citing Ive v. King (16 Beav. 46, 55), as being a case more precisely in point. There, the bequest being to Ann Smith and her four brothers nominatim, “and in the case of the death of any of them, then their respective shares to their children;" Sir J. Romilly, M.R., held that, although Ann died prior to the date of the will, her children took by substitution; His Honour observing that he was unable to draw any distinction between the case of a gift to a person known by the testator to be alive, and in the event of his death to his children, and a gift to a person whom the testator may suppose or believe to be living, but who is in fact dead, with a gift over to his children in case of his death; and that the principles which gave effect to the gift over in the former case applied equally to the latter.

[274] Upon the question what construction is to be put upon words of futurity the case of Christopherson v. Naylor (1 Mer. 320, 326), though decided upon another point, shews the opinion of Sir W. Grant, M.R., to have been in favour of the Petitioners. There, in reference to the words "if any child shall happen to die in my lifetime," Sir W. Grant remarked that, though according to strict construction those words imputed futurity, they might have been understood as speaking of the event at whatever time it might happen.

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It is impossible to contend that there is any difference between the words “in case of the decease of any" of certain persons, and the words used in this will: "if any of such persons "shall die."

Mr. James Dickinson, for Powell (who had married Ellen M'Allister, since deceased), also supported the case of the Petitioners.

Mr. Gordon Whitbread, for the residuary legatees. I ask the Court to adhere strictly to the terms of the will: "if any" of these three children "shall depart this life" under age and unmarried, then "the part, share and proportion, or parts, shares and proportions, original and accruing, of his, her or them so dying" shall go to the survivors. This proviso is only to take effect in a future event; and David, who died some months previously, never took any "original share" at all. In no one of the cases cited, which in other respects might seem in point, are words employed so clearly and indisputably pointing to a future event. [THE VICE-CHANCELLOR. The terms in Manning v. Chambers are very strong in that respect: "until he shall become bankrupt;" and there the instrument was a deed, not a will.] [Mr. Druce. In Hewet v. Ireland also, where the words were "as shall be begotten," [275] the instrument was a deed.] All I ask the Court is to construe this will as it stands, and not make a new will for the testator.

Mr. Kent, for the surviving trustee of the will.

A reply was not heard.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I think the construction to be put upon this will is very clear.

Upon the face of the will it is manifest that the testator entertained two intentions: first, to give to David M'Allister, whom he supposed to be alive at the date of the will, a share in both the funds; secondly, in the event of the gift to David being out of the case-that gift failing by whatever means-then to give the shares he had intended for David to his sisters Ann and Ellen.

The testator must be presumed to have believed David to be alive at the date of the will. Had David been then alive the testator's intention as to the benefit he was to take is clear; but it is equally clear that, if asked what he intended to be done if David were then, at the date of the will, dead, the testator's answer would have been his sisters are to take his share. The consequence of a death of any of the three under twenty-one and unmarried, I intend to be, that the survivors shall take the share of the deceased."

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That intention being clearly implied upon the face of the will, the decision in this case must be governed by the principle of that of Avelyn v. Ward, which appears to me directly applicable. There Lord Hardwicke said the question resolved itself into this, whether it was necessary [276] that every particular fact mentioned by the testator should take place; or whether the will was not to be construed according to the sense and intention of the testator, that intention being, that if, in any event, the

first limitation could not take place, the subsequent one should. And, referring to Jones v. Westcomb as an authority in point, the Court determined that the will was to be so construed: the rule being, in the case of a conditional limitation such as that before it, that "if the precedent limitation, by what means soever, is out of the case, the subsequent limitation takes place."

So here, the limitation to David being out of the case, the limitation to his sisters takes place.

Declare the rights of the parties, and let the funds be paid and transferred according to the prayer of the petition, except that the share of Ellen Powell is to be paid to the Respondent, Powell, on his producing letters of administration to his late wife, and the usual evidence of their marriage and her death, and an affidavit that there has not been any settlement affecting her share.

[277] RICCARD v. PRICHARD. Feb. 21, 1855.

[S. C. 1 Jur. (N. S.) 750. See Parish v. Poole, 1884, 53 L. T. 38.]

Equitable Charge. Fund. Common Pleas. Injunction.

An agreement that a certain judgment debt, and interest thereon, should be paid to the Plaintiff out of any moneys which might be recovered by the Defendant in respect of certain claims which he had against third parties: Held to create a valid equitable charge upon these moneys when recovered.

The Defendant having recovered the moneys so due to him in an action, and the same having been paid into the Court of Common Pleas, the Court of Chancery, in a suit by the judgment creditor to establish his equitable charge on the fund, granted an injunction to restrain the Defendant from receiving it until he should have paid the judgment debt and interest, and the costs of the suit.

The Plaintiff in this suit, being a judgment creditor of the Defendant, caused him to be taken in execution and imprisoned; and he now filed this bill against the judgment debtor, stating these facts, and stating in paragraph 4 that, in January 1852, "various representations were made to Mr. Whitaker, the Plaintiff's solicitor, by Mr. Phillips, the Defendant's solicitor, as to the consequences which would ensue on the continued imprisonment of the Defendant, as to certain claims which he was prosecuting against the official manager of the London and Warwick Railway Company and other parties, and in which the said Mr. Phillips was acting as his solicitor; and it was ultimately agreed between the said Mr. Whitaker, as the Plaintiff's solicitor, and the said Mr. Phillips, as the Defendant's solicitor, with the full knowledge and authority of their respective clients, that the Defendant should be discharged from custody under the said execution, and should give the Plaintiff a new judgment for £548, 10s., being the amount of the debt and agreed costs; and that the Plaintiff should be paid the amount of his said judgment debt and interest thereon out of any moneys which might be recovered by the Defendant in respect of his aforesaid claims."

The bill then stated that the Defendant was accordingly discharged, and the judgment given as agreed, and that the Defendant's solicitor with his written authority had given an undertaking in writing to the Plaintiff's solicitor "to pay the whole amount due at the time of such payment upon the judgment in the second action, or so much [278] thereof as the funds then in our hands may be sufficient to satisfy, out of any moneys which may be received by us from the claims pending on behalf of Mr. Prichard, and which may remain in our hands after payment and full satisfaction of any costs or lien which may be due to us." The bill stated that the Plaintiff had ever since forborne to enforce his judgment, and that, in January 1854, the Defendant recovered judgment against the official manager of the London and Warwick Railway Company for £3538, 4s. 4d.; and certain canal companies being found indebted to the said official manager in a larger sum, the Defendant, by his said solicitor, applied to a Judge at Chambers, under the 17 & 18 Vict. c. 125, s. 61,

to attach such debt to answer the Defendant's judgment against the official manager; and, under an order made by the Judge, the canal companies paid the amount of the Defendant's judgment debt into the Court of Common Pleas. The bill further stated that the Defendant had since changed his attorney, and, on Messrs. Phillips & Sons applying to the Court for payment to them of the money so paid in, he opposed them successfully. And the bill prayed that the Plaintiff might be declared to have a valid charge for his said judgment debt, and interest thereon, upon the said fund in the Court of Common Pleas; and for an injunction to restrain the Defendant, his attorneys or agents, from receiving or attempting to receive such sum until he should have paid such judgment debt and interest, and the costs of this suit.

The principal facts above stated were admitted to be true by the Defendant's answer, as appears in the judgment.

An injunction was obtained ex parte, in the terms of the prayer.

Mr. Daniel, Q.C., and Mr. Renshaw, now moved to dis-[279]-solve the injunction, relying on Rodick v. Gandell (1 De G. Mac. & G. 763), where a man, being indebted to his banker, and having a large debt owing to him from a railway company, wrote to the solicitors of the company, authorising them to receive the money due to him from the company, and requesting them to pay it to the banker, which they, by letter to the banker, promised to do; and this was held not to amount to an equitable assignment, because it was not directed to the railway company, nor was notice of it given to them; it was a mere authority to receive money, which might or might not be acted upon.

Mr. Rolt, Q.C., and Mr. Southgate, contrà, were not heard.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. There can be no doubt that it is necessary to continue this injunction.

The bill contains an averment, which is not denied, of a distinct agreement, which takes this case out of the decision in Rodick v. Gandell (Ibid.), or rather places it in exact accordance with what Lord Truro, in that case, considered to be the result of all the authorities. [His Honour read the 4th paragraph of the bill as above stated, and continued:]-I apprehend that, if A. tells B. that he expects that £10,000 are coming to him by a given day, and agrees out of that to pay B. £5000, that is a good agreement to constitute a charge upon the fund. That is substantially the agreement in this case. In Rodick v. Gandell (Ibil.) Lord Truro collects the result of numerous authorities, summing them up by saying that two things were established: "The extent of the principle to be deduced," he says, "is that an agreement between a debtor and a creditor that [280] the debt owing shall be paid out of a specific fund coming to the debtor, or an order given by a debtor to his creditor upon a person owing money or holding funds belonging to the giver of the order, directing such person to pay such funds to the creditor, will create a valid equitable charge upon such fund, in other words, will operate as an equitable assignment of the debts or fund to which the order refers.”

This case is brought exactly within the former of those rules. It is an agreement between debtor and creditor that the debt should be paid out of a specified fund coming to the debtor. That averment which I have read is not denied. The first part of it, concerning the representations made by Mr. Phillips, is ignored by the Defendant in his answer. It is admitted that Mr. Phillips was the Defendant's solicitor; and all that is said in answer to the rest of that paragraph is-that, save as therein appears, the Defendant does not know whether such agreement was made, or whether or not with his knowledge. And there is nothing in the answer to which that word "save" can apply, amounting to a denial that this agreement was made with his knowledge. Of course, therefore, that is equivalent to an admission of the averment for the purpose of this motion; and, that being admitted, the case seems to be at an end. The injunction must be continued, and with costs.

[281] SCOTT. BENTLEY. Feb. 14, 20, 1855.

[S. C. 3 Eq. R. 428; 24 L. J. Ch. 244; 1 Jur. (N. S.) 394; 3 W. R. 280. Statement of Morison's case, 1 K. & J. 283-5; corrected, Grimwood v. Bartels, 1877, 46 L. J. Ch. 788. See In re Garnier, 1872, L. R. 13 Eq. 539; In re Brown [1895], 2 Ch. 671; Thiery v. Chalmers [1900], 1 Ch. 82; Didisheim v. London and Westminster Bank [1900], 2 Ch. 15; New York Security and Trust Company v. Keyser [1901], 1 Ch. 670.] Jurisdiction. Curator Bonis. Assignees. Executors. Parol Trust of Personalty.

A curator bonis, duly appointed in Scotland to a person found lunatic there, can recover and give a good discharge for personal property of the lunatic in this country.

So, assignees of a bankrupt can recover property of the bankrupt out of the jurisdiction.

Executors and administrators have not this right, because the jurisdiction of the
Prerogative Courts does not extend beyond their respective provinces.
The authority of guardians in this respect is doubtful.

Where the owner of an estate charged with an annuity in favour of the lunatic had acknowledged that she had in hand certain arrears of the annuity, which she was ready to pay to any person on his behalf who could give a good receipt for it: Held, that this was a declaration of trust which entitled the curator to sue in equity for those arrears.

Timothy Bentley was entitled to an annuity of £1300 a year for his life, by virtue of an indenture, dated in 1837, whereby, in consideration of his having, by a deed of even date, conveyed to his brother, Henry Bentley, all the real and personal estate of him, the said Timothy Bentley, the said Henry Bentley granted to the said Timothy Bentley, for his life, an annuity or rent-charge of £1300, charged upon certain real estate therein mentioned, and payable on the 3d day of April in every year; and by the same indenture Henry Bentley covenanted for himself, his heirs, executors and administrators, well and truly to pay this annuity, which was further secured by his bond of even date and by his warrant of attorney, and a judgment afterwards entered up thereon.

In 1849 Timothy Bentley was residing at Edinburgh, and there became of unsound mind, and a curator bonis to him was appointed, according to the Scotch law, with the following ceremonies :-A certificate of his lunacy upon the soul and conscience of two properly qualified medical men was obtained, and was then set forth in a petition, which was presented by his wife to the sheriff of the county in which Timothy Bentley resided, praying that the sheriff would grant a warrant to the managers of the Royal Edinburgh Asylum to receive and detain the lunatic. The warrant was granted, and he was placed in the asylum; and then the Lords of Council and Session, on the further petition of the lunatic's wife, appointed the Plaintiff, Scott, by their act and decreet, to be curator bonis to the said Timothy Bentley, with the usual powers, he finding caution before extract. The Plaintiff having found caution under [282] the 12 & 13 Vict. c. 51, subsequently in January 1850 obtained the decreet to be extracted. The Plaintiff then applied to the Defendant, who was the executrix and devisee upon trust of all the real estate of Henry Bentley, who had died in 1848, for payment of the annuity, which was in arrear since April 1848. The Defendant objected that the Plaintiff could not give a good discharge for the annuity; and the Plaintiff therefore filed this bill to recover the arrears with interest, and to obtain an order for the future payment of it to him as such curator bonis.

The bill set forth an opinion of eminent Scotch counsel as follows:-" Although secured upon real estate, the arrears or past due payments of the annuity would, in Scotland, be regarded as personal estate. The appointment of the memorialist as curator implies a general power to uplift the personal means and estate of the lunatic, subject to an obligation on the part of the curator (for which his cautioner is answerable) to apply the same property for the lunatic's behoof."

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