M.R. Harvey v. Wilde. 1872 imitation of that of the plaintiff. The plaintiff is entitled to the costs of the suit. Solicitors for the plaintiff: Messrs. R. & W. B. Smith, agents for Messrs. Fry & Otter Bristol. Solicitors for the defendants: Messrs. Ashurst, Morris, & Co. M.R., July 29, 1872. *HARVEY V. WILDE. [Law Reports, 14 Equity Cases, 438.] 1870 H., 118. Practice-Administration — Creditors' Suit - Proof of Debt 438 Judgment against Executors-Proof of Debt against Devisees of Real Estate. In a creditors' suit for administration of the real and personal estate of a testator, a judgment recovered against the executors (who were also trustees of the real estate) held to be primâ facie evidence of a debt as against the persons interested in the real estate; but they were to be at liberty to adduce rebutting evidence. THIS was a creditors' suit for the administration of the real and personal estate of William Wilde, deceased, who by his will, dated the 15th of February, 1865, appointed the defendants, Samuel Secker Hill and William Wilde, executors thereof; and also devised certain specific real estate to them upon trusts for the benefit of his daughter Eliza Reilly for life, and after her death for her brothers and sisters and the two sons of her deceased brother; and he empowered the said trustees to sell all his other real estate and to give receipts for the purchase money, and directed that the proceeds should fall into his personal estate, and after payment of his debts, funeral and testamentary expenses, be divided amongst his children and grandchildren, as therein mentioned. The testator died on the 28th of July, 1866. He had, for several years previously to his death, had dealings with the firm. of Harveys and Hudsons, who carried on business as bankers in Norwich; and that firm claimed a large balance as being due to them from the testator at the time of his death, and in February, 1869, commenced an action at law against the executors for the recovery *thereof. The executors denied their [439 liability, and alleged that a balance was due to them from the bank, and commenced a cross action against the partners in the firm for the recovery of such last mentioned balance. Under an order of Court both actions were referred to arbitration. The parties and witnesses were heard before the arbitrator on the 27th and 30th of May, 1869, and the 17th, 18th, and 19th of February, 1870, the principal witness for the bank being Sir Robert Harvey, the senior partner therein. On the 18th of March, 1870, the arbitrator made his award, which however was 1872 Harvey v. Wilde. M.R. referred back to him on a rule obtained by the executors. On the 18th and 30th of May, 1870, the parties and witnesses again were heard before the arbitrator, who made a further award, whereby, as to the action by the executors, he found that nothing was due to them from the bank, and he directed judgment should be signed in that action for the costs of the defendants' suit; and as to the action by the bank, he found that the bank was entitled to recover from the defendants thereto; as the executors of the testators the sum of £5066 10s. 6d., and directed that judgment should be signed in that action for the said sum and for the costs of the plaintiffs therein. On the 13th of June, 1870, the executors again moved to refer the award back to the arbitrator, but the application was refused, and judgment was signed as directed by the arbitrator on the 14th of June, 1870. On the 9th of July, 1870, the decree was made in this suit in the usual form, directing inquiries as to the real estate, and a sale both of the residuary and of the specifically devised real estate in the event of the personal estate proving insufficient for the payment of the testator's debts and funeral expenses. On the 19th of July, 1870, Sir Robert Harvey died. On the 22d of July following the firm of Harveys & Hudsons was adju dicated bankrupt. The personal estate of the testator proved insufficient for pay ment of his debts, and an application was made for a sale of the real estate. Thereupon the persons beneficially interested therein required that the debt due to Messrs. Harveys & Hudsons should be proved as against them, and the question whether they were entitled to require such proof was now brought before the Court on an adjourned summons. 440 *Mr. Fry, Q.C., and Mr. Cozens Hardy, for the trustee in bankruptcy, pointed out that in this case the executors were also devisees in trust, and urged the hardship of requiring the debt to be established a second time, the question having been decided after full hearing, and the principal witness being now dead. Mr. Chitty, and Mr. Maidlow, for the persons interested in the real estate, contended that the judgment was against the executors only, and could not be enforced at law against the real estate of the testator; that the devisees were clearly entitled to have the debt established as against them: Willson v. Leonard ('); that the circumstance of the executors being devisees in trust made no difference: Morse v. Tucker (2); and that as to the hardship alleged to be occasioned by the death of Sir R. Harvey, the executors were at a like disadvantage before the arbitrator. [They also referred to Morley v. Morleg (3).] (1) 3 Beav., 373. (*) 5 Hare. 79. () 5 D. M. & G., 610. M.R. LORD ROMILLY, M.R.: Gooch's Case. 1872 I do not think that I can hold the devisees bound by the judg ment; but on a claim made in the suit such as this I think I have jurisdiction to decide on which side the burden of proof lies. When a creditor brings in a claim I frequently order an action to be brought in order to decide the matter; and if, after the action has been tried and decided against the executor, it were necessary to have it tried over against the devisees of the real estate, the delay would be endless. I think, therefore, that the judgment ought to be prima facie evidence of the debt. The devisees will be at liberty to disprove it, if they can; but if they do not, I shall hold the debt binding against the real estate. Solicitors: Messrs. Sharpe, Parkers, & Pritchard; Messrs. Field, Roscoe, & Co. M. R. July 30, 1872. *In re CONTRACT CORPORATION. GOOCH'S CASE. [Law Reports, 14 Equity Cases, 454.] [454 Winding-up-Contributory — Transfer to Infant - Liability of past Shareholder Companies Act, 1862, s., 38. G., a shareholder in a limited company, transferred his shares to A., an infant, more than a year before the company was wound up. A. transferred to D., also an infant, who transferred to B. three months before the winding-up. The transfers were all registered. B., who was sui juris at the date of the transfer, afterwards became bankrupt: Held, that G. continued liable as a member till B.'s transfer was registered, and that he must be placed on the list of contributories as a past shareholder. THIS was an application by the official liquidator of the Contract Corporation, Limited, to place the name of Thomas Gooch on list B of the contributories. In January, 1865, forty shares in the Contract Corporation were standing in the name of Gooch. On the 14th of January, 1865, Gooch transferred all his shares into the name of Adams, who was then an infant, and on the 21st of January, 1865, the transfer was registered. On the 16th of August, 1865, Adams transferred twenty of the said shares to Dove, who was also an infant, and on the 23d of August, 1865, the transfer was registered. On the 5th of December, 1865, Dove transferred the twenty shares then in his name to Beal, which transfer was registered on the 11th of December, 1865. On the 20th of March, 1866, a petition was presented for the winding-up of the company, on which the winding-up order was made on the 23d of April, 1866. *In 1868 Gooch was placed on list A of the contribu- [455 1872 Mannox v. Greener. V.-C.M. tories in respect of the twenty shares remaining in the name of Adams. Beal, the transferee of the other twenty shares, who was sui juris at the date of the transfer, afterwards became bankrupt, and the object of the present application was to place Gooch on list B of the contributories in respect of the last mentioned twenty shares. Sir R. Baggallay, Q.C., and Mr. Chitty, for the official liquidator: We contend that Gooch's full liability as a shareholder continued till December, 1865, when the twenty shares in question were transferred to Beal, as the transfer to Adams and the mesne transfer to Dove were both void. This being so, and Beal having become bankrupt, Gooch is liable as a part shareholder, under sect. 38 of the Companies Act, 1862, to be put on list B of the contributories. Mr. J. Brown, Q.C., and Mr. Bagshawe, for Mr. Gooch: The official liquidator is precluded from disputing the title under which Beal took the shares, for he was accepted as a shareholder by the company. It is not, therefore, now open to him to repudiate the previous transfers, as he cannot both approbate and reprobate at the same time. [They referred to Curtis' Case (1) and Lumsden's Case (2).] LORD ROMILLY, M.R.: I am quite clear that Mr. Gooch must be put on list B of the contributories in respect of the twenty shares in question, His liability as a member did not cease till the transfer to Beal was registered; the previous transfers amounted to nothing. Solicitors for the official liquidator: Messrs. Linklater & Co. Solicitor for Mr. Gooch: Mr. H. W. Vallance. (') Law Rep., 6 Eq., 455. 456] (3) Law Rep., 4 Ch., 31. V.-C.M. July 2, 3, 1872. *MANNOX V. GREENER. [Law Reports, 14 Equity Cases, 456.] 1869 M. 270. Legacy to Wife-Debt charged on Specific Devises - Free Occupancy of HouseRight to let-Income of Real Property passes the Fee-Estate Tail. A testator, by will dated in 1857, bequeathed to his wife all sums of money that had come to his hands as part of her patrimony for her sole use and benefit, with the option of leaving it invested at 5 per cent. to be paid her quarterly, or if she wished to draw it out, then the property most suitable for sale to be disposed of to raise the amount due to her, being in fact a charge upon the property; and if she so desired, this, as well as all just debts and obligations due from him, to be discharged as the first act of his executors: 1872 V.-C.M. Mannox v Greener. Held, that the wife's patrimony was to be treated as a debt, and a charge on the specifically devised property as well as the rest of the property. Bequest to wife of furniture and effects, and the free occupancy of a house for life, after which the effects to revert back to the estate : Held, that the free occupancy of the house entitled the wife either to reside in it or to let it during her life. Devise to sons and daughters of an equal share in all the income of real property: Held, that the devise of the income of the estate passed the fee. Direction that any property might be sold except Glencoe, which was to remain in the family as long as there was a lineal son descendant of before named sons, and if no lineal male descendant from the eldest, the next to be entitled, and so on: Held, that this clause created an estate tail in possession in the eldest named son. WILLIAM GREENER, by his will dated the 5th of April, 1857, appointed executors and trustees, and then gave his property in these terms: "To my wife, Harriet Greener, I bequeath all sums of money that have come to my hands as part of her patrimony, and all that in her own right by bequest or otherwise may hereafter come, for her sole use and benefit, with the option of leaving it invested in the property at 5 per cent. per annum, to be paid her quarterly, or if she wishes to draw it out, then the property most suitable for sale to be disposed of to raise the amount due to her, being in fact a charge upon the property; and if she so wishes, this, as well as all just debts and obligations due from me, to be duly discharged as the first act of my executors. In addition to this I leave her all my furniture, plate, linen, pictures, &c., in my *house at Stratford-on- [457 Avon at my decease, and the free occupancy of any house in my possession, for her life, free of any payments or charge whatever, after which the effects to revert back to the estate. To my sons, Joseph Henry, Albert John, and Arthur Ernest Greener, as well as my daughters, Sarah Ann Mannox, Mary Elizabeth Hawks, and Ann Maria Barnet, I leave and devise an equal share or shares in all the income of the real property left after carrying out the above. As I have given instructions as to the sale and paying of incumbrances on the estate, I trust the Almighty will give me life to accomplish it. In that case a more fully detailed will will be necessary. Any property I possess may be sold if required, except Glencoe, in Arden Street, Stratford-on-Avon, a property I wish to remain in the family as long as there is a lineal son descendent of the fore named sons, and if no lineal male descendant from the eldest, the next to be entitled, and so on." The bill was filed for the administration of the testator's estate, and for the direction of the Court as to various questions arising under the will. Mr. Bristowe, Q.C., and Mr. W. P. Beale, for the plaintiffs, |