MORRIS v. GLYNN. [226] 1859, July 7. Rolls Court. [ *227 ] one established for the purpose of raising that ore, manufacturing it themselves and selling it in its manufactured state. It would introduce a rule which the Court could not safely follow, if it were held, that the shares of a Company *established for letting land would be within the Mortmain Act, but that one whose object was to cultivate the land would not. Or if it were decided, that where a Company sells crude iron ore, a bequest of its shares to a charity would be obnoxious to the statute, but if the Company itself manufactures the iron it would not. of The only question is, whether the substantial nature and object of this Company is a dealing with the land for the purpose making profits out of it. If it be, then, in my opinion, this bequest is obnoxious to the statute, but if the holding of land be only ancillary to an ordinary trading purpose, then it is not. I think this comes within the first class, and I will answer the case accordingly. ARMSTRONG v. CLAVERING. (27 Beav. 226-228.) The plaintiff acted as the land agent and house steward of the testator, but he resided out of the house: Held, that he was entitled, under a bequest "to all my servants and day labourers who shall be in my service at the time of my death one full year's wages." THE testator Sir Thomas John Clavering, by his will dated in 1840, bequeathed certain annuities and legacies in the words following: other "I give and bequeath the several annuities hereinafter mentioned to the several persons hereinafter named, during their respective lives, or to such one or more of them as may be in my service at the time of my death, that is to say, an annuity of 401. to my steward Charles Armstrong, and an annuity of 201. to each of my servants " T. F., A. S. and C. W. He then gave annuities to the "servants," and proceeded in these terms: "I bequeath to all my servants and day labourers who shall be in my service at the time of my death one full year's wages above what may be then due to them respectively, and I direct the same to be paid to them respectively within six calendar months next after my death." In a codicil dated in 1843 there was the following clause: "I do hereby, in case my wife Dame Clara Clavering shall not survive me, but not otherwise, revoke, as far as concerns the annuitants named in my said will or hereinafter named in this codicil, the bequest made by my said will to all my servants and day labourers who shall be in my service at my death, one full year's wages above what then shall be due to them ARMSTRONG respectively." The testator died in 1853, leaving his wife surviving. Charles Armstrong, who was steward to the testator at his death, claimed, by this suit, a legacy of 300l. under the bequest of "one full year's wages" to "all my servants and day labourers." It appeared, from the evidence, that in 1831 the plaintiff was appointed land agent of the testator, who resided about three months at his mansion-house, called Greencroft, in Durham, at a salary of 300l. a year, with a cottage residence on the estate. He gradually became entrusted with the duties. of house steward to the testator, and he engaged and dismissed the servants, and had the ordering of all necessaries required in the testator's establishment at Greencroft, and made all payments of tradesmen's accounts and servants, and weekly and day labourers' wages. Whilst the testator was travelling in the counties of Northumberland or Durham, for the purpose of looking over his estates or otherwise, the plaintiff generally accompanied him and paid the travelling expenses. The plaintiff was also permitted to devote his *unemployed time in acting as land agent *to several large neighbouring landed proprietors. The plaintiff, when he went to Greencroft to see the testator on business, was accustomed to dine at the testator's table and sit and converse with him, and it was said, on behalf of the defendants, that this was inconsistent with the position of servant;" but the plaintiff stated, that he was, on such occasions, treated in a dependent situation, and in the position of a confidential servant or secretary, and that such was the custom of the large landed proprietors in the neighbourhood. Mr. R. Palmer and Mr. Haig for the plaintiff, insisted that the plaintiff was entitled to a year's salary. They cited Bulling v. Ellice (1). Mr. Follett and Mr. Hughes, for the defendants, the executors, argued that the plaintiff was in a superior position to that of a servant, and that his claim could not be maintained. The MASTER OF THE ROLLS, however, declared that the plaintiff was entitled to 3001., in respect of the bequest to all his servants who should be in the testator's service at his death of one full year's wages (2). (1) 9 Jur. 936. (2) See Ogle v. Morgan, 91 R. R. 115 (1 D. M. & G. 359); Blackwell v. CLAVERING. [ *228 ] R.R.-VOL. CXXII. 25 1859. July 8. Rolls Court. [229] [ *230 ] PEARSON . THE AMICABLE ASSURANCE (27 Beav. 229–236.) Effect given to a voluntary assignment of a policy of assurance containing an irrevocable power of attorney. Ox the 19th of June, 1828, the Reverend George Townsend, Prebendary of Durham, being desirous of effecting an assurance on his life, in the sum of 3,000l. in the corporation of the Amicable Society, a policy of that date, under the seal of that corporation, was executed and given to him, whereby he became a member of the corporation on fifteen specified shares; and the society obliged themselves to pay to his executors, administrators or assigns, such a proportion or share of the joint stock or funds of the society as would become due on the death of George Townsend, according to the charters and bye-laws of the society. On the 15th of September, 1828, George Townsend executed a voluntary settlement of the policy of assurance, and thereby, in consideration of the natural love and affection which he had and borc unto his father and mother and brothers and sisters, he assigned the policy of assurance and all benefit and advantage thereof respectively, and all sums and sum of money to be received in respect of the shares in which he had become a member of the society, or otherwise in respect of the policy, to two trustees, upon certain trusts for his father, mother, brothers and sisters. The deed contained the usual irrevocable power of attorney from Mr. Townsend to the two trustees. And Mr. Townsend thereby covenanted with the trustees to pay "the annual premium of 971. 10s. as and when the same should become due and payable, and do all other acts and *things necessary to keep the policy of assurance on foot." And also that he and his heirs, &c., at all times thereafter, would "make, do and execute, or cause and procure to be made, done and executed, all and every such further and other acts, deeds, things and assurances, for establishing, corroborating and confirming these presents, and every clause, matter and thing therein contained," and for better enabling the trustees "to perform and trustees" or any person or persons interested in the premises" execute all the trusts hereby in them reposed,” should be required. as by the Mr. Townsend died in 1857, having in the meanwhile duly kept up the policy. On his death the amount was claimed by the trustees of the settlement of 1828, but their claim was re sisted by the executors, who gave notice to the office not to pay the amount to the trustees. The trustees instituted this (1) In re King, Sewell v. King (1879) 14 Ch. D. 179, 49 L. J. Ch. 73. suit against the office and the executors, praying a declaration, that under the deed of 1828, the plaintiffs were entitled to the moneys payable on the policy, and to apply it on the trusts of the deed of 1828. The Assurance Company paid the amount into Court, and were dismissed before the hearing, but without prejudice to any question. Mr. Selwyn and Mr. Hardy for the plaintiffs: The case is governed by Fortescue v. Barnett (1), which is precisely in point. Besides, the power of attorney and the covenant for further assurance of themselves render the assignment, though voluntary, binding and effectual. If this be not a perfect voluntary settlement of the policy it would be impossible to make one, however meritorious might be the object. Mr. R. Palmer, Mr. Speed and Mr. Fischer for the defendants: [It is clear from the remarks on Fortescue v. Barnett, made by Lord COTTENHAM in Edwards v. Jones (2), that he did not approve altogether of that decision, for he explains it upon its being the usage of the office to recognize the assignee. The power of attorney and covenant for further assurance do not amount to a declaration of trust in favour of mere volunteers.] (They cited Colman v. Sarrel (3), Ex parte Pye (4), Jefferys v. Jefferys (5), Bridge v. Bridge (6), Weale v. Ollive (7), Beech v. Keep (8), Antrobus v. Smith (9), Ward v. Audland (19), Dening v. Ware (11), Dillon v. Coppin (12).) THE MASTER OF THE ROLLS: When I first heard this deed stated, I entertained no doubt of the right of the plaintiffs to recover, and the able and elaborate arguments of three learned counsel, and the long citation of authorities, has only confirmed me in the view which I originally entertained. No person can state too strongly to command my assent the proposition, that if a voluntary assignment of any property, is imperfect and incomplete, and the assistance of a court of equity is required to give effect to it, this Court will not interfere to perfect the instrument. I also fully admit, that in these cases there is a distinction (1) 41 R. R. 5 (3 My. & K. 36). (8) 104 R. R. 501 (18 Beav. 285). (11) 111 R. R. 323 (22 Beav. 184). 388 PEARSON r. THE AMICABLE ASSURANCE OFFICE. [ *233 ] 1859. CH. between that species of instrument which, by assignment, passes the property, and that which simply operates as a declaration of trust, and I agree that this is not a declaration of trust. The question is, whether this is a complete instrument, or whether it requires the assistance of a court of equity for its enforcement? I am of opinion that it is a complete and perfect instrument, and I will state why I think so. The If this were an assignment of the policy for value, and the purchaser had come to this Court for its assistance to render the assignment more complete, what would remain to be done? The assignor would say, "what can I do more than I have already done? If you had told me, out of Court, what further assurance or what further deed or assignment to make this instrument more complete I would have executed it." question, whether anything remains to be done to complete the assignment of a policy, is exactly the same, whether it arises upon a voluntary instrument or upon one for valuable consideration whether it be one or *the other, the question must be, what is there that the assignee can require the assignor to do to make the instrument more complete. The error in the argument of the defendants is this: it is assumed that this is a suit in which an assignor has come here to ask the aid of the Court in making this instrument more complete; but he does nothing of the sort. It is said by the defendants, "if the plaintiffs do not require the assistance of this Court, why do they not proceed at law; " but the proceeding suggested in this case would be against the executors; this is not a suit against the executors, it is a suit against the Insurance Company. The Insurance Company say, "we are perfectly ready to pay; we do not contest your claim; you want nothing to make the instrument more complete, and we are ready to pay the amount, but we must not remain open to two suits; and, therefore, as the executors raise an adverse claim to the policy, it is not for us to decide whether it is a valid claim or not, and we require the assistance of this Court to prevent our being doubly vexed by two suits, and to determine which of the two claimants is entitled to the money due on the policy. We admit the claim respecting it, there is the money, which we are ready to pay into Court." The plaintiffs say "our instrument is perfect and complete, we do not ask for any relief against the executors, why should we not have the money? The insurance office is right in paying it to us; it is for the executors to make out their claim." The question is, whether the executors can make out any claim. If the assignment had been made for value, it is clear that the |