M.R. Fussell v. Dowding. 1872 A different rule applies to the letterpress which is said to be copied. Wherever this letterpress bears the trace of original composition it is entitled to protection, but not where it simply describes the contents of a warehouse, the exertions of the proprietor, or the common mode of using familiar articles." Now, examining the defendant's work by this rule, I find the defendant has copied some lines from the plaintiff's synopsis. I think these were original remarks, and that the defendant was not entitled to use them without acknowledgment of the source from whence they came. The other parts complained of cannot, I think, be treated as having any copyright. I think the plaintiff is entitled to an injunction, if he thinks it worth taking, to restrain the republication of the eight lines from the synopsis; but I shall give no costs, on the ground that it is a flagrant copy of the plaintiff's work in the cases I have mentioned. Solicitors for the plaintiff: Messrs. Pritchard & Englefield. Solicitors for the defendant: Messrs. Duignan, Button, & Smiles, agents for Mr. F. Corbett, Worcester. M. R. July 12, 1872. *FUSSELL V. DOWDING. [Law Reports, 14 Equity Cases, 421.] Marriage Settlement 1872 F., 7. [421 - Trust for Wife if she survived her Husband — Effect of Decree for Dissolution of Marriage. By a marriage settlement the wife's property was vested in trustees upon the usual trusts, and if there should be no issue of the marriage (which was the case) it was to be in trust for the wife, her executors, administrators, and assigns, in case she survived her husband. On the wife's petition the marriage was dissolved: Held, that she was absolutely entitled to the property. By a settlement, dated the 30th of April, 1858, made on the marriage of the plaintiff, Maria Mary Fussell, and Pierre Count de Gendre, certain real and personal estate to which the plaintiff was entitled was vested in trustees upon trusts, certain of which (so far as material) were as follows: Upon trust, during the joint lives of the Count de Gendre and the plaintiff, for the plaintiff for her *separate use, and if there should not be [422 any issue of the said marriage, then the trustees should stand possessed of the trust fund in trust for the plaintiff, her executors, administrators, and assigns, in case she survived the Count de Gendre, but if she should die in his lifetime, then in trust, after her decease and such failure of issue as aforesaid, to pay the income to the Count de Gendre for the residue of his life, and subject thereto for such persons as should be of her 3 ENG. REP.] 101 1872 Fussell v. Dowding. MR own kindred, in such manner as the plaintiff should by will appoint, and in default of such appointment, for such persons as would be entitled thereto under the Statutes of Distribution, in case she had died intestate and unmarried. There was no issue of the said marriage. In July, 1870, the plaintiff presented a petition to Her Majesty's Court for Divorce and Matrimonial Causes, praying for a dissolution of the said marriage, upon which a decree nisi for the dissolution of the marriage was obtained, and by a final decree of the said Court made on the 7th of November, 1871, the said marriage was dissolved. The plaintiff filed her bill against her late husband and the trustees of the settlement, praying that she might be declared absolutely entitled to the said property. Sir R. Baggallay, Q.C., Mr. Davey, and Mr. Solomon, for the plaintiff: We contend that, as there was no issue of the marriage, the trust in favor of the plaintiff in case she survived her husband took effect upon the marriage being dissolved, for she is now in the same position as if the husband had died. In Swift v. Wenman (1) a similar question came before the Court. There, under marriage articles, the personal property of the wife, who was then an infant, was agreed to be settled upon the usual trusts, with an ultimate trust for the wife absolutely if she survived. There were no children of the marriage. A decree for dissolution of the marriage was made at the suit of the wife, who filed a bill claiming the trust fund, and she was held by your Lordship to be entitled to it. Wilkinson v. Gibson (3) and Wells v. Malbon (3) were decisions to the same effect. 423] *It is clear that the right of the husband ceased upon the decree for dissolution of the marriage, and no claim can be set up on behalf of the plaintiff's next of kin. Mr. Roxburgh, Q.C., and Mr. W. J. Harvey, for the Count de Gendre, disclaimed any interest under the settlement. Mr. Fry, Q.C., and Mr. F. J. Turner, for the surviving trustee : On behalf of the next of kin of the plaintiff, we submit that the settlement is still binding. By the construction contended for the Court would be treating as dead a man who is still liv. ing. Further, unless there is issue of the marriage a decree in the Divorce Court does not give the Court any power to deal with marriage settlements: Graham v. Graham (); Evans v. Carrington (5). (') Law Rep., 10 Eq., 15. (2) Law Rep., 4 Eq., 162. (*) Law Rep., 1 P. & D., 711. (3) 31 Beav., 48 (*) 1 J. & H., 598. 7 M.R. LORD ROMILLY, M.R. : Monsell v. Armstrong. 1872 I am of opinion that the plaintiff is entitled to the whole property. Solicitors for the plaintiff: Messrs. Ellis v. Crossfield. Solicitors for the defendants: Messrs. Guscotte, Wadham, & Daw; Messrs. Robinson & Preston. M.R., July 10, 12, 1872. MONSELL V. ARMSTRONG. [Law Reports, 14 Equity Cases, 423,] Power of Sale-Administrator durante minore ætate. A power of sale given by a testator to his executors or administrators may be exercised by an administrator durante minore ætate. THIS was a suit by the vendor for the specific performance of a contract for sale. John Edgley, by his will, dated the 8th of January, 1856, bequeathed to his wife, Sarah Edgley, all his personal estate, subject to the payment of debts, except that as respected the mortgage debts charged on his real estate, he directed [424 them to be paid out of his real estate in the county of Berks, as the primary fund for payment thereof; and devised the residue of his real estate, after the decease of his wife, Sarah Edgley, to the use of his daughter, Ann Edgley, her heirs and assigns, subject to the payment of the mortgage debts charged thereon in exoneration of his other property, with the following proviso: "Provided always, that in case the person or persons who shall, for the time being be entitled to the said mortgages, or any part thereof, shall require the same to be paid off, it shall be lawful for my executors or administrators, or executor or administrator, for the time being, to provide for the payment thereof by selling all or any part of the hereditaments comprised in the residuary devise herein before contained, and to bargain, sell, and appoint the real estate so intended to be sold to the purchaser or purchasers thereof, his, her, or their heirs, executors, administrators, or assigns, or as he or they shall direct; and I-declare that the receipts of my said executors or executor, or administrators or administrator, shall be good and sufficient discharges for all moneys therein expressed to be received; and that no purchaser shall be bound to see to the application thereof, or to inquire whether any such mortgage money as aforesaid had been called. in, or whether any such sale ought to be made, nor be affected by any actual notice to the contrary of any of the parties aforesaid." And it was thereby also provided that, in case there 1872 Monsell v. Armstrong. M.R. should be any surplus money arising from such sale, the same should be invested in the name or names of the testator's “said executors or administrators, or executor or administrator." as therein mentioned. And the testator appointed the said Sarah Edgley and Ann Edgley executrixes of his said will. The testator died in 1855, and his will was proved by the said Sarah Edgley and Ann Edgley. Sarah Edgley died on the 28th of February, 1870, having by her will left all her property to the said Ann Edgley (then the wife of Charles Monsell), who died intestate on the 4th of March, 1870, leaving her said husband, Charles Monsell (who afterwards died, having by his will left all his property to his wife, who had predeceased him), and two infant children, Charles Monsell the younger and Annie Monsell, her surviving. The said in425] fants became, on their *father's death, entitled to the unadministered personal estate of the testator, John Edgley. On the 18th of May, 1872, letters of administration with the will annexed of the personal estate of the testator left unadministered by the said Sarah Edgley and Ann Edgley (afterwards Monsell) were granted to the plaintiff, Catherine Georgina Monsell, for the use and benefit of the said infants, Charles Monsell and Annie Monsell and until one of them should attain the age of twenty-one years. In July, 1871, the plaintiff, as the administratrix of the testator, put up for sale a farm and cottage in Berkshire, being part of the said residuary real estate, under certain conditions of sale, by one of which it was stated that the vendor was a legal personal representative, selling under a power of sale, and that the concurrence of the persons beneficially interested should not be required. The object of the sale was to pay off the mortgage on the property, the payment thereof being required by the mortgagee. The defendant was declared the purchaser of the property at the sale, and signed an agreement to complete the purchase according to the conditions. The defendant objected to complete the purchase, mainly on the ground that the plaintiff, being administratrix durante minore ætate only of the testator, was unable to exercise the power of sale contained in his will. Mr. Joshua Williams, Q.C., and Mr. W. Brodrick, for the plaintiff: The power of sale contained in the testator's will, being given to his "executors or administrators," can be properly exercised by the plaintiff, as administratrix durante minore ætate, for the benefit of the infants. It is clearly settled that, though an administrator durante minore ætate has only a special and limited M.R. Monsell v. Armstrong. 1872 property in the estate of a deceased, he can do all acts which are incumbent on an executor, and which are for the advantage of the infant and the estate of the deceased: Comyn's Digest, Administration (); Williams on executors (2). It is, we submit, for the benefit of the infant children of Mrs. Monsell that this property should be sold, and the plaintiff is an administratrix within the meaning of the *power. It is [426 the duty of the plaintiff to pay the testator's debts, and as the mortgage debts are charged on the real estate by the bill, they cannot be paid off except by the exercise of the power of sale. The plaintiff's contention is supported by the case of Austin v. Martin (3), where real estate was devised to A. B., who was also sole executor, in trust to sell and pay the testator's debts, with power for the trustees to give discharges, and A. B. renounced and disclaimed. Your Lordship there held that the heir-at-law, who had taken out administration, could sell the estate and give valid receipts. The objection raised by the defendant cannot be sustained, and the plaintiff is entitled to a decree for specific performance. Sir R. Baggallay, Q.C., and Mr. Charles Hall, for the defendant: The power of an administrator durante minore ætate does not enable him to sell real estate. It is laid down that he may sell bona peritura as a bailiff may do, and he can sell a term of years for the benefit of the infant, or for the payment of debts; but he can go no further Bacon's Abr. Executors and Administrators (). Here we submit that the power was at an end at the death of Sarah Edgley, when the property became vested in an owner in fee simple. Besides, it cannot be shown that the exercise of the power, if it now exists at all, is for the benefit of the infant; and at any rate it is too doubtful a title to force on a purchaser. Mr. Joshua Williams, in reply. July 16. LORD ROMILLY, M. R.: I have looked at this case very carefully, and can find no distinction between a common administrator and an administrator durante minore ætate as regards the exercise of a power of sale. I am of opinion that a good title can be made to the property, and that there must be a decree for specific performance with costs. Solicitors for the the plaintiff: Messrs. Parker, Lee, & Haddock. Solicitor for the defendant: Mr. G. E. Philbrick. (1) F., 231. (2) 6th. Ed., p. 469. (*) 29 Beav., 523. (*) B., 2. |