[630] In the Matter of THE TRUSTS OF THE WILL OF PETER SOWERBY. May 1, 1856.

[See Stevens v. King [1904], 2 Ch. 33.]

Will. Gift for Creditors in Bankruptcy. Lapse.

A testator, who had been bankrupt, and had obtained his certificate thirty years before the date of his will, directed by his will that all his debts should be paid, including the debts proved and not paid in full in the bankruptcy, and directed his executors to pay to the official assignee in the bankruptcy, in trust to pay all such creditors so much money as would make the dividend in the bankruptcy equal to 20s. in the pound. Held, that the benefit thereby intended to be conferred on a creditor did not lapse by his death in the testator's lifetime.

Peter Sowerby, by his will, dated in 1851, appointed Martin and Williamson his executors; and the will contained a bequest in the following terms:

"I direct my just debts to be paid, in which I include the unpaid in full debts proved on the estate of Peter Sowerby the elder and Peter Sowerby the younger, in a commission of bankruptcy issued against the said Peter Sowerby the elder and Peter Sowerby the younger, in or about February 1822. Thomas Avison, of Liverpool, was then the solicitor to the commission. I hereby will and direct my aforesaid executors and trustees, within three years from the date of my decease, to pay unto the official assignee of the aforesaid bankrupt estate, or to some authorised person to be appointed by the Hight Court of Chancery, in trust to pay all the aforesaid creditors who have proved their debts in the aforesaid commission, so much money as will make the dividend on the aforesaid estate equal to 20s. in the pound on all the debts so proved; no interest thereon to be allowed or paid."

The testator was one of the bankrupts mentioned in the will, and had long since obtained his certificate in the bankruptcy.

One of such creditors had himself become bankrupt, and had subsequently died in the lifetime of the testator. The question was whether his interest under the bequest had lapsed.

[631] Mr. Cairns, Q.C., for the assignees of the deceased creditor, argued that this gift was not in the nature of a legacy to each individual creditor, but was a bequest of a sum to the assignee in the bankruptcy of the testator, to be applied for the benefit of the creditors. He cited O'Connor v. Haslam (5 H. L. Cas. 170) and Philips v. Philips (3 Hare, 281), where a testator, by his will, dated in 1825, bequeathed his residuary personal estate to trustees, upon trust, to divide the ultimate surplus of the proceeds thereof "unto and amongst the several persons who were my creditors at the time I made and executed a conveyance of my estate and effects for their general benefit in or about the month of October 1802, their respective executors and administrators. . . excepting out of such calculation the debt due to my late brother, William Philips, or his administrator;" and it was held that the representatives of creditors who had died in the testator's lifetime were entitled to share.

Mr. Rolt, Q.C., and Mr. Bazalgette, for the executors.

The question is, is this a legacy or a debt? if a legacy, it must have lapsed by the death of the legatee in the testator's lifetime. It cannot be a debt, because all the debts in the bankruptcy were extinguished by the certificate; and that constitutes the chief difference between this case and those which have been cited. [THE VICECHANCELLOR. A bequest to the official assignee in the bankruptcy, in trust to pay the debts, would be good.] Not if the cestui que trust died in the lifetime of the testator. In Coppin v. Coppin (2 P. Wms. 295) it was held that legacies to creditors of the amount of debts which they had previously released were mere voluntary gifts, like any other legacy; and in Williamson v. Naylor (3 Y. & C. Exch. 208), where representatives of deceased creditors were held entitled, the [632] debts had not been in any way discharged. Then, here the testator intended a personal benefit to

each of the creditors, and not to the assignee of any who might have become bankrupt, or to the Crown if any were felons.

VICE-CHANCELLOR Sir W. PAGE WOOD. I do not say that this will is wholly free from difficulty; but I think that the intention is so manifest that the difficulty is solved.

What occasions the difficulty is that the bequest is in the nature of bounty, for the debts are actually barred by a certificate in bankruptcy; and therefore whatever the creditors in the bankruptcy take under this gift must be by the gift of the testator, and they could not come in competition with his own creditors at his death. Then, to whom is the gift made? A direction to the executors to pay all the debts in bankruptcy which were unpaid would be a valid gift in law. The question is whether the intention is the discharge of this moral duty, or whether the testator merely intended a bounty to the creditors individually. If the will had stopped at the first clause there would have been no question. The words there are, "I direct my just debts to be paid, in which I include the unpaid in full debts proved on the estate of Peter Sowerby the elder and Peter Sowerby the younger, in a commission of bankruptcy issued against the said Peter Sowerby the elder and Peter Sowerby the younger, in or about February 1822."

If there had been solely this direction the executors would have been bound to find out what debts there were. They could not be debts in one sense, because they were discharged; but the executors would be bound to find them out and to take care that they were satisfied in full. The testator, [633] however, proceeds to say, "I direct my aforesaid executors and trustees, within three years from the date of my decease, to pay unto the official assignee of the aforesaid bankrupt estate, or to some authorised person to be appointed by the High Court of Chancery." So far, the object was simply to save his executors trouble, by putting it in a proper channel to have the estate administered as in bankruptcy; and then come the words which create the embarrassment, "in trust to pay all the aforesaid creditors who have proved their debts in the aforesaid commission, so much money as will make the dividend on the aforesaid estate equal to 20s. in the pound on all the debts so proved.”

I remark, in the first place, that the reference to the aforesaid creditors is not very exact. The testator had not previously named any creditors, and the aforesaid creditors means no more than what he had before said, namely, that he wished all his debts to be paid; and therefore I am justified in reading this as though he had said, "I wish that there should be paid to the official assignee such a sum of money as will make up a certain dividend on all the debts which have been proved." I think that this is the effect of his words, taking into consideration his clear desire to have all the debts established in the bankruptcy provided for, as expressed in the first part of the clause, and also the direction that payment should be made to the official assignee, or to some other trustee appointed by the Court of Chancery to pay the dividends to such creditors. It is a bounty no doubt, but it is given with an expression of a desire on the part of the testator, which ought to be taken into consideration, that full justice should be done in respect of all that was left unpaid at the time of the bankruptcy. There being this manifest intention on the part of the testator that all his debts should be paid, the question is whether it is possible to conceive that the testator's sense of [634] justice in the matter would be satisfied by depriving of their shares any of the creditors who might have died in the interval between the bankruptcy and his own death, especially as the will was made thirty years after the bankruptcy, as appears upon the face of it. I cannot conceive that this was the testator's intention.

I consider that this is a legacy to the official assignee of so much money as would make up a dividend of 20s. in the pound to all those creditors who have proved their debts.

The other difficulties do not much affect my mind. In the case of the creditors who are dead the assignee will hold the dividend in trust for their representatives. And with respect to the suggestion that some creditor might since have become a felon, I cannot suppose that the testator had at all considered or cared how, in such a case, the Crown might adjust its claim. I quite admit the distinction between this case and the authorities cited, but I hold this to be a good bequest to the official assignee for the purpose stated.

[635] TEMPEST v. TEMPEST. June 25, 26, 27, 1856.

[S. C. varied on appeal, 7 De G. M. & G. 470; 44 E. R. 184 (with note).]

Will. Codicil. Attestation. 1 Vict. c. 26, s. 15. Ornaments of Person and House. Charitable Bequests. Demonstrative Legacy. Costs.

Bequest by will, dated in 1849, of an annuity to A. Codicil revoking other legacies and confirming the will, was signed by A. as an attesting witness. Held, that the annuity given to him by the will was not thereby made void.

Bequest of "household furniture, plate, linen, china, glass, books, pictures, plated articles, prints and all and singular other my household furniture and effects, which at the time of my decease shall be in and about my said mansion-house: Held, not to include articles exclusively of personal ornament, and not adapted for the use or ornament of the house.

Bequest of charitable legacies, with a direction that they should be paid in precedence to the other pecuniary legacies out of such part of the testator's personal property not specifically bequeathed, as was by law applicable for charitable purposes. This fund being insufficient to pay all the charitable legacies: Held, that, following out the principle of Robinson v. Geidard (3 Mac. & G. 735), the debts, and funeral and testamentary expenses, and the costs of a suit for administration, must be paid, in the first instance, out of the personal estate savouring of realty.

Anna Maria Tempest, by her will, dated in 1849, after devising her mansion-house and estate, called the Grange, upon certain trusts, in strict settlement, made bequests as follows:-"I give and bequeath my household furniture, plate, linen, china, glass, books, pictures, plated articles, prints and all and singular other my household furniture and effects, which, at the time of my decease, shall be in or about my said mansionhouse, to the said Edward Meynell, John Briggs and Simon Thomas Scroope, their executors, administrators and assigns, in trust for the person or persons for the time being entitled to the actual possession of my said mansion-house under and by virtue of the limitations contained in this my will, so that the same may go and belong to my said mansion-house and be held and enjoyed therewith as and in the nature of heirlooms; yet so that, for the purpose of transmission, my said household furniture, plate and other effects shall not vest absolutely in any person or persons hereby made tenant in tail male, unless such person or persons shall respectively attain the age of twenty-one years, or depart this life under that age leaving issue of his body living at the time of his decease. And I empower my said trustees, or the trustees or trustee for the time being of this my will, to decide conclusively, in case of dispute, what articles the last bequest shall be deemed to comprise. And I direct that my executors hereinafter named shall, within one calendar month [636] after my decease, cause an inventory to be made of the said heirlooms, and place a copy of such inventory, signed by them and by the person then entitled to the enjoyment of the said heirlooms, among the muniments of title to my said mansion-house, to be kept therewith for the use and information of the person and persons who shall from time to time become entitled thereunto, and deliver another copy to the said Edward Meynell, John Briggs and Simon Thomas Scroope, or such of them as shall act in the execution of this my will, to be kept by the trustees or trustee for the time being of this my will. I give and bequeath to the person or persons who, at the time of my decease, shall be the trustee or trustees of the Roman Catholic Church adjoining my said mansion-house, and lately erected by my dear mother, all the plate, plated articles, ornaments, vestments, organ and church furniture, and other effects usually used in and about the said church, or the sacristy thereunto belonging, or otherwise in the celebration of the Roman Catholic divine service in the said church, to be held by them and the future trustee and trustees for the time being of the said church, for and towards the promotion and support of the Roman Catholic religion, and the decent and proper observance and performance of the rites and services thereof at and in the said church, and upon such and the V.-C. XIV.-30*

like trusts as will best and nearest correspond with the trust, powers and provisions then subsisting or capable of taking effect of and concerning the said church, or as near thereto as the different nature of the property will admit of." The will then contained several charitable legacies, and, among others, legacies of £600 each to the presidents of certain colleges, and a legacy of £600 "to the said Right Reverend John Briggs, or, if he should die in my lifetime, then to the person who, at my decease, shall hold the office of Vicar Apostolic of the said Yorkshire district of England, or perform the chief duties now performed by the said John Briggs in respect of that office. . . . And I direct such [637] legacies of £600 each to be paid to such presidents and the said John Briggs, or, if he should die in my lifetime, then to the person who for the time being shall hold the office of Vicar Apostolic of the said Yorkshire district, or perform the chief duties now performed by the said John Briggs in respect of that office, upon their respective receipts for the same. I give and bequeath to the said John Briggs, or if he should die in my lifetime, then to the person who, at my decease, shall hold the office of Vicar Apostolic of the said Yorkshire district, or perform the chief duties now performed by the said John Briggs in respect of that office, the sum of £1000; to the Right Rev. Thomas Joseph Brown, Doctor of Divinity, Roman Catholic Bishop of Appolonia, and Vicar Apostolic of the district of Wales, now residing at Chepstow in the county of Monmouth, or, if he should die in my lifetime, then to the person who, at my decease, shall hold the office of Vicar Apostolic of the said district of Wales, or perform the chief duties now performed by the said Thomas Joseph Brown in respect of that office, the like sum of £1000. And to the said William Waring, or, if he should die in my lifetime, then to the person who, at my decease, shall hold the office of Vicar Apostolic of the said eastern district, the like sum of £1000. And I direct that such three several legacies or sums of £1000 each shall be severally paid to the several persons respectively to whom the same are severally and respectively given and bequeathed, upon their respective receipts for the same, who shall respectively forthwith severally invest the same respectively in such names, upon Government funds or securities of Great Britain and Ireland, or any foreign State, and vary the investment from time to time for others of the kinds above prescribed, as often as it may be thought proper, and settle the same in three several legacies or sums of £1000 each, and the funds and securities for the same severally and respectively, and the several and respective interests and annual incomes, by three several deeds in writing, upon such trusts, with such powers, and [638] in such manner as in their several and respective discretions will best and most effectively secure the payment and application of the same several and respective interests and annual incomes of the same three several sums for or towards the perpetual maintenance and support of themselves severally and respectively, and also severally and respectively of the several and respective person and persons succeeding them, or any or either of them, in the said offices of Vicars Apostolic of the said Yorkshire, Welsh and eastern districts, or in the performance of the chief duties now performed by them, or any or either of them, in respect of those offices; but always so that the said firstly mentioned sum of £1000, and the funds and securities in or on which the same may from time to time be invested, and the interest and annual income thereof respectively, may at all times be separately, solely and entirely in trust, and applicable and applied, for or towards the perpetual maintenance and support of the said John Briggs, and every person succeeding him in the said office of Vicar Apostolic of the said Yorkshire district, or in the performance of the chief duties now performed by the said John Briggs in respect of that office, so long as he shall respectively hold such office or perform such duties, and no longer. I give and bequeath to the said Edward Meynell, John Briggs and Simon Thomas Scroope, their executors, administrators and assigns, the sum of £5000, upon trust to lay out and invest the same in the purchase of a competent share of the Parliamentary stocks or public funds of Great Britain, or upon Government securities in England, or upon the security of any company or body established by Act of Parliament or charter from the Crown, or by law allowed for charitable investments, in their own names, with power to alter and vary the said stocks, funds and securities into others of a like nature, from time to time, as they shall think proper. And upon further trust to pay the interest and annual income of the stocks, funds and securities,

from time to time, [639] as and when the same shall become due and payable, in equal tenth parts or shares, to the Roman Catholic secular clergymen, for the time being from time to time duly appointed by the said John Briggs, or other the person for the time being holding the said office of Vicar Apostolic of the said Yorkshire district, or performing the chief duties now performed by the said John Briggs in respect of that office, to and performing the duty and service of, at, or in ten of the poorest and most necessitous Roman Catholic missions, churches or chapels in the said Yorkshire district, to be named in writing within twelve months next after my decease, by and at the discretion and under the hand of the said John Briggs, or other the person for the time being holding the said office of Vicar Apostolic of the said Yorkshire district, or performing the chief duties now performed by the said John Briggs in respect of that office, for or towards the perpetual maintenance and support of such Roman Catholic secular clergymen ; and in default of such nomination by the said John Briggs or such other person as aforesaid, then to the Roman Catholic secular clergymen for the time being, from time to time duly appointed as aforesaid to and performing the duty and service of, at, or in ten of the poorest and most necessitous Roman Catholic missions, churches or chapels in the said Yorkshire district, according to and in the discretion and judgment of the said Edward Meynell, John Briggs and Simon Thomas Scroope, and other the trustees and trustee for the time being of this my will, for or towards the perpetual maintenance and support of such Roman Catholic secular clergymen. I also give and bequeath the following legacies (that is to say), to the poor of Leeds, in the county of York, the sum of £100; to the poor of Masborough, in the county of York, the sum of £20; to the poor of Ackworth aforesaid, the like sum of £20; to the poor of Pontefract, in the county of York, the like sum of £20; to the poor of Barnsley, in the county of York, the like sum of £20; and to the [640] poor of Dewsbury, in the county of York, the like sum of £20. And I direct that the six last-mentioned legacies shall be respectively paid to the incumbent priests of the Roman Catholic churches or chapels for the time being of the respective places in favour of the poor whereof I have bequeathed the same respectively, to be distributed at their discretion, upon their several receipts for the same legacies. And I direct that the charitable bequests bequeathed by this my will shall be paid in precedence of the other pecuniary legacies hereby bequeathed, out of such part of my personal property not specifically bequeathed as is by law applicable for charitable purposes. I give and bequeath to my chaplain Robert Thompson, who now resides in the lodge on the east side of my said mansion-house, and his assigns, during his life, one annuity or yearly sum of £50, to be paid to him by equal quarterly payments, clear of all deductions, the first quarterly payment thereof to be made at the expiration of three calendar months next after my decease. . . . I give and bequeath all the residue and remainder of the personal estate and effects whatsoever and wheresoever to which I may be entitled at my decease to the said Edward Meynell, John Briggs and Simon Thomas Scroope, their executors, administrators and assigns, upon trust to convert, collect and get in the same, and to lay out the money to arise therefrom in the purchase of freehold hereditaments in fee-simple in possession, or of copyhold or customary, or leasehold tenements (such leasehold tenements to be held under a renewable lease or leases for lives or for years, or for a term of years absolute, whereof at least fifty years shall be unexpired), adjoining, or near to, and convenient to be held with my said mansion-house and hereditaments at Ackworth aforesaid, or to be acquired under this provision; and to settle, or cause to be settled, the hereditaments or tenements so to be purchased, to, upon, and for such of the uses, trusts, intents and purposes, and subject to such of the provisions and powers herein limited or express-[641]-ed concerning my said mansion-house and hereditaments herein before devised, as shall be subsisting, or as near thereto as may be." And the said testatrix, by her said will, appointed the said Edward Meynell, John Briggs, Simon Thomas Scroope and Robert Thompson executors thereof.

Anna Maria Tempest in 1854 made a codicil to her will, and thereby she revoked one bequest in her will and substituted another for it; and in all other respects she confirmed her said will. To this codicil Robert Thompson was an attesting witness.

Anna Maria Tempest died in 1854.