not a "declining trustee" within the meaning of the power

Lewin on Trusts, 4th edit. 426.

Mr. Glasse, in reply.-The case of Nicholson v. Wright was disapproved of by Lord Cranworth in the case of Pell v. De Winton (3). His Lordship went so far as to say, that he should not be prepared to follow the decision in that case, although he would give no definite opinion upon it, as the point was not before him. He also cited

Miller v. Priddon, 1 De Gex, M. & G. 335; s. c. 18 Law J. Rep. (N.S.) Chanc. 226, and 21 ib. 421.

KINDERSLEY, V.C.-My opinion is, that these trustees were not duly appointed. The first question arising upon the power is, under what circumstances was any new trustee to be appointed? and the second question is, by whom was the power to be executed? With regard to the first question, there is no doubt this is a case of a trustee declining to act. It has been contended that a trustee declining to act, means only where he had never accepted or acted in the trusts. I confess I see no more reason why such a contention, tending so materially to diminish the utility of the power, should prevail any more than that a trustee dying or becoming incapable to act must have died or become incapable before he acted, to be within the power. The intention was to make the sense of the word "declining" as large as that of "dying," or "becoming incapable to act," notwithstanding the trustee may have acted. In this case it appears to me that the contingency does arise on which new trustees are to be appointed.

With respect to the second question, whether John Travis was the proper person to appoint, my opinion is that he was not. The power is given "to the surviving or continuing trustee or trustees," his executors, administrators, or assigns. The clause is inaccurately worded, but John Travis was not the surviving or continuing trustee, for the other two were not dead, and he was not intending to continue in the trusts of the will, but was retiring from the trusts.

(3) 2 De Gex & J. 17; s. c. 27 Law J. Rep. (N.s.) Chanc. 230.

The word "his" preceding "executors, administrators or assigns," must necessarily mean the executors, administrators and assigns of the last surviving trustee. The question is, whether a retiring trustee can be regarded as a surviving or continuing trustee. The word "continuing" applies not to him, but to any other trustee there may be, and the words which follow bear that out, because the estate is to be vested in the new trustee jointly with the surviving or continuing trustee. It is clear that the retiring trustee is not the person in whom the power is to be vested. In the case that has occurred there was no surviving trustee, and the retiring trustee, J. Travis, is not the continuing trustee, and has no power to make the appointment. There must therefore be a reference to chambers to appoint new trustees in the place of the three.

This was a motion that service of a copy of the bill in a suit relating to partnership property on a partner within the jurisdiction of the Court might be substituted for service on his partners who were out of the jurisdiction.

Mr. Druce, for the plaintiff, in support of the motion. The suit not being within the 2 Will. 4. c. 33. or the 4 & 5 Will. 4. c. 82, the plaintiff cannot serve the defendant out of the jurisdiction.

Cookney v. Anderson, 32 Law J. Rep. (N.S.) Chanc. 427.

The MASTER OF THE ROLLS said that he had no jurisdiction to make the order, and refused the motion.

Mr. Druce (May 11) renewed the motion by appeal before the Lords Justices, and cited

Carrington v. Cantillon, Bunb. 107. Kinder v. Forbes, 2 Beav. 503; s. c. 9 Law J. Rep. (N.S.) Chanc. 288. Morgan, Chanc. Acts, 3rd edit. p. 391. He also referred to

Cookney v. Anderson, ubi suprà.
Foley v. Maillardet, 33 Law J. Rep.
(N.S.) Chanc. 335.

Steele v. Stuart, Ibid. 190.

This suit was instituted by Jane Moore against John Barber, for the administration of the estate of the late Ann Wilson, wife of John Wilson.

On the 4th of June 1848 Ann Wilson obtained a decree of the Court of Arches, for a divorce à mensâ et thoro against her husband John Wilson, and on the 2nd of March 1850 that Court decreed payment by John Wilson to his wife, during their joint lives, of the sum of 350l., by way of permanent alimony. Besides such yearly sum of 3501. Mrs. Wilson was entitled for her separate use for life to the income which arose from various sums of money of considerable amount.

Mrs. Wilson, by her will, dated the 28th of March 1859, after reciting that there had been allotted to her, by a decree of the

Court of Arches made in a suit instituted by herself against her husband, the sum of

3501. by way of permanent alimony during the joint lives of herself and her husband, and after also reciting that she had then belonging to her monies and effects which consisted of or had been purchased with savings out of her permanent alimony, gave legacies to several persons and bequeathed all arrears of alimony and all such monies as consisted of savings out of her permanent alimony, together with all the residue of her personal estate and effects to the plaintiff Jane Moore absolutely, subject to the payment of her debts &c.; and she appointed the defendant John Barber executor of her will.

Mrs. Wilson made a codicil to her will, dated the 11th of September 1861, varying some of the legacies given by her will, and also giving additional legacies, and died on the 13th of April 1863.

The bill prayed for an account of the personal estate of Mrs. Wilson and of her debts and the legacies bequeathed by her will, and for payment of the clear residue of her personal estate to the plaintiff.

At the hearing the usual administration decree was made, dated the 19th of December 1863, the plaintiff undertaking to serve John Wilson, the husband of the testatrix, with notice of the decree.

By an order, dated the 24th of June 1864, made on the application of John Wilson, who had obtained leave to attend the proceedings in the suit, it was ordered that, in addition to the accounts and inquiries directed by the decree, an inquiry should be made as to what part of the personal estate of the testatrix consisted of savings from her alimony and of the accumulations thereof. The chief clerk certified that of the personal estate of the testatrix, 1,650l. 15s. 5d. new 31. per cent. annuities and 170. 12s. cash constituted savings from her alimony.

The cause now came on for further consideration.

The question was, whether Mrs. Wilson had power to dispose by will as against her husband of the savings made by her out of her alimony.

Mr. Bacon and Mr. Freeman, for the plaintiff, were stopped by the Court.

Mr. Malins and Mr. W. R. Fisher, for John Wilson. It would be conceded that, if

the sums in question had been the savings of the wife's separate estate, the husband would not be entitled to them inasmuch as the wife had made a will by which they would have passed to the plaintiff. Alimony, however, was a thing different from and not analogous to separate estate. It was liable to be varied by the Ecclesiastical Court according to the husband's circumstances; whereas separate property always remained the same, whatever alteration might take place in the circumstances of the husband

Vandergucht v. De Blaquière, 8 Sim. 315, 323; s. c. 7 Law J. Rep. (N.S.) Chanc. 270.

It was given by the husband for his wife's maintenance and support, and whatever part of it was not required by her for that purpose reverted to him

Messenger v. Clarke, 5 Exch. Rep. 388; s. c. 19 Law J. Rep. (N.S.) Exch. 306. Barrack v. M'Culloch, 3 Kay & J. 110;

s. c. 26 Law J. Rep. (N.S.) Chanc. 105. Even savings by the wife out of her separate estate belong to her husband at her death, unless she dispose of them by will— Molony v. Kennedy, 10 Sim. 254. It could not be said here as in

Brooke v. Brooke, 25 Beav. 342, 347; s. c. 27 Law J. Rep. (N.s.) Chanc. 639,

that these sums might be required for the wife's support and maintenance; for the very fact of her having saved them shewed that they were not so required.

They also referred to

Stones v. Cooke, 8 Sim. 321 (n.): reversing s. c. 7 Sim. 22; 3 Law J. Rep. (N.S.) Chanc. 225.

Howard v. Digby, 2 Cl. & F. 634; s. c. 8 Bligh, N.S. 224: reversing Digby v. Howard, 4 Sim. 588; s. c. 1 Law J. Rep. (N.s.) Chanc. 3.

Mr. Springall Thompson, for the defendant John Barber.

STUART, V.C.-It is difficult to understand upon what principle this claim of the husband can be sustained. The suit is instituted for the administration of the assets of his wife. By her will, after stating that there had been allotted to her, by a decree of the Court of Arches made in a suit instituted by her against her husband,

the sum of 350l. per annum by way of alimony, she disposed of the money which she had saved out of it. The only parties to the suit are her residuary legatee and the executor of her will. Of all persons to appear in such a suit it is most extraordinary that this husband should do so, because he had by a decree of the Ecclesiastical Court been ordered to pay an annual sum of money to his wife by way of alimony, and had been mulcted in the costs of the suit in which that decree was made. Having obtained an order to come in under the administration decree in the present suit, he claims in his marital right all that his wife had saved from her permanent alimony. There seems a contradiction in terms in his making such a claim. No doubt, as the counsel who have supported his claim have said, he remained a husband, inasmuch as the divorce was one only à mensâ et thoro, and he was entitled in his marital right to become his wife's legal personal representative. But if he were so entitled, why has he not made himself the legal personal representative, in which capacity he could have dealt with his wife's assets? Here, however, is a will unimpeached and unimpeachable, by which the wife has disposed of all her property, including that which she had acquired by the highest of all rights, a decree of a Court of competent jurisdiction. Then, upon what intelligible principle does there remain a right in the husband to these savings out of his wife's alimony, and to deal with them as his own? It is said that this case is like that of Digby v. Howard, where it is stated that if a husband be ordered to pay money to his wife for a particular purpose and that purpose does not arise, the Court will consider that the marital right has remained attached to the property which was directed to be so applied. Now, what was the position in that case of the Duchess of Norfolk. She was a lunatic lady entitled to a large sum from her husband by way of pin-money which had not been paid, and a bill was filed by her legal personal representative, who claimed the money upon, a ground which was perfectly intelligible, so far as it went; and it was this, that, according to the course of decisions in this Court as to the separate property of a wife, the husband, if he has not paid what is due to his wife in respect of her separate property,

is held to be entitled to keep it upon the assumption that she has assented to his retaining it.

No one can doubt that if in such a case the wife demands payment of her husband she can get her money; and, therefore, by not doing so, she is held to consent to give

But

it up. But in the case of the Duchess of Norfolk the presumption of consent could not have arisen, as she was not in a state of mind to consent to anything. That view was entertained by the Vice Chancellor of England, who held that her personal representatives were entitled to the arrears of pin-money from December 1782, when she became a lunatic, down to the period of the Duchess's death in May 1826, and he directed an account of the arrears of pinmoney due to her. But when his decree came to be examined in the House of Lords, in Howard v. Digby, it was held that the personal representative of the Duke of Norfolk would be entitled to set off any payments made by the Duke in respect of the pin-money against a claim for the arrears by the Duchess during her lifetime, and that the personal representative of the Duchess. was not entitled to any arrears of her pinmoney. The House of Lords, therefore, reversed the decree of the Vice Chancellor of England and dismissed the bill. how does that case apply to this, in which by a decree of the Ecclesiastical Court, the husband was ordered to pay an annual sum of money to his wife by way of alimony? It is said she did not require it, and that the purpose for which it was directed to be paid had failed. But how does that appear? By the decree of the Ecclesiastical Court the husband lost the right of cohabitation with his wife, and had to pay a certain amount at stated intervals for alimony in order that she might live in a proper position. That money having been ordered to be paid under a decree of the Ecclesiastical Court, how can the husband now say that she had not applied it to and for her own purposes, because she has made savings out of it? This Court would not, of its own motion, have ordered an inquiry as to what part of the wife's personal estate consisted of savings from her alimony; for the alimony was her own property, and she had maintained herself out of it, and had saved something from it, and after answer

ing the purposes for which it was paid' what she saved was now vested by law in her legal personal representative.

But where is the equity of the husband to this fund? Upon what possible equity can I take from the executor money which by force of an adverse decree of a Court of competent jurisdiction was clearly that of the testatrix, and give it back to a person who, by that decree, had been ordered to pay it. I wish distinctly to put my decision upon this ground, that the law has made this money assets of the wife, and that the husband has no more equity to come into this Court for the purpose of getting back alimony which he has paid to his wife, than his wife's personal representative would have to get paid arrears of alimony. The husband having thought it right to make the claim, which he has here asserted, the proper way to have done it would have been, not to claim in this suit, but to have filed a bill to get back the money, to which he now asserts a right, out of the hands of the person in which it is placed. The declaration will be in these terms: the parties having waived all questions as to the mode in which the husband has been brought before the Court and made his claim, the assets must be administered according to the terms of the prayer of the bill, and the husband must pay the costs of that inquiry which was directed by his request for his benefit, but which has failed so far as he is concerned.

The plaintiff by his bill, which was filed on the 27th of May 1865, described himself as of 466, Oxford Street, and the present application was supported by an affidavit of the defendant's solicitor that he had on the 24th of June called at that place, and ascertained that the plaintiff did not live there, but that letters, &c. were left there for him.

The plaintiff made an affidavit, stating that for the last eight months he had been unable to afford a place of residence of his own, and had been staying at the house of a friend at Fulham, but that letters and documents addressed to him at 466, Oxford Street had always duly reached him, and that he inserted that address in the bill, not for the purpose of enabling him to keep out of the way, but as the place where he could most certainly be heard of, and where papers and documents left for him would most certainly reach him.

The defendant's solicitor, by another affidavit, admitted that he had served a summons upon the plaintiff at 466, Oxford Street, on the 4th of May 1865, and had then been told that the plaintiff did not live there, but that the copy of the summons, if left there, would reach him.

The defendant's solicitor had made no inquiry of the plaintiff or his solicitor as to the plaintiff's address, and, before taking out the present summons, had taken out a summons for further time to answer.

Mr. Gardiner, for the defendant.

Mr. Davey, for the plaintiff.-Mere misdescription of address is not a ground for requiring a plaintiff to give security for costs. There must either be fraudulent intention to mislead, or refusal to give information when asked

Hurst v. Padwick, 17 Law J. Rep.
(N.S.) Chanc. 169.

Simpson v. Burton, 1 Beav. 556; s. c.
8 Law J. Rep. (N.s.) Bankr. 328.
Knight v. Cory, 32 Law J. Rep. (N.s.)
Chanc. 127.

Manby v. Bewicke (No. 1), 8 De Gex,
M. & G. 468; s. c. 24 Law J. Rep.
(N.S.) Chanc. 664.

Oldale v. Whitehead, 28 Law J. Rep. (N.S.) Chanc. 333.

The plaintiff has given the best address in his power, and no information has been asked. The defendant has waived his right (if any) to have security for costs by taking out the summons for time to answer after he knew of the misdescription—

Swanzy v. Swanzy, 4 Kay & J. 237;

s. c. 27 Law J. Rep. (N.S.) Chanc. 419.

The MASTER OF THE ROLLS said, that he thought it was a case for requiring the plaintiff to give security for costs. It was a difficult thing to prove a fraudulent motive; but what the Court required was, that there should be a place where the plaintiff could be found for the purpose of personal service, and in this case even now neither the plaintiff nor his solicitor had specified any such place. The plaintiff only said he was staying with a friend at Fulham, and gave a different address for his letters. With regard to the alleged waiver, the information given to the defendant's solicitor on the 4th of May, before the filing of the bill, could not have that effect, as it was quite possible that the plaintiff might have subsequently gone to live at 466, Oxford Street. The plaintiff must therefore give security for costs, or else amend his bill by inserting a proper address. The costs of this application would be reserved.

In re WISBEACH, ST. IVES AND CAMBRIDGE RAIL.

Co., ex parte THE RECTOR OF HOLYWELL.

In re EAST OF ENGLAND BANKING CO., ex parte

BUGG.

MILLS . BORTHWICK.

RODHOUSE v. MOLD. RUCK V. BARWISE.