ROLLS.]

PETTINGER v. AMBLER, BUNN v. PETTINGER.

life; and after the decease of the survivor, I upon such trusts, intents, and purposes, and in such manner in all respects as John Bunn by his last will, or any codicil thereto, should appoint; and in default of such appointment, and subject thereto, in trust for Elizabeth Jane Ambler, her heirs and assigns for ever. I called her the deft. here, but in the other case I called her the plt., having read from a different bill, but I mean the lady who is the plt. in the one suit and the deft. in the other suit, and who is mentioned in this settlement by the name of Elizabeth Jane Ambler. So that this was a settlement upon Mrs. Bunn for life, and afterwards to such uses as the testator should appoint, and in default of appointment upon Mrs. Bunn absolutely. He gave certain other property which he had, and all other personal estate of what nature or kind soever, to his trustees, to hold the same upon trust for him for life, and after his decease for Elizabeth Jane Ambler for her life, and after the decease of the survivor, upon such trusts as she should by deed or will appoint-in fact, for her absolutely. Then there are certain other powers of investment and the like, and powers of sale and exchange. And it is to be observed that the settlement in fact disposes of the whole of the property which he then had, which had been comprised in his former will, with the exception of the copyholds. After that, and in the following month of November, he made a will which was in these words: "This is the last will of me, John Bunn, of Hillhouse, Westcott, in the county of Surrey, Esquire. I do hereby, by this my will, in pursuance of a power given and reserved to me by a deed of settlement, which deed bears date the 16th Aug. 1862, and is made between me the said John Bunn of the one part, and Caroline Wightman and Anne Pettinger of the other part, give, devise, and bequeath to my dear sister the said Anne Pettinger, during her life, an annuity or annual payment of 1004., to be raised out of my freehold property; and I do hereby give, devise, and bequeath all my copyhold property wheresoever to Caroline Wightman, of No. 1, Moorepark-villa, London-road, Fulham, her heirs and assigns; and I appoint the said Anne Pettinger and Caroline Wightman executrices hereof." Now it is to be observed here that the testator died in the month of July following. Both wills and both codicils have been admitted to probate, and the question is, whether the former of those wills, which bears date the 3rd Aug. 1858, is an execution of the power contained in the settlement? There are two statutes, or rather two clauses in the statute of the 1 Vict. c. 26, which in one sense may refer to this: one is the 29th, which says a will shall be construed to operate from the moment immediately preceding the death of the testator; and the other is the 27th, which enacts that a general gift shall include all estates which a testator has power to appoint, "unless a contrary intention shall appear by the words of the will itself." Now the effect of the settlement, it is to be also observed, is to revoke the whole of the dispositions in the first will, except as to the copyholds; and the last will makes a difrerent disposition of the freeholds. The fact of its disposing of the whole does not prevent the operation of the wills, because they are both admitted to probate; and the question in these suits is one of construction. The settlement reserved to the testator a power to dispose of the freeholds after the death of Mrs. Bunn. I think I must look at the settlement and the testamentary instruments together to understand the cases properly. I find two wills, one in Aug. 1858 and another in Nov. 1862; and I find the settlement, which says the freeholds shall go in a particular manner, "unless otherwise appointed in and by my last will." If both those wills had proposed to deal with the property and had appointed it by several and inconsistent devises, the latest in date would

[ROLLS.

have governed the disposition of the property. After considering the matter in every aspect, I think the fact of the testator making a second will after the date of the settlement, and calling that his last will, is evidence that he did not intend his first will to operate, as an execution of the power contained in the settlement. If a man leaves several wills, all of which are intended to operate more or less on his property, though each one is called his last will (as no doubt it was when it was executed), still each former will ceases to be the last will when another is executed; and that is so, although the former wills are still operative, and although they are all proved, and speak from the death of the testator. The testator may obviously distinguish between the first, second, and last will, as he might between the first, second, and last codicil; and yet all may speak from the death of the testator. The only question that has, in my opinion, here arisen is, whether this testator has intended to make such a distinction? Suppose this case: that a testator settles property upon A. for life with remainder to B., and afterwards, after reciting that he had made three wills with respect to various portions of the property, the settlement directs that the property the subject of the settlement should, after the death of B., go according to the directions contained in the first will, or according to the directions contained in the second will, or according to the directions contained in the last will. No one, I think, could doubt that that would operate as a settlement, according to the directions contained in the one of the three wills which he so designated in order of date. Suppose the settlement, after reciting that he had made a will, directed that the property settled should go according to the direction contained in the last will. I think the same effect would be produced, and I think so too, if he directed how the property should go; or if he did not otherwise direct in that one of his wills which should be the last of the wills he should leave. Those are, in my opinion, only different modes of doing the same thing; that is, distinguishing between the wills he leaves; and the real question, I think, is, what is done here? One of these suits is a suit for the purpose of carrying into execution the trusts of the settlement of Aug. 1862. By that settlement he directed that, after the death of Mrs. Bunn, the property should go as he should appoint by his last will, and in default of such appointment he gave it to her absolutely. Three months after he makes a will which he calls his last will. It is, in fact, his last will, though there is another will of his called a last will, but prior in date, and which is still unrevoked. By that which is the last will in fact, so far as the date of execution is concerned, he makes an appointment of the copyholds but no appointment of the freeholds. In that state of circumstances I think the former will cannot be brought in to operate, so far as relates to the execution of the power contained in the settlement of Aug. 1862. It is clear, I think, to any person not versed in technical matters of legal language and in legal fictions, that when a man has made a will not intending to make another, and settled property so as to go in a particular manner, unless altered by his last will or the last of his wills, he means the latest will in date to operate. If he has two wills he does not say, "As appointed by my wills generally," but "by my last will." Supposing the testator here had said "by my first will," would not that have been a designation by him of the will of 1858? He might have made as many wills afterwards as he had thought fit,to vary from time to time the disposition of his property; merely intending that the last will should be the one to govern the exercise of the power. It is true that a testator does not often make more wills than one,

ROLLS.] SMITH v. DRESSER-Re THE COMPANIES ACT 1862. Re THE ANGLO-Greek, &c. Co. [ROLLS.

intending each to have an operation; though he frequently makes many codicils. Would there have been any difficulty here if the testator had said, "the last codicil" instead of "the last will," and had so purported to exercise the power of appointment? If I adopted the other view, then I should be deciding that the words "last will" meant "a will I have made," or "either of the wills I have made." The more so, as the settlement is a conveyance of everything contained in the first will, with the exception of the copyholds. It is also to be observed that there might have been a very good reason operating within the testator's mind for first making the will of 1858; and then for his not, by his will of 1862, revoking that of 1858; for if the testator had acquired any freehold property after the date of the settlement, it would have passed by the first will, and not by the second. I am therefore of opinion that the will of Aug. 1858 did not operate as an execution of the power contained in the settlement of 1862. There was some property at Croydon which the testator had contracted to buy, in or about 1861, I think. As the contract was entered into previously to the execution of the settlement in Aug. 1862, that property is subject to the trusts of that settlement, as freehold estate purchased by the settlor, who was the owner in equity, subject to the payment of the purchase-money; and let the declaration be in both suits.

Jessel, Q. C.-Perhaps your Lordship will allow me to read what we propose as the minutes of your decree: "Declare that the will dated the 3rd Aug. 1858, and the codicils dated respectively the 8th July 1861 and the 9th July 1862, were not a due execution of the power contained in the settlement of Aug. 1862; declare that the plt. Elizabeth Jane Bunn is entitled to all the freehold property comprised in the settlement of Aug. 1862, subject to the annuity of 1007. per annum to the deft. Anne Pettinger, and to all the leasehold property comprised in the settlement absolutely; direct the defts. Caroline Wightman and Anne Pettinger to assign to the plt. Elizabeth Jane Bunn, or as the court shall direct, all the leasehold messuages and other premises comprised in the settlement." Then, inasmuch as the leasehold estates are given to Elizabeth Jane Bunn absolutely, and the freeholds with a power of appointment, we ask "the usual account of the personal estate."

assent of the thereundersigned creditors of the said Gilbert Hodgson, it was witnessed that the said Gilbert Hodgson thereby conveyed all his estate and effects to the said I. Smith and J. Herring absolutely, to be applied and administered for the benefit of the creditors of the said Gilbert Hodgson, in like manner as if the said Gilbert Hodgson had been at the date thereof duly adjudged bankrupt. That deed, although purporting to be made in conformity with the provisions of the B. A. 1861, schedule D., and though duly registered under that Act, was not executed by three-fourths in value of the creditors of Gilbert Hodgson. The trustees, however, acted under the deed, and got in assets to the extent of 7001. for the creditors. On the 13th May 1864, Gilbert Hodgson was declared bankrupt, and the plt. Smith was appointed the assignee under the bankruptcy. In Aug. 1864, a suit of Harle v. Dresser was instituted by a creditor of Gilbert Hodgson, to enforce the trusts of the deed; but on the 29th June 1865 the deed was declared invalid as against the plt. (in this suit) Smith, the assignee in bankruptcy, on the ground that three-fourths in value of the creditors had not signed it. The trustees of the deed had incurred certain costs in getting in Gilbert Hodgson's assets previously to his bankruptcy. The plt. Smith, as the assignee under the bankruptcy, claimed the 7007. in the trustee's hands; but the deft. Dresser (one of the trustees) refused to hand it, or any part of it, over, unless allowed his costs of executing the trusts of the deed; at all events, down to the act of bankruptcy. The plt. Smith, therefore, filed this bill, as assignee in the bankruptcy, against the trustees of the deed, to compel payment over by them of the 700., and with interest at the rate of 5 per cent. from the 29th June 1865 till the time of payment.

Southgate, Q. C. and Bush for the plt.

Cole, Q. C. and Freeling, for the defts., contra, cited

Re Tressider, 1 L. R. App. 21.

Southgate, Q. C. in reply.

Lord ROMILLY.-I am of opinion that the deft. Dresser in this case is clearly mistaken as to his rights. All the trusts of the deed of 25th Jan. 1864 are invalid, and a mere nullity. It was the duty of the trustees of the deed to have taken no steps under it until they were satisfied that three

Lord ROMILLY.-You understand from my judg-fourths in value of the creditors had signed it. ment that, if the testator had not made a will after the settlement, I should have held that the first will was an execution of the power.

Solicitors: Parker, Rooke, and Parker; Walters and Gush; Gregory and Rowcliffe; Chilton, Burton, Yeates, and Hart; Waugh.

Monday, March 5.

SMITII V. DRESSER.

Composition-deed-Invalidity of-Trustees-Costs. Trustees of a composition-deed took upon themselves to act, and did act successfully, in the trusts of it, and got in some of the debtor's assets. He was afterwards adjudicated a bankrupt. The deed was subsequently declared invalid:

Held, that the trustees were not entitled, as against the assignee in the bankruptcy, to retain their costs of acting under the deed, out of the assets in their hands. By a deed, made the 25th Jan. 1864, between Gilbert Hodgson of the one part, and I. Smith and J. Herring of the other part, on behalf and with the

Moreover, the decree in the suit of Harle v. Dresser must have given all parties to it full notice of the invalidity of the deed. I think that the defts. cansucceed, in maintaining his claim against the not succeed, or rather the deft. Dresser cannot assignee in the bankruptcy, who is entitled to the 7001. As Mr. Dresser's opposition has been the main cause of this suit, he must pay the costs of it.

Monday, March 12.

Re THE COMPANIES ACT 1862.
Re THE ANGLO-GREEK STEAM NAVIGATION
COMPANY (LIMITED).

Companies Act 1862-Sect. 79, cl. 5-Company—
Articles of association-Directors-Duties of-Peti-
tion to wind-up company dismissed-Costs.
Everything connected with the scope and objects of a
company ought to be fully and clearly set forth in its
articles of association.

It is the duty of the directors of companies fully to explain, as occasions may arise, everything connected with their trust to their shareholders, and to show that there is no

ROLLS.] Re THE COMPANIES ACT 1862. Re THe Anglo-GREEK STEAM NAVIGATION CO. [ROLLS.

Where persons are improperly attacked in a petition for a winding-up order, they are entitled to their costs as against the petitioners.

transaction with which the directors are mixed up, by or cases. Then there remains the fifth class. In that, out of which they can make any profits unknown to the the court has power to wind-up the company, whenshareholders. Directors of companies are also bound, ever the court is of opinion that it is just and equitas trustees, to do the best they can for their share-able that the company should be wound-up. So holders; and no director, therefore, has a right to far as the evidence adduced in this case goes, I am derive any private or personal emolument out of any inclined to look favourably upon the plans adopted thing connected with his trust. But the misconduct of by the company to carry out their undertaking; the directors of a company, however it may expose assuming that those plans could have been carried them, as a body or individually, to be brought to out with ready money, and openly, and to the knowan account before a court of equity, will not, in every ledge of the shareholders. The concessions purcase, entitle a shareholder in the company to present a chased by the company appear to have been valuable. petition for an order to wind it up; unless such mis- The Greek houses seem to have been favourable conduct has been of so gross a nature as to lead to the to the company, the first voyages comparatively insolvency of the company. prosperous, and the whole institution to have been the assets had not been wasted. Under those circumworking with a reasonable expectation of profit if stances the court would have had nothing to do but to dismiss the petition, had not the petition conWhere, therefore, a petition was presented by two share-tained personal attacks on several leading members holders in a company, alleging various acts of miscon- of the company. To those attacks the several memduct against the chairman and directors of it; and bers have personally appeared, and have so made it Some of those gentlemen, having been examined, proved necessary for the court to consider, under the fifth the specific allegations to be untrue, although it at the class of the cases to which I have referred, whether same time appeared that many things in the manage- it is just and equitable, in the opinion of the court, ment of the company required amendment, it was that the company should be wound-up. It is the Held, that the petition must be dismissed with costs as duty of the directors of companies fully to explain, as against the company, but without costs as against some occasions may arise, everything connected with their of the parties, who had by their conduct disentitled trust to their shareholders; and to show that there themselves to ask for them; and without costs as to is no transaction with which the directors are mixed some of the resps., against whom nothing was alleged up, by or out of which they can make any profits by the petition, and who, therefore, need not have unknown to the shareholders. Everything conappeared (as they did) upon it. nected with the scope and objects of the company ought to be fully and clearly set forth in its articles of association. Now, under one of the articles of association of this company, Mr. Stephanos Xenos was appointed managing director at a salary of 12001. a-year to be increased to 1500l. and 2000l. a-year, as the company's profits increased; concessions he brought to the company, he was to and further, in consideration of certain valuable receive a sum of 25,000l., half in shares and half in cash. That salary may appear large, and the further remuneration excessive; but there is no evidence to show that' either the salary or remuneration is larger than the services of Mr. Xenos would have justified, or the advantages which his concessions brought to the company would have made reasonable. Again, by the 109th clause of the articles, the sum of 3000l. a-year was to be divided among the directors for their trouble; but whether

This was a petition praying an order for the winding-up of the above-named company, presented by two of the shareholders in it.

The facts of the case will sufficiently appear from the note of the judgment of the M. R. infrà.

Selwyn, Q.C., Roxburgh, and Graham Hastings appeared for the petitioners.

Jessel, Q.C., Eddis, and Watkin Williams for the company.

Druce for Admiral Elliot.

Hemming for Carnegie.

Swanston for Mr. Stefanos Xenos.

Roberts for Count Metaxa.

Southgate, Q.C and Cottrell for the Railway Finance or not that sum was excessive or merely adequate is Committee.

not a question before the court, inasmuch as the fact of such an allowance being made is fairly and

Homersham Cox and Crouch for other shareholders. openly set forth in the articles of association, and

Bagshawe for other parties.

Selwyn, Q.C. in reply.

Lord ROMILLY.-This is a petition presented by two shareholders in the above company under the 79th section of the Companies Act 1862, praying an order to wind-up the company. In considering such an application it is necessary to observe that the section in question enumerates five classes of cases, in which the court has power to wind-up a company, viz.: first, whenever the company has passed a special resolution requiring the company to be Wound-up by the court; secondly, whenever the company has not commenced its business within a year from its incorporation, or has suspended its business for the space of a whole year; thirdly, whenever the members are reduced in number to less than seven; and fourthly, whenever the company is unable to pay its debts. It is apparent from the facts disclosed in this case, that there is nothing to justify the court in making an order to wind-up this Anglo-Greek Steam Navigation Company, under any of the above

the public have no right to come to this court to complain of the existence of facts of which they had notice when they applied for and consented to take shares. Had the case stopped there, there would have been nothing in any way to justify the presentation of this petition, or to call for the intervention of the court. But the evidence has disclosed the fact that the chairman was to receive 5000l. in money, and that he has actually received that amount in shares. In addition to that sum, he has also received 7501. in cash from Mr. Xenos, for services alleged to have been rendered by him, in part payment of sums of money expended out of his own pocket, and for valuable practical knowledge brought by him to bear on the affairs of the company. It was also urged, and probably with very good reason, that any such remuneration as Admiral Elliot received as chairman of the company for his services was a poor and inadequate return for the same. That may be so, but still there remains the fact that this remuneration, whether inadequate or not, was undisclosed to the shareholders. The shareholders depended on the directors of the company, and their motives; it

ROLLS.]

EARL HOWE v. EARL OF LICHFIELD.

Wednesday, March 14.

[ROLLS.

EARL HOWE v. EARL OF LICHFIELD. Vendor and purchaser-Certificate as to legacy duty— Specific performance.

being assumed that the reason for the directors | cludes him from claiming his costs from the petiapproving of the company and lending the weight tioners. 3. With respect to the Railway Finance of their names to it was apparent from the pros- Committee, as there is no charge against them, pectus, and the articles of the company, as publicly there is nothing for them to refute; and they are, issued. But if the directors were to get an extra therefore, not justified in appearing upon the pecuniary advantage out of the company unknown petition. They, therefore, will not be allowed any to the shareholders, only part of the motives of costs. 4. With respect to Mr. Fox, as nothing has the directors was in fact disclosed; and the share- been proved against him, he must be entitled to his holders were deceived as to the undisclosed part of costs. 5. As to Mr. Mavrocordato, inasmuch as his such motives. In these cases the court will hold to defence might have been left to the company, and the principles of law as laid down in several well- there was no necessity for his appearance, he will known cases, in which this court has decided that the receive no costs. 6. As to the builders of the comdirectors of public companies are bound, as trustees, pany's ships, there is no charge made against them to do the best they can for their shareholders; and by the petition; there was no necessity for their that no director therefore has a right to derive any appearance, and they must therefore pay their own private or personal emolument out of anything costs. 7. Lastly, with respect to Mr. Stephanos connected with his trust. Then, in respect of the Xenos, there is no doubt that the allegations of the contracts of the present company, it appears that worthlessness of the concessions brought by this there was a contract for the building of steamers gentleman to the company are wholly unfounded, to the extent of 100,000%; that Stephanos Xenos, and have all been disproved. That being the case, as the managing director, was the person intrusted he would have been entitled to his costs as against with the negotiation of the contract; that Aristides the petitioners had it not been that his conduct as Xenos, his brother, was to have a commission on managing director, in regard to the payments to the this contract of 10,000, and that Stephanos Xenos chairman of the company and others, cannot be was to receive some part of that commission. justified. Such being the facts, he will not be Again, with respect to the loans, there is no doubt allowed any costs. The result will be that the petithat when the Railway Finance Committee made an tion will stand dismissed with costs as against the advance of 10,000l. they were treated as having company, Mr. Carnegie, and Mr. Fox; but without advanced 20,000l., and that a commission of 2000l. costs as against the other parties. was paid out of that 10,000l. to the Imperial Agency Company, which reduced the sum actually received by the Anglo-Greek Company to 80007. With respect to the dealings in the shares also, the system adopted is open to censure. But, assuming that all the above complaints could have been fully proved, the whole would have amounted to no more than a certain quantum of misconduct on the part of the directors, which may or may not be made the subject of a suit in this court. But the misconduct of the directors, however it might have exposed them as a body, or individually, to be brought to account before this court, would not entitle the petitioner, in such a case as this, to an order for winding-up the company, unless, indeed, such misconduct has been of so gross a nature as to lead to the insolvency of the company. There is no pretence for urging such a state of things in the present instance, and no grounds whatever are shown on the facts disclosed for a winding-up order. There is no doubt much to be reformed and much that may be amended in the management of the company's affairs; but there is nothing proved against the company to justify its being wound-up. The petition will therefore stand dismissed as against the company, and with costs. There remains, then, the question-deft. and a very important one it is, in these cases-as to the costs of parties either actually forced before the court by the terms of the petition, or who have felt themselves bound to come into court to answer allegations, whether forced to do so or not. It may be received as a general rule that when persons are improperly attacked in a petition of this nature, they are entitled to their costs as against the petitioners. With the parties affected under the present petition, the court feels bound to deal separately, and as follows:-1. With respect to Mr. Carnegie; that gentleman must be held entitled to his costs, the allegations against him having been disproved. 2. With respect to Admiral Elliot, the chairman; he also would have been entitled to his costs, from the fact of the allegation of collusion between him and Xenos having wholly failed, but for the circumstance of his having received 3000l. in shares, and the 7507. in cash, unknown to the shareholders; and, however great his services may have been, the fact of the shareholders having been left in the dark as to their remuneration pre

where a certificate has been obtained from the Inland Revenue-office that all duty in respect of land sold has been properly paid, the purchaser is not entitled to any more exact or formal one, saying whether succession or legacy duty is the proper duty.

Specific performance. Robert Curzon, by his will dated Oct. 3, 1862, devised certain real estates to trustees upon trust, by sale or mortgage thereof, to raise a sum of 20,000l. for portions; and 12,500l. due from the testator on a mortgage of the estates; and, subject thereto, upon trust for his son. The testator died in May 1863. On the 14th Oct. 1863, the trustees sold a portion of the estates to the deft., who, on the 25th March 1864, entered into possession. On the 15th July 1864, the mortgage was paid off; and the legal estate was, with the consent of the trustees, conveyed to the son of the testator. The then made the following requisition upon the title:

As the testator's son is now treated as vendor by virtue of his beneficial interest under his father's will, it must be proved by the usual evidence that the succession duty has been paid.

The vendor's solicitors replied that, as the devise in the will, upon the trust for sale, was absolute, the property was in equity converted from realty to personalty, and therefore that legacy duty, and not succession duty, was payable in respect of it. They also stated that the legacy duty had been paid. The deft. was not satisfied with that answer to his requisition; and the question was thereupon referred to the office of Inland Revenue; when Mr. Trevor replied that "all duty in respect of the land sold had been properly paid."

The deft., however, still refused to complete his contract; and the son of the testator thereupon filed the bill in this suit to compel him to perform it.

The only questions were, whether legacy duty or succession duty was the proper duty; and whether, if the former was the duty to be paid, the reply of Mr. Trevor as to it was sufficient?

THOMAS V. DAW.

City of London Improvement commissioners-57 Geo 3, the parochial and other districts within the jurisdiction of this c. xci.-Land required for widening street. The commissioners appointed under the provisions of 57 Geo. 3, c. xci., for the improvement of the City of London, have no power to take a greater extent of ground than they actually require for the purposes templated in their Act; although where a house projects into the street, and a portion of it is required by the commissioners for the purpose of widening the street, they may take the whole of that house; but where a portion only of a piece of uncovered ground is similarly required, they can take only the portion required. They have no right to make a profit out of such transactions, in order to benefit the ratepayers.