The bill prayed that it might be declared that upon the death of the Baroness, the plaintiff became entitled to the estate; and that, if necessary, the settlement might be rectified in conformity with the intention stated in the bill. The Attorney General and Mr. T. Stevens, for the plaintiff.-The 3rd section of the 3 & 4 Will. 4. c. 106, which provides that a limitation to the grantor, or to the heirs of the grantor, shall create a new seisin in the grantor, does not apply to the ultimate limitation in this settlement, which is to persona designate as purchasers, viz. the person or persons who would have succeeded to the property upon the death of the Baroness intestate, and without having been married; that is to say, his heir or heirs ex parte materna. The limitation is analogous to the ordinary trust of settled personalty for the statutory next-of-kin of the wife, under which the next-of-kin take, not as ab intestato, but as persona designata Boydell v. Golightly, 14 Sim. 327. De Beauvoir v. De Beauvoir, 3 H.L. Secondly, this limitation gives a life estate only, for there are no words of limitation; and under a deed the estate of the cestui que trust cannot be enlarged to correspond with that of the trustee Holliday v. Overton, 15 Beav. 480; s. c. 21 Law J. Rep. (N.s.) Chanc. 769. There is, therefore, a resulting trust to the ultimate reversion, which has descended to the plaintiff as heir ex parte materna. Thirdly, the settlor intended the estate, in default of appointment, to revert, in the events which have happened, to her grandfather's heirs; and if the settlement does not give effect to that intention, it should be rectified. Mr. Selwyn and Mr. Homersham Cox, for Mrs. James and Mrs. Harkness.-If the settlor had died intestate between the date of the settlement and the marriage, or if she had survived her husband and died intestate, her heirs ex parte paternâ would have taken the property by reason of the new seisin created in her by the limitations in the settlement to her and her heirs; and the limitation in question must have the same effect, although a different expression was used in order to exclude the husband from taking an estate by the curtesy. But if the limitation is to be taken as a limitation to persona designate as purchasers, the persons to take under it are the heirs ex parte paterna, inasmuch as under the settlement itself they would have taken the estate if she had died intestate and without having been married. The plaintiff's case requires the addition of the words, “and as if these presents had not been executed." The descent having been broken by the conveyance of the whole fee simple to the trustees, a trust for the heir must take effect in favour of the heir ex parte paternâ— Davis v. Kirk, 2 Kay & J. 391. The Court will not rectify a deed where the parties intentionally used particular words, merely on the ground that they mistook the legal effect of the words— Pullen v. Ready, 2 Atk. 587. Lord Irnham v. Child, 1 Bro. C.C. 92. Nor will it rectify a deed at the instance of a volunteer. The evidence of the intention of the settlor does not bear out the plaintiff's contention. Mr. Hobhouse and Mr. Busk, for Baron d'Huart. Mr. J. Hinde Palmer and Mr. J. N. Higgins, for the trustees of the settlement. The Attorney General, in reply.-The earlier part of the 3rd section of the statute, which relates to devises, and upon which Davis v. Kirk was decided, is differently worded from the latter part, which relates to deeds. [The MASTER OF THE ROLLS. - It is clear that the persons who take under this limitation take as purchasers.] The first trust in the settlement was a mere interim provision, and was not intended to break the chain of descent in the event of the marriage never taking place; it would be absurd, therefore, to construe the ultimate limitation by reference to it. It is clear that the limitations were intended to be different, in the different events of the Baroness predeceasing or surviving her husband; but the defendants' construction would make them alike in both cases. A deed may be rectified accord ing to the intention of the settlor where its operation, as it stands, is doubtful— Walker v. Armstrong, 8 De Gex, M. & The MASTER OF THE ROLLS (March 7). -By the settlement made on the marriage of Mrs. Eliot, and under the will of her father, Samuel Heywood, the Ballygrubany estate was settled on Mrs. Eliot for life, with remainder to her children as she should by will appoint; in default of appointment, to her children in tail, with remainder to the right heirs of her father. She was the sole heiress-at-law of her father, and therefore took the ultimate reversion in fee. She died intestate as to this property, and the ultimate reversion thereupon devolved upon her only child, the Baroness d'Huart, in fee. She also has died intestate as to this property; and the question is, who was entitled to it at her death? If there were nothing more in the case, the estate would go to her heirs ex parte materna; in other words, to the persons who at her death were the heirs of her grandfather, Samuel Heywood, all his lineal descendants having failed. But the Baroness settled this property on her marriage; and the question I have to determine is, whether that settlement has interrupted the line of descent of the Ballygrubany estate, and created a new seisin in the Baroness, so as to vest the estate in her half-sisters, the daughters of her father by a previous marriage, who were her heirs-atlaw, under the 3 & 4 Will. 4, instead of the plaintiff, who was her heir ex parte maternâ; or, in other words, the heir of her maternal grandfather. If this question should be determined against the plaintiff, then arises the second question, whether the settlement expresses the intention of the parties at the time it was executed, and whether there is sufficient evidence to justify the Court in rectifying it. The first question depends on the combined effect of the settlement and the 3rd section of the Act for the Amendment of the Law of Inheritance. By the settlement the estate was conveyed to the trustees in trust for the Baroness, her heirs and assigns until the solemnization of the marriage, and after the marriage upon trust for her for her life for her separate use, without power of anticipation, and after her death in trust for the children of the marriage and their heirs as tenants in common, but in case there should be no child then after the death of the Baroness and such failure of issue in trust for the Baroness, her heirs and assigns if she survived her husband; but in case she should die in his lifetime, then in default of her appointment by will, in trust for the person or persons who would on her decease have become entitled to the property in case she had died intestate and without having been married. The words of the statute which alone can apply to this question are in the latter part of the 3rd section, and are these: "and when any land shall have been limited by any assurance executed after the 31st of December 1833, to the person or to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser by virtue of such assurance, and shall not be considered to be entitled thereto as his former estate or part thereof." Now, the Ballygrubany estate is, if the Baroness had died before the marriage, limited to her and her heirs, and so also if she had survived her husband, it is limited to her and her heirs if she had no child; and it is clear that in either of those events the Baroness would have taken the estate as purchaser, and consequently. her heirs-at-law, namely, her half-sisters, would have taken. But neither of those events occurred; what has occurred is this: the Baroness died before her husband and has not disposed of the estate, and the question is, who takes under these words, "The person or persons who would on the decease of the said Isabella Frederica Eliot have become entitled to the hereditaments and premises aforesaid in case she died intestate and without having been married"? Now, in the first place, it is clear that this is not a limitation to Isabella Frederica Eliot and her heirs, neither is it a limitation to the heirs of Isabella Frederica Eliot. The persons to take under these words take as purchasers, and not by descent. I think, therefore, that the words of the statute do not apply, because they are confined to cases, where the land is limited to the person or the heirs of the person, who con veyed the land. Isabella Frederica Eliot conveyed the land, but this is not a limitation to her or to her heirs. The statute merely alters the nature of the estate, if the person who conveys takes under the limitation to him or to his heirs; but here it is obvious that the Baroness who conveys takes no estate at all, but the estate is taken by persons who take as purchasers, and not by descent, that is, "the person or persons who would at the decease of Isabella Frederica Eliot have become entitled to the hereditaments in case she had died intestate and without having been married"; and the question is, to whom these words refer. Do they refer to the person or persons who would have taken under this settlement in case the Baroness had died before the marriage had taken place? or do they refer to the persons who would have taken in case this settlement had not been executed? I think that upon the plain meaning of these words they refer to the persons who would have taken in case the settlement in question had never been executed. I am of opinion, therefore, that, according to the true construction of this settlement the plaintiff, who at the death of the Baroness d'Huart was the heir of Samuel Heywood, became entitled to the Ballygrubany estate upon the death of the Baroness, she having died intestate; and that being so, it becomes unnecessary to consider the question, whether a case has been made out for rectifying the settlement. further amend it, of 1858 and 1864 (21 & 22 Vict. c. 77. and 27 & 28 Vict. c. 45)"; and "in the matter of a freehold messuage or tenement and hereditaments situate and being No. 29, St. James's Street, in the parish of Brighthelmstone, in the county of Sussex, now unoccupied, and subject to the trusts of an indenture of settlement, dated the 24th of March 1837, and made between," &c. The Settled Estates Act of 1856 (19 & 20 Vict. c. 120. s. 20.) orders that "notice of any application to the Court under this act shall be inserted in such newspapers as the Court shall direct." Rule 15. of the Consolidated Orders, XLI.-III. regulating proceedings under that statute, is as follows: "All petitions and notices, and also all affidavits and other proceedings under the act, shall be entitled in the matter of the act, and in the matter of the property in question, mentioning the county and parish or place in which it is situate, and describing it by general terms," &c. Notice of the application had been inserted in a newspaper; but in the advertisement the words, "in the parish of," and "now unoccupied," were omitted. Objections were made in the office on account of this difference between the description in the advertisement and that in the title of the petition; and Vice Chancellor Sir John Stuart, being applied to, was of opinion that the matter must stand over, and a new advertisement be inserted. The point was brought, by way of appeal, before the Lords Justices. Mr. Babington, for the petitioner, urged that the description in the advertisement was sufficient. LORD JUSTICE KNIGHT BRUCE was of opinion that the application must be dismissed. He was sorry to feel obliged to come to this conclusion; but he was afraid of a habit of looseness being introduced in these matters. If the divergence in the present case were passed over, there would probably be in time some greater departure. LORD JUSTICE TURNER was disposed to think that the place had been sufficiently mentioned; but he entirely agreed with the Lord Justice as to the danger of admitting looseness of description. WESTBURY, L.C. Nov. 2, 3, 4, 5; Feb. 11. In re THE AGRICULTURIST CATTLE INSURANCE COMPANY. SPACKMAN'S CASE. Company-Winding-up- Contributory -Collusive Forfeiture of Shares. The directors of a company made arrangements with S, a shareholder who was dissatisfied with its management and desirous of obtaining a winding-up order, for enabling him to retire from the company by a forfeiture of his shares for non-payment of calls upon the terms of the shareholder paying a sum of money to the directors. The stipulated sum of money was paid; a resolution of the board of directors was passed declaring the shares forfeited for non-payment of calls, and the forfeiture registered at the office for the registration of joint-stock companies; and from that time the name of S. was omitted from the list of shareholders in the share register book, and in the next balance-sheet the shares were entered as cancelled; but no other notice of the transaction was given to the other shareholders, and no notice of any of the transactions of the company was given to S. after the registration of his forfeiture. Twelve years afterwards the company was ordered to be wound up, and three years later an application was made by the official manager to add the name of S. to the list of contributories :Held, reversing the decision of the Master of the Rolls, that the transaction was collusive between S. and the directors, and was not cured by lapse of time; and the name of S. was ordered to be added to the list of contributories. Brotherhood's case (1) distinguished. A shareholder, who is permitted to retire from a company by an irregular arrangement entered into with the directors, cannot, by way of defence to proceedings impeaching the arrangement, successfully allege acquiescence therein on the part of the other shareholders, without shewing that the arrangement was brought to their knowledge. This was an appeal, by the official manager of the Agriculturist Cattle Insurance (1) 31 Beav. 365; s. c. 31 Law J. Rep. (N.S.) Chanc. 861. NEW SERIES, 34.-CHANC. Company, now in course of winding up, from an order of the Master of the Rolls, rejecting an application to add Mr. Spackman's name to the list of contributories. The company was formed, in 1845, for granting insurances against loss by mortality in all kinds and descriptions of animals, whether biped or quadruped, being property and live stock belonging to farmers or keepers of animals for exhibition, &c. By the 125th clause of the deed of settlement it was provided that upon neglect or refusal of any holder or holders of any shares for the time being in the company to pay any instalment or subscription which might be called for or in respect thereof, under the provisions therein before contained within two calendar months after the day to be fixed for the payment thereof, &c., it should be lawful for the board of directors, by notice in writing under their hands, delivered or sent by post to such shareholder or to his or her executors, administrators or assigns, to declare that the share or shares in respect whereof there should be such neglect or refusal, and all money paid to the company thereon, and all the benefit and advantage whatsoever attending the same should thenceforth be forfeited to the company, in which case such forfeiture should take place accordingly. Nevertheless it should be lawful for such directors, if they should think fit, to enforce the payment of any such instalment and such interest for the same as aforesaid from such shareholder or his or her executors, administrators or assigns, instead of declaring such share or shares forfeited. By the 126th clause it was provided that it should be lawful for the board of directors, if they should think fit so to do, but not otherwise, in case any share or shares should under the provisions therein before in that behalf contained have been forfeited to the company, to discharge such share or shares from forfeiture and to restore the same to the holder thereof, on his or her paying to the company such sum, by way of fine, in respect of such share or shares as the board of directors should think fit. And by the 182nd clause of the same deed power was given to the board of directors for the time being for and on behalf of the company tó 2 T sell at such price or prices and upon such terms as they should think proper all or any of the shares which should from time to time be forfeited to the board under the provisions therein contained, &c. Provided always, that when any one or more shares should have been forfeited for non-payment of any call within the time before limited for the payment thereof, the board of directors should not sell nor direct to be sold any more of such shares than should be sufficient, as near as might be, to pay the amount of the sum payable by the shareholder for the time being in respect of such shares and legal interest thereupon, and the expenses attending such sale; and all shares which should remain unsold should again revert to and become the property of the person or persons to whom the same should have belonged immediately before such forfeiture as aforesaid, in the same manner as if such call had been duly and regularly paid. In 1848, considerable losses having been incurred, and several shareholders being dissatisfied with the management of the company, a special general meeting was called on the 2nd of November, to determine how far it might be desirable to permit those shareholders to retire from the company on terms. At this meeting it was proposed that a call of 37. per share should be made, and that the directors should be empowered, on payment by the retiring shareholders of a portion of the call, to forfeit the shares for non-payment of the residue, but that 108. only of the call should be paid by shareholders remaining in the company. The meeting was then adjourned to the 13th of November, at the New Hall, Chippenham, and in the mean time notice of the proposition was sent to all the shareholders. At the meeting on the 13th of November, a resolution was passed, known as the Chippenham arrangement, under which the directors were empowered to forfeit the shares of retiring shareholders in the manner proposed at the meeting of the 2nd of November, and several shareholders accepted the terms and retired from the company. The machinery by which the retirement was effected was as follows: A call was made of 41. per share, and a circular was issued by order of the directors, explaining that to the extent of 31. out of the 47. it was made in pursuance of the resolution of the 3rd of November, and that shareholders electing to remain in the company would only be required to pay 10s. or 30s. accordingly as they had or had not paid a previous call of 17. per share, about the regularity of which there existed some doubt. The retiring shareholders paid the stipulated portion of the call, and their shares, having been first transferred in order to avoid the effect of the proviso in the 182nd clause in the deed of settlement for revesting such of the forfeited shares as should not be sold to satisfy the call, were, by a resolution of the board of directors on the 27th of February 1849, declared forfeited for non-payment of the call, and a return of all the forfeitures was made to the Registrar of Joint-Stock Companies. Prior to this arrangement the company had commenced actions against Mr. Spackman and other shareholders for the nonpayment of the disputed 17. call. The actions, however, were defended, and the company, seeing no prospect of succeeding, discontinued them, paying the costs of the defendants. Mr. Spackman, who dissented from the Chippenham arrangement, then, in conjunction with another shareholder, presented a petition for winding up the company. This petition was dismissed, with costs, by Vice Chancellor Knight Bruce, and, upon appeal, by Lord Cottenham (2). Thereupon Mr. Spackman and several other shareholders, who dissented from the Chippenham arrangement, became desirous of retiring from the company, and as the company was in a state of pecuniary embarrassment, the directors, who were confident of its ultimate success, and were anxious therefore to avert a more successful application for a winding-up order, consented to enter into a negotiation, which was accordingly carried on between Mr. H. S. Westmacott, solicitor, on behalf of the company, and Mr. E. T. Clarkson, solicitor, for Mr. Spackman and the other dissentients, as to the terms on which the latter should be allowed to retire from the company and get rid of further liability. Ultimately Mr. Clarkson offered 4,000l. on behalf of his clients, and on the 29th of May 1849, Mr. Westmacott (2) 1 Mac. & G. 170; s. c. 1 Hall & Tw. 229 ; 18 Law J. Rep. (N.S.) Chanc. 261. |