Superior Courts: V.C.Kindersley V. C Stuart. V. C. Wood. 231 The Vice-Chancellor said, that the rule of law which presumes the death of a person who had not been heard of for seven or more years was subject to exception, where, as in the present case, it was unlikely the party missing would have had communication with her friends or relatives. It appeared she had quarrelled with her family and become a Roman Catholic, and there must therefore be further inquiries directed. are not included in "testamentary ex- in support; Bacon and Shebbeare for the next penses," to which the whole of the testator's of kin; Goodeve for the executor of the will.** property, consisting of personal, mixed, and real estate was made liable, and that they were payable by the several parties benefited by the estate being administered. Held, also, that the costs of converting real estate fall exclusively on such real estate. THE testator, by his will, gave the residue of his property, which consisted of personal, mixed, and real estate, after payment of his debts, funeral and testamentary expenses, and legacies, as therein directed, and he subjected the whole of his property to the payment of specific debts and legacies. It appeared that a suit had been instituted to administer the estate, and the matter now came on upon the question, whether the costs were testamentary expenses and payable out of the residue. Teed, Baily, Glasse, Tenison Edwards, Greene, and Jones, for the several parties. The Vice-Chancellor said, that the costs of the suit were not included in the testamentary expenses, and were to be borne by the several parties benefited by the estate being administered. The expenses, however, of converting the real estate must fall exclusively on the real estate. Henderson. July 17, 1854. PRESUMPTION OF DEATH. Where a person entitled to a share in a legacy had not been heard of since Feb. 1835, when she was living in France, although inquiries had been made and an advertisement inserted in La Presse, but it appeared that she had quarrelled with her friends and had become a Roman Catholic, and it was unlikely she should again communicate with her friends or relatives: Held, that the rule of law presuming her death was inapplicable under the circumstances, and further inquiries were directed. THE testatrix, by her will, dated in May, 1634, gave a sum of 1,700. stock in trust for the five children of Mr. Joseph Langton, in equal shares, and appointed her sister Sarah Walker, of whom the plaintiff in this suit was the legal personal representative, her residuary legatee. It appeared that one of the children, Letitia, had parted from her family and left England for France about the year 1828, and had, after residing for a short while at Calais, gone to Paris as a governess. She had written in February, 1835, to a relative in this country, stating she had become a Roman Catholic, and was going to take another situation as governess and housekeeper to a Mons. Bonboutier ; but, although inquiries had been made after her, and an advertisement inserted in La Presse,Tshes could not be heard of, and the plaintiff accordingly claimed the share in the fund to which she was entitled. Elaveley and IX D Lewis, for the plaintiff, Waters v. Waters. July 18, 1854. SUIT BY DEVISEE AND SOLE EXECUTOR An issue had been directed in an administration In this administration suit by the devisee and sole acting executor of a testator against the heir-at-law and parties beneficially interested, an issue had been directed to a Court of Law, at the instance of the heir, as to the sanity of the testator. The will was, however, established, and an application for a new trial had been refused, with costs (reported 2 De G. & S. 591). The question now came on upon further directions and costs. Hallett, for the plaintiff, cited Berney v. Eyre, 3 Atk. 387, and contended the heir was not entitled to the costs of the issue. Osborne and B. L. Chapman for other parties. The Vice-Chancellor said, that as the heir-atlaw had not raised the issue of the testator's sanity improperly or dishonestly, he was entitled to the ordinary costs of suit as between party and party, including the costs at law. Vice-Chancellor Wood. De Windt v. De Windt. July 15, 1854. CHARITABLE BEQUEST TO CHAPEL.-PAY- A sum of money was given by a testator to a THE testator, Major Bray, by his will, gave a sum of 5001. to Miss Galigni's Roman Ca tholic Chapel, at St. John's Wood, and the question now arose on further directions, as to whom the amount was to be paid.org fo Willcock and Prendergast for the plaintiff;} 232 Superior Courts: Vice-Chancellor Wood. Rolt, Rudall and Hooper, for other parties; The Vice-Chancellor said, that in accordance with the decision of Attorney-General v. Ruper, 2 P. Wins. 125, the money must be paid to the trustees of the chapel and not to the minister, for the purposes of repairing the same. Martin v. Wellstead. July 17, 1854. CHARITABLE BEQUEST.--VALIDITY OF.MORTMAIN ACT. Thirtle v. Vaughan. July 17, 1854. GENERAL DEVISE OF REAL ESTATE. LAND CONTRACTED TO BE SOLD BY TESTATOR. A testator devised all his real estates to his three children, as tenants in common, with a gift over to other parties, in case any of them died under 21 without issue: Held, that an estate which the testator had contracted during his lifetime to sell to the defendant was not included in the devise but descended to the heir-at-low. Gift of a sum of money to trustees in trust to THIS was a claim on behalf of the executors invest in the public funds or on real secu of a deceased vendor, for the specific performrity, and to pay the dividends or interest ance of a contract for the sale of certain land in such manner as they should think to the defendant, who had accepted the title. fit amongst poor persons of a town, and It appeared that the vendor had, by his will, after the death of the survivor of the devised all his real estate to his three children, trustees, then to the corporation of the as tenants in common, with a gift over, in case town as trustees, to be applied in a like any of them should die under 21 without leavmanner, and with power to the trustees to ing issue, of the respective estates, interests, apply the capital and interest for or to- and shares to which such child or children so wards establishing or promoting any alms- dying would otherwise have been entitled, and houses or other permanent establishment of any accruing share or interest therein, to for the relief or assistance of the poor of certain parties therein named as tenants in the town, and the testator desired that they common. It appeared that there were two should commence building such almshouses as children, both infants, one of whom was heirsoon as they conveniently could after his de-at-law, and this claim was necessary on the cease: Held. That the trust was within the question, whether the trust property passed to operation of the Mortmain Act, and was the devisees under the will, or descended to therefore void. the heir-at-law. Murray for the plaintiffs; Pearson and Babington for other parties. The Vice Chancellor said, that the words of the will referred to the beneficial and not to the trust estates, which, therefore, descended to the heir, and in whom the legal estate vested. Grifiths v. Hatchard. July 18, 1954. CONDITION OF SALE AS TO TITle deeds. -PURCHASER OF LARGEST LOT. THE testator by his will gave a sum of 4001. to trustees, in trust to invest the same in the public funds or real security, and to pay the dividends and interest thereon in such mauner as they might think fit amongst poor persons of Rye deserving of the same, and after the death of the survivor of such trustees he gave the said sum and the securities on which it might be invested to the Mayor, &c., of the town (whom he appointed trustees) to apply the dividends and interest thereon in the like manner. The will also contained a power to the trustees to apply as well the capital as the interest of the legacy for or towards establishing or promoting any almshouses or such permanent establishment for the relief or assistance of the decayed or other poor persons of the town as the trustees might think advisable to establish or promote, and he desired them to commence building such almshouses as soon as they conveniently could after his decease. This bill was filed by the infant re-opinion of the Court, that upon an estate in the siduary legatees claiming the legacy as void under the Mortmain Act. Rolt and Durt for the plaintiff; Pitman for the executors; W. D. Lewis for the Mayor, &c., of Rye; Wickens for the Attorney-Ge neral. The Vice-Chancellor said, that the true construction of the will was that the trustees were to invest the fund until they could find a suitable plot of ground on which to build almshouses, when they were to build the same, and the trust was therefore within the operation of the Statute and was void. One of the conditions of sale on putting up an estate to auction in lots was, that the titledeeds should be given up to the purchaser of the largest lot: Held, that it referred only to the lots consisting of land and not to the ground-rents, and that the plaintiff, as the purchaser of the largest lot in acreage, was entitled to have the deeds. Ir appeared, from this special case for the Isle of Wight being put up for sale by auction, in lots, the 8th condition provided, that the purchaser of the largest lot should have the custody of the title-deeds, entering into the usual covenant for their production to the other purchasers. Moxon for the plaintiff; Pearson for the defendant. The Vice-Chancellor said, that the condition did not apply to the ground-rents, of which some of the lots consisted, and that the plaintiff, who was the purchaser of the lot largest in acreage, was entitled to the deeds. The Legal Observer, AND SOLICITORS' JOURNAL. SATURDAY, JULY 29, 1854. LOCAL COURTS OF EQUITY. COUNTY PALATINE OF LANCASTER. contemplated by the Government, at the time a former Vice-Chancellor of the County Palatine was appointed, to abolish the Equity Court altogether, and the learned In ancient times local Courts, both of gentleman, we understand, accepted the Law and Equity, were not only desirable, office on the understanding that if it were but absolutely necessary. When a fortnight abolished he would have no claim to comat least was occupied in travelling from the pensation. We are not aware whether the northern counties to the metropolis, and present able Judge was appointed on a when the danger was so great that men similar understanding; but we believe there made their wills before starting on their is no doubt that the abolition of the Equity journey, it was essential that County Courts Court was not long ago ander the considerashould be established, and we need not tion of the authorities. marvel that the important counties palatine of Lancaster and Durham, as well as Ches ter, and the principality of Wales, should possess extensive jurisdictions, and that all the litigation of those early times, of whatever nature or amount, came within the province of the local tribunals. It is remarkable that, amongst the first of our modern law reforms, the Great Sessions of Wales and the extensive local jurisdictions of the principality were abolished, the business was transferred to the Superior Courts, and the practitioners were admitted on a separate Roll at Westminster Hall. The special jurisdiction of the Courts of the county of Chester followed the same fate. And although the Courts of the County Palatine of Durham remain in statu quo, their occupation has diminished to a comparatively small amount. It does not tell favourably for the Court, that notwithstanding the numerous alterations effected by that eminent Judge Sir William Page Wood, when he was ViceChancellor, under the Act of 13 & 14 Vict. c. 43 (1850), the Legislature is again called upon to make further amendments in order to increase the business of the Court. The clauses of the Bill by which it is proposed to substitute the Lords Justices in Chancery for the Common Law Judges of Assize in cases of appeal, are manifestly an improvement, and the powers also given to the Court of Appeal to order the transfer of causes from the Local to the Superior Court are also beneficial; but the question still remains to be decided, whether in the improved state of the Court of Chancery, it will not be preferable to transfer the whole to the metropolitan Court. It is not surprising that the county of We understand that the attention of the Lancaster should form an exception to the Council of the Incorporated Law Society decay of these ancient tribunals. Liverpool has recently been called to the probable and Manchester alone are sufficient to form operation of the Bill if passed into a law; a populous county of themselves; but it and they have promptly taken the subject does not appear from the history of the into their consideration and prepared a Court that, even in that important district, statement from which we extract the fol administration suits and other equity busi- lowing objections to the measure, and ness can be successfully conducted. If we which seem to demand the serious atten are not misinformed, it was a few years ago tion of the Law Officers of the Crown VOL. XLVIII. No. 1,377. 234 Local Courts of Equity-County Palatine of Lancaster. before the Bill be allowed further to pro- [and debtors of every class, resident in London ceed : "The Chancery Court of Lancashire was originally intended to be a purely local Court, confined to local property and objects, in matters of litigation between persons resident in the county-the Judge and his officers being resident there, at a time when communications with the High Court of Chancery were difficult, inconvenient, and expensive; and for these purposes the existing law appears to be more than sufficient. "Under the proposed Bill, the business of the Court may be carried on, without the Judge, or the Bar, ever appearing in the Palatine, or even any of its suitors having been there (other than casually, in order to confer nominal jurisdiction), and to enable this local Court for Lancashire to have all its hearings, primary, interlocutory, and appellate in Lincoln's Inn. "The greatest part of the work of a Court of Equity is administrative; more than half of the business of the High Court of Chancery is of that character. But administration can only be of the entire of the property subject to a trust. If a man die possessed of a single share in a public company, or other property of limited amount in the county, and all the rest of his estate elsewhere, it would be extravagant to allow any one to compel all the other creditors and legatees to resort to Lancashire, and employ Lancashire advisers and counsel for all the matters relating to the trust: still more to make all infants interested under the estate (though neither they nor their parents were ever in the county in their lives), wards of the Court there, and all subject to be educated and managed under the control of its Vice-Chancellor. or in places the most distant from Lancashire, will be liable to proceedings against them at the suit of creditors, legatees, and claimants of all kinds; and they must appear in person or by their counsel and solicitors wherever the local Court may sit or its officers discharge their functions. "Whilst the Court is empowered by the Bill to hold its sittings in London, the official busi ness must be conducted in Lancashire. From thence all proceedings will be issued for service on the defendants, whether in the county or elsewhere; and there the suits will be conducted, and accounts taken before the officers of the Court. Thus all parties residing at a distance will be put to great expense, inconvenience, and loss of time. "By the 10th section persons resident anywhere in England may be brought within the jurisdiction of the Lancaster Court; and even when out of the jurisdiction, they can be reached by an order from the Court of Appeal, which order is to be granted on the plaintiff's application exparte, without notice to or hearing the defendant; and he is to be compelled to go to Lancashire to defend himself, except that, at the peril of costs, he may move to discharge the order after it is made. By the 15th section, future Statutes appli cable to the High Court are to extend to the local Court. This is very objectionable, and will lead to confusion, for the subsequent Acts may not be intended to apply to the County Palatine; and where such is the intention, it should be expressly declared: otherwise new and extraordinary powers may be conferred on the local Court, which the Legislature never contemplated. It is "The extensive changes in the practice of the Courts of Equity of late years have "Formerly, when it was attempted to ren- enabled any person, with however uncertain der this Court really efficient, it was found a claim, to commence a suit, and afterwards that though nominally a Lancashire Court, to add all persons who may appear to have it must be allowed to sit in Lincoln's Inn, any interest in the subject matter. and possesses jurisdiction over persons out proposed now to endow the County Palaof the County Palatine. Accordingly, by tine Court with this power, so that, if the the 13 & 14 Vict. c. 43, s. 13, power is most meagre footing for a suit can once be given to the Vice-Chancellor of the County established within its jurisdiction, it may Palatine to hear cases out of the limits of draw to itself the fullest authority over perthe jurisdiction;-by s. 14, to direct process sons and property in every part of the em to be served out of the jurisdiction, where the pire. The only reason in favour of a local party has submitted to the jurisdiction. And Court of Equity was the advantage in certain by s. 15, where a decree or order cannot be cases of having accounts and inquiries taken enforced by reason of the party being out of where the parties and witnesses reside; the jurisdiction, it shall be enforced by making this advantage is now attainable by the powers it an order of the High Court of Chancery. given to the High Court of Chancery of em These powers, already sufficiently compre-ploying local accountants in cases requiring hensive, are now proposed to be farther ex- them." -En tended. but "The present Bill will have the effect of In considering whether it may possibly giving jurisdiction to the local Court concur- be expedient to continue an Equity Court rently with the Court of Chancery in all cases in Lancashire for the sake of the great in which there is, any equitable question relattowns of Manchester and Liverpool, we ing to property in the County Palatine, and on all claims and demands by persons residing in may advert to the Equity jurisdiction pos the County Palatine against any party wherever sessed by the Lord Mayor's Court" in the resident. Thus executors, trustees, agents, city of London. It would very much sur Local Courts of Equity.-New Statutes effecting Alterations in the Law. 235 Not to affect the admissibility of evidence The following are the Title and Sections of the Act :— prise the bankers, merchants, and traders. ATTENDANCE OF WITNESSES. 17 & 18 VICT. C. 34. Courts of Law in England, Ireland, and Scotland may issue process to compel the attendance of witnesses, although not within their jurisdiction; s. 1. e Statement to be made at the foot of writ that it is issued by special order; s. 2. Witnesses making default to be punished by the Courts of the country in which the process was served; s 3. An Act to enable the Courts of Law in England, Ireland, and Scotland to issue Process to compel the Attendance of Witnesses out of their Jurisdiction, and to give effect to the Service of such Process in any Part of the United Kingdom. [10th July, 1854.] Whereas great inconvenience arises in the administration of justice from the want of a power in the Superior Courts of Law to compel the attendance of witnesses resident in one part of the United Kingdom at a trial in another part, and the examination of such witnesses by commission is not in all cases a sufficient remedy for such inconvenience: be it therefore enacted, as follows: time hereafter depending in any of her Ma1. If, in any action or suit now or at any jesty's Superior Courts of Common Law at Westminster or Dublin, or the Court of Session or Exchequer in Scotland, it shall appear to the Court in which such action is pending, or, if such Court is not sitting, to any Judge of any of the said Courts respectively, that it is proper to compel the personal attendance at any trial of any witness who may not be within the jurisdiction of the Court in which such action is pending, it shall be lawful for such Court or Judge, if in his or their discretion it shall so seem fit, to order that a writ called a writ of subpoena ad testificandum or of subpœna duces tecum or warrant of citation shall issue in special form, commanding such witness to attend such trial wherever he shall be within the United Kingdom, and the service of any such writ or process in any part of the United Kingdom shall be as valid and effectual to all intents and purposes as if same had been served within the jurisdiction of the Court from which it issues. 2. Every such writ shall have at foot thereof a statement or notice that the same is issued by the special order of the Court or Judge, as the case may be; and no such writ shall issue without such special order. 3. In case any person so served shall not appear according to the exigency of such writ or process, it shall be lawful for the Court out of which the same issued, upon proof made of the service thereof, and of such default, to the satisfaction of the said Court, to transmit a certificate of such default under the seal of the same Court, or under the hand of one of the Judges or justices of the same, to any of her Majesty's Superior Courts of Common Law at Westminster, in case such service was had in Act not to prevent the issuing of a Com- England, or in case such service was had in mission to examine witnesses; s. 5. Scotland to the Court of Session or Exchequer testy oils to edes odt tot gridersrelat Edinburgh, or in case such service was had In the City of London Court the suitors have now the advantage of the whole Metro politan Bar; yet rarely is any equity business heard of. Persons not to be punished if it shall appear that sufficient money has not been tendered to pay expenses; s. 4. in Ireland to any of her Majesty's Superior Courts of Common Law at Dublin; and the Court to which such certificate is so sent shall and may thereupon proceed against and punish 02 |