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1857.

CHILDERS

V.

CHILDERS.

Judgment.

was executed must fail; and, thirdly, it must not have been communicated to the donee. The deed, in this case, having been registered, it cannot be said that it has not been parted with. It is different from the case of a deed retained secretly by the person who executed it, without communicating the fact to any one. The moment it was registered, there was a complete publication; so that the cases in which the transaction was kept secret have no bearing on a case like this.

In Pitt's case, referred to in Birch v. Blagrave (a), the decision appears to have been in conformity with the whole current of the authorities; but Lord Hardwicke says, that if the qualification had not been made use of, and the donor had discovered his mistake and repented of it, a contrary determination might have prevailed. It does not appear whether the deed of gift was retained by the donor in that case or not. Here, the deed was registered, and the donee thereby became duly qualified to be a bailiff of the Level, and might have executed all the functions of that office, if elected. Whether he was elected or not might depend upon accident, he was entitled to the full benefit of the deed from the time of its registration.

The only doubt I had arose from dicta in some of the cases, which seem to intimate that there might be a locus pœnitentiæ for the donor who had executed such a deed, where the object for which he executed it altogether failed; but, on consideration, I am of opinion, that I cannot make such a distinction. I think it very doubtful whether those dicta can stand, looking at the recent decisions on this subject. But, even if they can, they are not applicable to the present case, for I must treat this deed as having its full effect; and I cannot allow the Plaintiff to say, I intended this deed to operate in fraud of the law. therefore, be dismissed.

The bill must,

(a) Amb. 264.

1857.

IN RE FRYER.

MARTINDALE v. PICQUOT.

THE Defendant Picquot was the survivor of three

trustees for sale under the will of Fryer, deceased.

In 1847, the three trustees sold leasehold estate of the testator. They all three joined in giving a receipt; the purchase-money was paid to one of them named Molloy, who died in 1852, and was by him retained. He was a solicitor, and the certificate found that he "acted in the matter of the sale as solicitor for himself and the other trustees."

In 1855, a suit was commenced by summons for the administration of the testator's estate, and the common decree was made.

Upon the cause coming on for further consideration, Mr. Drewry and Mr. S. James, for the Plaintiff, sought to charge the Defendant Picquot with the money so allowed to remain in the hands of Molloy,- on the ground that the purchase-money was paid to the latter, not as trustee, but as solicitor and agent for the three trustees; so that it was money received to the use of the surviving trustees, and therefore of the Defendant.

Mr. Bagshawe, jun., for the Defendant.

Mr. Drewry replied.

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The money having been retained by him and lost: Held, after his

decease, that

it must be

taken to have

been received

by him not in
solicitor, it
his capacity of
being no part
of his duty in
that capacity
to receive it,
but in his
capacity of
trustee; and
that the sur-
vivor of the
three could
not, upon a
common de
cree for an ac-

count, be held
liable for its

The following cases were cited:-Styles v. Guy (a), loss.

VOL. III.

(a) 1 M'N. & G. 422.

Y

K. J.

1857.

In re FRYER.

MARTINDALE

V.

PICQUOT.

Judgment.

Davenport v. Stafford (a), Biggs v. Penn (b), Strong v.
Strong (c), Brice v. Stokes (d).

The VICE-CHANCELLOR SIR W. PAGE WOOD said:-The money must be taken to have been received by Molloy, not in his capacity of solicitor, it being no part of his duty in that capacity to receive it, but in his capacity of trustee. It was, therefore, in effect his sole receipt, his co-trustees having joined in giving it merely for conformity; and that being so, the Defendant Picquot, the survivor of the three trustees, could not upon this decree,—the mere common decree, by which the question of wilful neglect and default was not put in issue,-be held liable for the loss of the

money.

(a) 14 Beav. 319.
(b) 9 Jur. 368.

(c) 18 Beav. 408.
(d) 11 Ves. 319.

March 23rd and 26th. Wills-Satis

faction

Debts.

Although

a direction in

a will to pay

cies is suffi

cient to rebut

the presump

EDMUNDS v. LOW.

A SPECIAL CASE.

Reuben Miles, at the time of making his will and the codicil thereto, and also at the time of his death, was

debts and lega indebted to his daughter, who together with her husband was Plaintiff in the special case, in the sum of 251., being tion that a le- the balance of certain sums amounting to 867. 12s., which the daughter, before her marriage (solemnised in May, tisfaction of a 1854,) had deposited with the testator, but of which the whole, except 25l., had been repaid before the date of the codicil.

gacy was in

tended in sa

debt, a direc

tion to pay debts (without more) is not sufficient for

that purpose.

Nor will that presumption be rebutted by the circumstance that the debt was liable to variation in amount, e. g. where it was in respect of deposits made with the testator, the creditor drawing on him from time to time in respect of such deposits; nor by the circumstance, that by reason of the creditor (a lady) narrying before the date of the legacy, the debt became payable to her husband, unless the legacy be to her separate use, or large enough to be subject to her equity to a settlement.

The testator, by his will in June, 1854, directed his just debts and funeral and testamentary expenses to be paid as soon as might be after his decease; and, after giving certain pecuniary legacies, he devised and bequeathed all his residuary real and personal estate to trustees, upon trust to sell, and to invest the proceeds which should remain after payment of his debts, funeral and testamentary expenses, and the legacies therein before given, as therein mentioned, and to hold the same upon certain trusts, for the benefit of his daughters and their issue.

By a codicil, dated October, 1855, the testator bequeathed to his daughter, the Plaintiff, the sum of 100l. absolutely.

The question for the opinion of the Court was, whether the debt of 251. was satisfied by the legacy of 1001. given by the codicil.

Mr. Bedwell, for the Plaintiffs, contended that the debt was not satisfied by the legacy.

The Court laid hold of slight circumstances to take a case out of the rule, that a debt due from a testator shall be presumed to be satisfied by a legacy of an equal or greater amount bequeathed by his will to the creditor. And here,

First, there was a charge of debts, as to which the same principle applied as in the case of a charge of debts and legacies: Chancey's case (a).

Secondly, the debt was in itself contingent and uncertain, as being a debt due upon an open and running account; and in such a case, since the testator might not know whether he owed money to the legatee or not, it cannot reasonably be presumed that he intended a legacy to be in satisfaction of a debt which he did not know that he

(a) 1 P. Wms. 410.

1857.

EDMUNDS

v.

Low.

Statement.

Argument.

1857.

EDMUNDS

v.

Low.

Argument.

owed, any more than a legacy can be presumed to be in
satisfaction of a debt contracted after the making of the
will: Rawlins v. Powel (a).

Thirdly, the legatee was a feme coverte; the debt therefore, although originally due to her, became in the testator's lifetime and before the date of the legacy a debt payable to her husband. On the other hand, the legacy was intended for the daughter, and the Court would not presume such a legacy to have been intended as a satisfaction of the husband's claim.

Mr. T. H. Hall for the Defendant:

Where there is in the will an express direction to pay debts and legacies, the Court has held that circumstance sufficient to rebut the presumption in favour of satisfaction. But here the direction is merely to pay debts and the legacies given in the preceding part of the will, and this legacy is given by the codicil. As to the legacy in question, there is no such direction; and a mere direction to pay debts has never yet been held sufficient to rebut the presumption.

And as to the second point, even assuming this to have been an open and running account, still it has not been altered si ce the date of the codicil.

Mr. Bedwell replied.

1

The VICE-CHANCELLOR referred to Wathen v. Smith (b) and Hales v. Darrell (c): but reserved judgment.

(a) 1 P. Wms. 299.

(b) 4 Mad. 325. (c) 3 Beav. 324.

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