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ACCUMULATIONS BEYOND STATUTORY LIMIT.

Where under a will there was an implied trust for accumulation of income beyond the period of twenty-one years after the testator's death, and the accumulations and surplus income being otherwise undisposed of were that the accumulations during the twenty-one caught by the residuary bequest, it was held

years were valid and were to be added as capital to the residue, but the accumulations beyond the twenty-one years, being invalid, went as income to the tenant for life of the residue. Garside, In re, [1919] 1 Ch. 132. Astbury,

in this case followed Hawkins, In re, [1916] 2 Ch. 570, in preference to Pope, In re, [19011 Ch. 64.

"SURVIVORS OR SURVIVOR."

ject, in Powell v. Hellicar, [1919] 1 Ch. 138; 88 L. J. Ch. 68.

GIFT INTER VIVOS.

Chattels in the possession of an intended donee pass by a parol gift without any further act of delivery or change of possession, whether the chattels are delivered to the donee before, concurrently with, or subsequently to the gift; even where they were originally delivered to the donee as bailee or in any other capacity, provided they are in his possession at the time of the gift to the knowledge of the donor. Stoneham, In re, [1919] 1 Ch. 149; 86 L. J. Ch. 77.

In order to carry into effect the manifest intention of the testator the words "survivors or survivor" were construed otherwise than in their strictly literal sense by Younger, J., who carefully considered the authorities on the sub

VOL. 4.

MINING LEASE.

A covenant by the lessees under a mining lease not to let down the surface with a condition for payment of compensation for damage done runs with the land and can be enforced by the assigns of the lessor, but subsequent lessees of the surface without any express assignment of the covenant are not assigns" for this purpose. Where, however, the lessees of the surface had (as was held) the right of support so far as it was not taken away by the mining lease, and the mining lessees were not entitled to let down the surface without paying compensation, it was held that the surface lessees were entitled, as against the mining lessees, to damages for injury caused by their workings. Westhoughton U.D.C. v. Wigan Coal and Iron Co., Lim., [1919] 1 Ch. 159; 88 L. J. Ch. 60.

TENANT FOR LIFE'S POWERS UNDER

RESETTLEMENT.

Where the operative words of a resettlement are sufficient to pass the life estate under a previous settlement, the insertion after the words creating the life estate under the resettlement of the words "in restoration and by way of confirmation" of the life estate under the previous settlement, though intended to keep alive the powers of the tenant for life thereunder, is ineffectual to restore the original life estate, and, moreover, it is unnecessary to restore the old life estate to keep alive the powers (see Alexander v. Mills, L. R. 6 Ch. 124). The tenant for life under such a resettlement can, as to the property thereby settled, exercise as such tenant for life the powers

L

conferred by the Settled Land Acts and the resettlement. If and so far as Cornwallis-West and Munro's Contract, In re, [1903] 2 Ch. 150, decided that the vendor in that case was tenant for life under the will and not under the resettlement, the decision in that case was erroneous. So held by the COURT OF APPEAL in Constable's Settled Estates, In re, [1919] 1 Ch. 178; 88 L. J. Ch. 89. See also pages 63, 66 (Mag.).

DIRECTORS' POWERS AND DUTIES.

A resolution for the issue of debentures to directors will be invalid if not passed by a disinterested quorum of the board of directors-and must be passed in the interest of the company. Greymouth Point-Elizabeth Railway and Coal Co., In re, [1904] 1 Ch. 32, followed. North Eastern Insurance Co., In re, [1919] 1 Ch. 198.

MORTGAGEE'S RIGHT TO SELL FIXTURES.

A mortgagee of leaseholds has no right, as against his mortgagor, to sever the trade fixtures from the mortgaged property and sell them or otherwise deal with them separately, but this restriction continues only so long as the mortgagor retains some interest in the term.

If he loses that interest, as a result of foreclosure or sale by the mortgagee or by the termination of the term by effluxion of time, his interest in the fixtures goes too. Rogerstone Brick and Stone Co., Lim., In re;

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drawn on seven days' notice, as well as money on current account. The true principle is set forth by Turner, L.J., in Manning v. Purcell (24 L. J. Ch., at p. 527), where he says: The substance of the case is, that the testator had two distinct accounts at his bankers', the one a current account, and the other an account which he treated as a reserve fund, but which was not, therefore, the less his moneys. Glendinning, In re; Steel v. Glendinning, 88 L. J. Ch. 87.

L. J. Ch. 49).

A specified legacy of shares in a limited company, contingent upon the legatee entering the employ of the company prior to attaining the age of twenty years and remaining in such employ until the age of thirty-three years, is not forfeited by the legatee voluntarily joining His Majesty's Forces during the war with the consent of the directors and without any intention on his part or on the part of the directors that the employment shall be determined. Cole, In re, 88 L. J. Ch. 82.

"ALL MY MONEYS AT THE Bank."

A bequest of" all my moneys at the bank includes money on deposit account to be with

Next-of-kin.

Ultimate Residuary Legatees.

Regarding it, perhaps, as somewhat less important than other provisions, because of the remote probability of its ever coming into operation, the draftsman of a will is occasionally apt to pay less attention than he ought to the precision of the language which he uses in settling an ultimate trust in favour of the testator's statutory next-of-kin. Perfectly familiar though he may be with all that was laid down in the leading case of Bullock v. Downes (9 H. of L. Cas. 1), yet he omits to pay strict heed to the fundamental one of the several general rules that were enunciated by the House of Lords in that case. The warning is lost upon him which is conveyed in the note at p. 905 of

Key and Elphinstone's Compendium of Precedents in Conveyancing (10th ed.), vol. 2. It is there pointed out that it must be clearly indicated at what period the statutory next-ofkin are to be ascertained." And Bullock v. Downes (ubi sup.), Sturge and Great Western Railway, In re (19 Ch. D. 444), Wilson, In re; Wilson v. Batchelor ([1907] 2 Ch. 572), and Winn, In re; Brook v. Whitton ([1910] 1 Ch. 278), are cited as authorities for the necessity of the performance of that obligation. According to the statement in Hawkins on Wills (2nd ed.), p. 131, “A devise or bequest to next-of-kin,' next-of-kin according to the statute, &c., means the next-of-kin at the death of the those next-of-kin are person spoken of." In addition to Bullock v. Downes (ubi sup.), that proposition is supported by reference to Gundry v. Pinniger (1 De G. M. & G. 502), Bird v. Luckie (8 Hare, 301), and Mortimer v. Slater (7 Ch. D. 322), affirmed on appeal sub nom. Mortimore V. Mortimore (4 App. Cas. 448). And it is important to bear in mind that the rule is not to be departed from by reason of the fact that the persons to whom interests are given prior to the ultimate gift in favour of the testator's statutory nextof-kin are themselves the next-of-kin. Nor is it to be departed from merely by reason of the use of words of futurity.

v.

A Clause that Obviates Doubt.

The clause which is set forth in Key and Elphinstone (ubi sup.), however, does not leave it open to any question whatsoever as to when the time shall arise for ascertaining that class. The period of distribution is excluded altogether, and the date of the death of the testator is specified instead. In other words, the class to take are the statutory next-of-kin of the testator to be ascertained at the death of the testator, and not the class who would have been his next-ofkin, according to the Statute of Distribution (22 & 23 Car. 2. c. 10), had he died at the date when all the prior trusts thereinbefore declared happened to fail or determine.

The clause, as an excellent specimen of neat and concise drafting, admirable in every respect for its explicitness and lucidity, is incomparable. Founded, as seemingly it is,

upon the clause contained in Davidson's Precedents and Forms in Conveyancing (3rd ed.),

vol. 4, p. 48n, it is expanded and amplified in the following manner: "Subject to the trusts aforesaid and to the powers hereby or by law vested in my trustees and to every or any exercise of such powers, my trustees shall hold the trust fund and the income thereof in trust for the person or persons who would at my death have been entitled to my personal estate under the statutes for the distribution of the personal estate of intestates if I had died possessed thereof intestate [or who would at the time of the failure or determination of all the prior trusts hereinbefore declared have been

entitled, &c., if I had died at the time of such failure or determination intestate] such persons, if more than one, to take as tenants in common in the shares in which they would have taken under the same statutes.

Numerous Authorities.

Where, however, the draftsman has been utterly oblivious of the necessity that" it must be clearly indicated at what period the statutory next-of-kin are to be ascertained "-repeating the caution which by the note in Key and Elphinstone (ubi sup.) is sought to be impressed upon the reader-then it must, of course, depend on the exact phrasing which he has thought proper to employ in his draft. And the authorities are the guide as to how that phrasing ought to be construed.

The authorities, indeed, upon the question. as to the period for ascertainment of the statutory next-of-kin have been so numerous that it is impossible, within the limits of the space at our disposal, to refer to more than a very limited selection of them. In favour of the view that the period of distribution is to be taken as the time when the class of next-ofkin has to be ascertained, we may cite the

following cases: Wharton v. Barker (4 K. & J. 483), Sturge and Great Western Railway, In re (ubi sup.), McFee, In re; McFee v. Toner (79 L. J. Ch. 676), Helsby, In re; Neate v. Bozie (84 L. J. Ch. 682), and Mellish, In re; Day v. Withers ([1916] 1 Ch. 562).

Those were cases in which the Court came to the conclusion that, upon the language of the particular will before it, the period for ascertaining the class indicated by the testator was a period subsequent to the date of the death of the ancestor. The Court considered

that the testator had used express words so as

to take the case out of the general rule, and had shown that he desired the artificial class to be ascertained at a period subsequent to the date of his own or the ancestor's death.

On the other hand, in favour of the conclusion that the statutory next-of-kin must be ascertained as at the date of the death of the testator, there are the following authorities: Bullock v. Downes (ubi sup.), Mortimore v. Mortimore (ubi sup.), and Wilson, In re; Wilson v. Batchelor (ubi sup.).

A Further Decision.

Numerous as have been the decisions on the interesting question now under discussion, the Court of Appeal, consisting of Swinfen Eady, M.R., Scrutton, L.J., and Eve, J., have nevertheless been able to throw much additional useful light upon the same. This their Lordships were afforded the opportunity of doing in the recent case of Hutchinson, In re; Carter v. Hutchinson ([1919] W. N. 83; L. J. Notes of Cases, Times L. R.), on appeal from the decision of P. O. Lawrence, J.

Alluding to the multifarious authorities that stand in the books in which the question has arisen, Scrutton, L.J., intimated in the course of his judgment in the present case that, as far back as the year 1858, Lord Hatherley had occasion to look at forty cases which up to that time "the industry of solicitors had raised." His Lordship added that the Court of Appeal in the present case had been referred to at least a dozen cases more "in which the lawyers who draft wills for testators have contrived to use language which has left in more or less obscurity what the testator meant on the subject."

That heavy batch of authorities the learned Judges of the Court of Appeal were called upon to consider in relation to a will in which, after a variety of bequests in favour of the testator's three daughters and their respective children, there was a gift to his statutory next-of-kin, as the ultimate residuary legatees, in the following terms: "I do further direct that on failure of all the trusts herein before declared of the residue of my personal estate, such residue shall be in trust for such person or persons as on the failure of such trusts shall be my next-of-kin and entitled to my personal estate under the statutes for the distribution of the personal estates of intestates, such

persons, if more than one, to take distributively according to the said statutes."

At the date of the will of the testator and at the date of his death he had living his wife and three daughters who were his sole next-ofkin, as his only other issue, a son, had died previously to the date of the will. All the three daughters died without leaving any issue, so that the ultimate disposition of the testator's estate had then to have effect given thereto. And the question to be determined was whether the period for ascertaining the class indicated by the testator was established by Bullock v. Downes (ubi sup.), and other authorities of that description, to be the date of his death or a period subsequent to that date. In other words, had the testator used language strong enough to take the case out of the general rule and shown that he desired the class to be ascertained as at a date subsequent to that of his own death?

No Exception to the General Rule. The mention of failure of the trusts,' twice repeated, was naturally relied upon as an indication to make the case an exception to the general rule, and to enable P. O. Lawrence, J., and afterwards the Court of Appeal, to hold that the testator had expressed himself sufficiently clearly that he desired his next-of-kin to be ascertained as at the death of the last surviving daughter without leaving any issue, and not as at the date of his own death. But P. O. Lawrence, J., came to the conclusion that even by the use of that phrase the testator had not expressed the intention of benefiting any class of next-of-kin other than that which would be ascertainable as at the date of his own death.

In adopting that view and affirming the decision of the learned Judge, the Master of the Rolls observed that there was no warrant in the will for saying that there was a gift, not to the testator's statutory next-of-kin but to the persons who would have been the next-ofkin, and entitled under the Statute of Distribution if he had died at some other date. His Lordship went on to say that, in his opinion, the authorities constrained the Court to arrive at the conclusion that the decision of P. O. Lawrence, J., was right, although even without those authorities he would have come to the same conclusion.

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In other words, the two decisions in the House of Lords of Bullock v. Downes (ubi sup.) and Mortimore v. Mortimore (ubi sup.), and the two in the Court of Appeal of Wilson, In re; Wilson v. Batchelor (ubi sup.), and the present case of Hutchinson, In re; Carter v. Hutchinson (ubi sup.), establish that when reference is made to next-of-kin" it is prima facie intended to describe the statutory nextof-kin of the testator at the time when he died. All the same, it is infinitely preferable to avoid leaving the matter open to the least uncertainty by using a clause-similar to that in Key and Elphinstone (ubi sup.)—which clearly expresses that as the intention of the testator -if such it be.

Colonial Stock Act, 1900.

(63 & 64 Vict., c. 62.)

Pursuant to section 2 of the Colonial Stock Act, 1900, the Lords Commissioners of His Majesty's Treasury hereby give notice that the necessary steps to comply with the conditions laid down by the Treasury under the Act have been taken by the Government of the Colony of Nigeria. Treasury Chambers, 28th January, 1919.

Capital Issues Licence.

in

The Lords Commissioners of the Treasury give notice that, pending the amendment of Defence of the Realm Regulation 30 F, accordance with the statement made by the Chancellor of the Exchequer in the House of Commons on March 24, they have issued a general licence for issues of capital by companies resident and carrying on business in the United Kingdom, for capital purposes within the United Kingdom, provided that in every prospectus offering to the public for subscription or purchase any issue made under such general licence a statement is included that no part of the proceeds of the issue is to be applied for capital purposes outside the United Kingdom to replace money which has been applied."

or

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Lord Tenterden's Act. (9 Geo. 4, c. 14.)

An Enquiry into the Sixth Section Thereof; Noticing the Topics of Innocent Representations, Duty to Advise and Negligence, as Distinguished Therefrom.

The

The Section: Its Origin and Operation. The case of Banbury v. Bank of Montreal (62 S. J. 665; 119 L. T. 446; q. v.) emphasises how important it is to appreciate the limits of the Statute of Frauds Amendment Act, 1828, commonly called, by virtue of its author's name, Lord Tenterden's Act. It belongs to a class of legislation which though general in terms is particular in application, and it is easy to fall into an erroneous construction of it unless its scope and intent is thoroughly understood. sixth section enacts that: "No action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character conduct credit ability trade or dealings of any other person to the intent or purpose that such other person may obtain credit money or goods upon (sic), unless such representation or assurance be made in writing signed by the party to be charged therewith.' The key to its operation is its origin. This, fully perceived, makes its application easy and prevents embarrassment when a set of facts apparently, as Plowden in his Commentaries says, within its letter are not within the intent of enactment at all. Firstly, then, the section under review is an addendum or supplement to an earlier Act, namely, the Statute of Frauds (29 Car. 2. c. 3). There was a weakness in the fourth section of that Act; its language was not sufficiently comprehensible in a certain particular and exposed the section to an important evasion. The substance of the section was to prohibit actions upon any special promise to answer for the debt, default or miscarriage of another person without written evidence of that promise signed either by the promissor or one duly authorised by him. The doughty ingenuity of the lawyers of those days practised in the bold and subtle