In re FOWLER'S TRUSTS.

will not, then he cannot take any of the benefits intended for him by the will, and which are thereupon made available for compensating the disappointed legatee or devisee. This is not the case here, for there is no property of the testator. If the testator has improperly exercised the power, so that the property will go as in default of appointment, it will be divisible amongst the seven children, five only of whom take benefits under this will, the other two are not named in it.

It is impossible to say that there is a case of election as to the two who take nothing under the will, and it is equally so as to the others. The case of Bristow v. Warde (1) lays down that the doctrine of election "never can be applied, but where, if an election is made contrary to the will, the interest that would pass by the will can be laid hold of to compensate for what is taken away; therefore, in all cases, there must be some free disposable property given to the person, which can be made a compensation for what the testator takes away. That (using the words of Lord LOUGHBOROUGH) cannot apply to this case, where no part of his property is comprised in the will but that which he had power to distribute." It is the same as if the two-tenths, which was appointed to one who was not an object, went over, as in default of appointment, to persons who had nothing to do with the freehold estate.

On the best consideration, I think this is not a case of election, and I must therefore declare that two-tenths of the fund have not been properly appointed, and that they go as in default of appointment.

1859. July 12.

Rolls Court.

ROMILLY,
M.R.
[367]

SCOTT . STEWARD.

(27 Beav. 367--369.)

In a settlement of personal property, the parties covenanted to settle all future acquired property upon the same trusts, &c., and subject to the same powers, &c., or as near thereto as the nature and tenure of the property would admit of: Ield, that this authorized the insertion of a power to grant mining leases in the settlement of subsequently acquired freeholds in a mining district.

IN 1850, on the marriage of Isabella Postlethwaite, a settlement was executed, whereby two sums of money were settled on Mr. and Mrs. Postlethwaite and their issue, and the deed contained a covenant that all the real and personal estate which Mrs. Postlethwaite should, during the coverture, become seised and possessed of should be settled "upon the same trusts, and for the same intents and purposes, and under and subject to the same powers, provisoes and agreements, as were therein expressed and declared concerning the sums of 600l. and 500l. thereby

(1) 2 R. R. at p. 245 (2 Ves. Jr. 350).

settled, or such of the said trusts, intents and purposes, powers, provisoes and agreements as should then be subsisting and capable of being executed, or as near thereto as the nature and tenure of the property and other circumstances would admit of." A similar settlement was executed on the marriage of Mrs. Scott in 1854.

Mrs. Postlethwaite and Mrs. Scott having, under the will of their aunt, who died in 1855, become seised of the Moor Row Estate, this suit was instituted by them to have that estate settled pursuant to the covenants in the marriage settlements of 1850 and 1854. The question was, whether the settlements ought to contain powers to grant mining leases (1).

The plaintiffs submitted, that it was expedient and desirable that, in the settlements, there should be reserved to the trustees power to grant mining or other leases of the Moor Row Estate, with all powers and privileges, covenants and provisions as were usually contained in leases in the neighbourhood, and full power to let the surface of the land for building.

Mr. Lloyd and Mr. Osborne, for the plaintiffs, cited Hill v. Hill (2), Williams v. Carter (3), Turner v. Sargent (4).

Mr. Selwyn and Mr. Hibbert for the defendants.

THE MASTER OF THE ROLLS:

I think I can do what is asked, and in making a reference to approve of proper settlements, I will declare that such settlements are to contain powers to grant mining and agricultural leases of the real estates.

MACLEAN v. DAWSON (No. 3).

(27 Beav. 369-372; S. C. 5 Jur. N. S. 1091; 7 W. R. 354.) Administration ad litem held sufficient to represent the testator's estates in a suit seeking to establish a specific lien on his shares in a Company, which had been possessed by the defendants (his Scotch executors and residuary legatees), who had received assets more than sufficient to answer all claims on the testator's estate.

THE bill in this case alleged, that in 1839, the plaintiff, Mrs. Maclean, had sold and transferred ten shares in the Carron Company to Joseph Dawson, the manager of the Company at

Carron, in consideration of 5,6251. That the plaintiff had sold them in reliance on the information furnished to her by Joseph Dawson as to the value of the shares: but that in 1858, she had discovered that the shares were, at the time of the sale, worth more than three times the sum for which she had sold them. That Joseph Dawson had conspired with the assistant manager at Carron, and Stainton, the London manager, in concealing the true value of the shares, by rendering false and fraudulent accounts and by appropriating the moneys of the Company to their own use, of which the bill specified very gross and glaring instances (1).

Joseph Dawson, who was domiciled in Scotland, died in 1851, and by his will, in the Scotch form, he appointed the defendants, William Dawson, Henry Dawson and Thomas Dawson his executors, and he gave them the residue of his estate heritable and moveable. They proved the will in Scotland, but there did no *appear to be any legal personal representatives appointed in England.

The bill stated, that Joseph Dawson possessed seventy Carron shares at his death, that the executors had "paid all his funeral and testamentary expenses, and had provided for the execution of the trusts contained in his will, and that after so doing, these seventy shares formed a part of the residue of his estate, which was divisible amongst" the executors as residuary legatees. That the seventy Carron shares had been divided amongst them, and were now standing in their names, and that the remaining residuary estate had also been divided equally between them.

The bill asked, first, a declaration that the purchase of the ten shares by Joseph Dawson was fraudulent and void, that it might be set aside, and that his executors might be ordered to transfer ten shares to the plaintiff. Secondly, that an account might be taken of the dividends and bonuses since the transfer to Joseph Dawson, and if the amount exceeded the purchasemoney and interest thereon at 41. per cent., then that the executors might pay the amount to the plaintiff, who offered, in the contrary event, to pay the difference.

To this bill Henry Dawson filed a demurrer.

Mr. Rolt, Mr. Follett and Mr. Cotton, in support of the demurrer, argued that this suit could not proceed in the absence of a legal personal representative of Joseph Dawson duly appointed in England, and that it was evident that the plaintiff could not obtain the relief sought, without taking the accounts

(1) See Stainton v. Carron Company, 116 R. R. 143, see p. 145 (24 Beav. 346, see p. 348).

against and in the presence of such legal personal representative, and after *providing for payment of the other claims on the estate of the testator.

Mr. R. Palmer, Mr. Selwyn, and Mr. John Pearson, in support of the bill.

* * *

The MASTER OF THE ROLLS, without calling for a reply, [allowed the demurrer with liberty to amend].

The plaintiffs amended their bill, by stating that the executors of Joseph Dawson had refused to prove his will in this country, and that in the present month (May) administration of the goods, &c., of Joseph Dawson, limited for the purpose only for the defendant James Henry Johnson to become and be made a party to this bill, and to attend, supply, substantiate and confirm the proceedings already had, or that shall or may hereafter be commenced in this suit, or in any other Court between the parties to this bill, or any other parties, touching the matters at issue in this cause, and to obey and carry into execution all orders and decrees of this Court relating to this cause, until a final decree shall be had and made thereon and such decree shall be carried into execution, and the execution thereof fully completed, but no further or otherwise, or in any other manner whatsoever, were granted by her Majesty's Court of Probate to the defendant James Henry Johnson.

The bill by amendment also stated, that the executors knew that the purchase of the shares was void before they distributed the estate. That the personal estate, which came to their hands, was far more than sufficient to answer all the claims on his estate, and that they had admitted assets to answer all purposes.

It prayed, in addition, a declaration that the estate of the testator, and the executors personally, were liable to pay the plaintiffs the difference in the amounts stated in the second paragraph of the original prayer.

Johnson, the administrator, and the eleven other shareholders. in the Company, were made defendants.

Henry Dawson again demurred for want of equity, and on the ground that a legal personal representative of Joseph Dawson, duly constituted in this country, was a necessary party to this suit, but that no sufficient legal personal representative of Joseph Dawson, constituted as aforesaid, was a party to this suit.

Mr. Rolt and Mr. Cotton for the defendant, in support of the demurrer, [cited] Groves v. Lane (1), Davis v. Chanter (2), Silver v. Stein (3).

(1) 93 R. R. 899 (16 Jur. 1061). (2) 78 R. R. 178 (2 Ph. 545).

(3) 94 R. R. 661 (1 Drew. 295).

MACLEAN

1.

DAWSON.

July 1.

L 371]

[ *372 ]

Mr. R. Palmer and Mr. J. Pearson, in support of the bill, were not heard.

*

THE MASTER OF THE ROLLS:

I think, upon the allegation in this bill, the demurrer must

be overruled.

When I considered the case before, I treated it as *one of this description: that if it was to be considered as a debt, then there must be a general administration of the whole estate, and in that respect, there must be a perfect and complete administration, but if it was to be treated as a specific lien upon the particular shares, which upon the allegations in this bill, if they are established, I am of opinion it might be, then you must have all the other persons interested in these shares before the Court. It is then to be considered, in respect of the ulterior relief, what necessity there would be of having the full representation to Joseph Dawson's estate. If the plaintiffs have a specific lien upon the shares, I think there are sufficient allegations upon this bill to show that Joseph Dawson had ten shares, from the time when the purchase was made by him, down to the time when he died: that being so, I do not think it material that there was a variation in those shares, and then all the persons who are interested are brought before the Court; and if it is established that a fraudulent representation was made, I think there would be a specific lien upon those shares in favour of the plaintiffs, in which case they would be entitled to the first part of the relief.

Then comes the consideration of what would be the right with respect to the collateral account, to be taken for the purpose of knowing whether the interest upon the purchase-money exceeded, or was less than, the profits upon the shares. For the purpose of taking that account, which is collateral to or flowing out of the matters of the original decree, I am of opinion, that a person appointed by the Court, or a legal personal representative ad litem, would be sufficient to bind the account, and to do nothing more. If it was then sought to obtain an administration of the estate, for the purpose of obtaining payment out of the assets, undoubtedly *it would be necessary to have a full legal personal representative. But there is an allegation in this bill (the 105th) to this effect: that the three defendants, who are the executors in Scotland, have possessed and got into their hands assets of the testator far more than sufficient to answer all the claims upon his estate. I agree with Mr. Rolt, that the allegation of the admission of assets has only a technical meaning; but it is alleged, that they have actually possession of