contained 11,814 acres; and it was held, that B.
was not entitled to specific performance of the
agreement with compensation. Earl of Durham
v. Legard, 589
See Auction. Costs. Mine. Specific Per-
formance.
VOLUNTARY ASSIGNMENT AND SETTLEMENT-A
feme sole made a voluntary assignment, by
deed, of her reversionary interest in stock held
under a settlement. The deed was irrevocable.
It was duly executed by herself, and attested,
but was not communicated either to the trustees
of the paramount settlement, or to the trustees
of the deed itself, or to any of the parties who
were to take under it. The lady subsequently
destroyed the deed, and made a different dis-
position of the stock by a codicil to her will.
It was held, by the Master of the Rolls, that
the trust fund not having been legally trans-
ferred, nor the trust communicated to and
recognized by the trustees of the original settle-
ment, the assignment was incomplete and in-
effectual. But, on appeal, it was held, by the
Lords Justices, reversing the decision of the
Master of the Rolls, that, the assignor having
done all that she could for transferring her inter-
est, the assignment was complete and effectual,
notwithstanding the absence of notice. Also,
there being no evidence before the Court dis-
tinctly impeaching the deed, that it be treated
as valid; but the solicitor who prepared it having
made an affidavit and omitted to state whether
he explained to the settlor the irrevocable nature
of the assignment, leave was given to file a bill
(within a fortnight) to set aside the deed. Re
Way's Trusts, 49
J. M, by a voluntary settlement, assigned
his personal estate to trustees upon trust for
himself for life, and after his decease "upon
trust to pay thereout all the debts then owing
by the said J. M, and also all legacies or
sums of money, not exceeding in the whole
the sum of 4007. sterling, which the said J. M,
by his will, or any codicil thereto, or by any
writing signed by him, shall give or direct to
be paid," and subject thereto upon trust for
his son W. R. M. absolutely. It was held, that
voluntary bonds executed by T. M, though with
the express intention of defeating pro tanto
W. R. M.'s interest, were debts within the
meaning of the settlement, and must be paid out
of the settled property. Markwell v. Markwell;
and Markwell v. Bull, 55
If the debt of a creditor by whom a volun-
tary settlement is impeached existed at the date
of the settlement, and the remedy of the creditor
is defeated or delayed by the existence of the
settlement, the fact that the settlor retained suf-
ficient money to pay all the debts owing by him
at the time of making the settlement will not
take the case out of the operation of the statute
13 Eliz. c. 5. But where the voluntary settlement
is impeached by subsequent creditors, it is ne-
cessary for them to shew, either that it was made
with express intent to "delay, hinder or defraud
creditors," or that after the settlement the settlor
had no sufficient means or reasonable expectation
of being able to pay his then existing debts. A
trust "only" for a married woman, her execu-
tors, administrators and assigns, is not a trust
for her separate use. By a marriage settlement,
2,0001, part of a mortgage debt of 4,0007. due
to the wife, was settled upon trust for her for
her separate use, and the residue was left un-
settled. The husband having become bankrupt,
an inquiry was directed whether, having regard
to the marriage settlement and to the present
circumstances of the husband, any and what
additional settlement ought to be made out of
the unsettled portion of the property on the wife
and children of the marriage. Spirett v. Willows,
365
WATER-Public rights. See Nuisance.
WATERWORKS CLAUSES ACT-A waterworks com-
pany were by their special act (with which was
incorporated the Waterworks Clauses Act, 1847,)
authorized to make and maintain the reservoirs,
aqueducts and other works therein described in
the line and situation, and on the levels and
upon the lands delineated on the deposited plans
and described in the books of reference and
defined on the sections, and to enter upon, take,
purchase and use such of the lands, &c. men-
tioned in the plans and books of reference as
they might deem necessary for all or any of
those purposes. The works authorized, so far as
they related to a particular field which was
situate within marked limits of deviation, were
described as "an aqueduct, constructed in tunnel
or otherwise as shewn on the original plans,"
which plans indicated no surface works upon the
field, but merely shewed that it was intended to
construct, at a depth of at least forty feet under
the same an aqueduct in tunnel. After the spe-
cial act was passed, the company served the
owners of the field with a notice to treat for the
purchase of it, with the view of sinking shafts
in order to obtain an additional supply of water,
and also of erecting thereon permanent pumping
engines for raising water from beneath its sur-
face. Upon a bill filed by the owners of the
field against the company for an injunction to
restrain the company from proceeding to summon
a jury to assess the value of the field, and from
using it for any other purpose than the construc-
tion of an aqueduct, it was held, reversing the
decision of one of the Vice Chancellors, that the
company were not authorized to take or use
the field permanently for any other purpose than
that indicated upon the deposited plans. A public
company claiming statutory powers must prove
clearly and distinctly from their act of parlia-
ment the existence of those powers; and if there
any doubt as to their extent, that doubt must
operate for the benefit of the landowner. Simp-
son v. the South Staffordshire Waterworks Co.,
380
WILL-The fiction or indulgence of the law which
treats a child en ventre sa mère as actually born,
applies only for the purpose of enabling such child to take a benefit to which, if actually born, it would have been entitled; in all other cases, the word born" must have its natural interpretation. Blasson v. Blasson, 18
Testator devised real estate upon trust, after the death of the survivor of his sister and three other persons, to sell and pay the proceeds to "such person or persons as should then be the nearest in blood to him as descendants from his great-grandfather, J. S, and whose kindred with him originated with J. S." At the date of the will testator and his sister were the only lineal descendants of J. S, and it was improbable that either of them would leave issue; both testator and his sister died without issue. It was held, the word "descendants" must be taken to mean "collateral descendants," and that the descendants of a brother of J. S. were entitled to the gift. Best v. Stonehewer, 26
Testator by his will gave the whole of his real and personal property to his sister for life, and by a codicil made on the same day, he expressed his desire that his sister should do what she pleased with the remaining property, excepting a tenement called W. M. and 1,4007. stock, of which his sister should only receive the interest and rent for life, and afterwards to her eldest son on his taking the name of Millard; but should he refuse to take that name, or should his sister depart this life without a son, then the said tenement and stock should go over to his cousin T. P. on his taking the name of Millard, and so on to his heirs, each taking the said name, none of them being allowed to inherit the property who should not take or possess the name of Millard. The sister survived, and her eldest son received at baptism, together with other names, that of "Millard." It was held, first, that testator's sister took an estate for life, with remainder in fee to the son who should first come into esse, to vest immediately on his birth; secondly, that the condition as to taking the name of Millard was a condition subsequent; and, thirdly, assuming the condition not to be invalid for remoteness, that the name being given in baptism was sufficient compliance therewith. Bennett v. Bennett, 34
Testator gave several legacies of considerable amount to his children, to be paid out of his real and personal estate; and he gave 107. each to his two executors, in case they accepted and acted in the executorship of his will. He then made various specific bequests; "and as to the rest, residue and remainder of his real and personal estate, not therein before otherwise disposed of," he gave, devised and bequeathed the same to A. B. and C. D, and made them sole executors of his will. By a codicil, testator devised to his executors a particular house, not before mentioned, in trust for sale, and the proceeds to be divided between all his children. It was held, that the facts of the executors having equal legacies given them, and taking the residue in jointtenancy, though sufficient to have prevented
them from taking the residuary personal estate beneficially by virtue of their office, were insufficient to prevent the operation of the clear gift to them as individuals, and that they took the residue under the will beneficially. Re Henshaw, 98
Testator was tenant for life of two estates, with remainder to his wife for life, with remainder to their first and other sons in tail male, with remainder to himself in fee. By his will (made before the Wills Act) he devised one of these estates, "in default of issue of his body, and subject to the life interest of his wife," to trustees in trust for his brother E. for life, with remainder to his first and other sons in tail male. And testator devised his other estate, "in the same terms," to the same trustees, upon trust to raise money to pay his debts, and subject thereto, in trust for his brother R. for life, with remainder to his first and other sons in tail male. Testator died without issue. It was held, the words "in default of issue," in the case of the estate devised to pay debts, clearly referred, not to a general failure of issue, but to a failure at the time of testator's death, that the same construction must prevail as to the other estate, and that both estates were well devised. The will further provided that in case R, or any son of his body, should succeed to a particular family estate, then the trusts before declared for the benefit of R, and such son of his body so succeeding should cease, and the estate should be in trust for the persons who, by virtue of his will, would become next entitled to the same. R. became tenant for life of the family estate, and his son tenant in tail in remainder; and it was held, that R. only had "succeeded" to the family estate, and that his son became entitled to the estate devised by the will. Bagot v. Legge, 156
Testator, who was entitled to various rectories in E. S, devised his manors, advowsons, messuages and hereditaments in E. S. to trustees upon trust to make certain payments out of the rents, issues and profits, and subject thereto to accumulate the "residuary or surplus rents, issues and profits" of the same property for twenty-one years on specified trusts. A claim by the heir-at-law to the proceeds of sale of a next presentation to one of testator's rectories, on the ground that the next presentations were not disposed of under the trust of "rents, issues and profits" was disallowed by the Lords Justices on the construction of the whole will. And semble-per Lord Justice Turner, that the words "rents, issues and profits" were of themselves sufficient to include the proceeds of sale of the next presentation. Cust v. Middleton, 185
Testator, in February 1827, devised real estate upon trust, after the death of the survivor of his sister and three other persons, to sell and pay the proceeds to "such person or persons as should then be the nearest in blood to him as descendants from his great-grandfather J. S, and whose kindred with testator originated from J. S." At the date of the will testator, who was
then sixty-seven, and his sister, who was seventy
years of age, were the only lineal descendants of
J. S. Both died without issue. On the ground,
mainly, that the word "originate," as there
used, imported, in consonance also with its use
in another part of the will, the source from which
the kinship was to be derived, it was held, in
affirmation substantially of the decree made by
the Master of the Rolls (but dissentiente Lord
Justice Knight Bruce), that the nearest in blood
to testator, at the decease of the survivor of the
tenants for life, out of all the persons who could
trace kinship with testator through kinship,
whether lineal or collateral, with J. S, were
beneficially entitled under the will.
Best v.
Stonehewer, 349
Although parol evidence is admissible to
rebut a presumption of law against the words of
a will, yet where the presumption arises from a
rule of construction of words, simply quà words,
no parol evidence can be admitted. Barrs v.
Fewkes, 522
M. by her will (made subsequently to the
Wills Act) gave a legacy of 1,000l. and half her
residuary estate to her daughter P, a married
woman, for her separate use. P. having under
her marriage settlement a general power of
appointment over all property coming to her
during coverture, by her will, in pursuance of
such power and every other power thereunto
enabling her, appointed two specified sums of
money, and "all other monies and securities for
money over which she had any power of dispo-
sition," to her executors upon certain trusts, and
appointed all her "goods, chattels, and separate
personal estate and effects, not therein before dis-
posed of," to other persons. P. pre-deceased M,
leaving her husband, who also pre-deceased M,
and issue who survived M:-Held, that the
legacy of 1,000l. and moiety of M.'s residuary
estate passed by the residuary appointment in
P.'s will. Whether the will of a child legatee
who dies in the parent's lifetime leaving issue is,
with reference to the property bequeathed to
such child by such parent, to be construed as if
the child had survived the parent-quære. Re
Mason's Will, 603
Testator gave all his personalty for the use
of his wife, not doubting but she would exercise
due discretion and economy in expending the
same; the whole of the property to be under the
care of his said wife and his other executor, who
were requested to pay out of the same all his
debts and funeral and testamentary expenses;
and after the decease of his wife he gave the
residue of his personal estate, to be equally
divided between five persons named. It was
held the "residue" meant so much as remained
after payment of debts, &c., and the wife was
only entitled for life to that residue, with re-
mainder over. In re Brooks's Will, 616
An erroneous recital in a will or codicil,
that testator has given something, which he
has not given, will not of itself create a gift by
implication. A testatrix, by her will, gave a
legacy of 1,000l. among such of the children of
M. as should attain twenty-one. By a codicil she
recited that she had by her will given 1,000l. to
F, a child of M, and directed that "the said
legacy" should not be payable till F. attained
twenty-one. It was held that the recital re-
ferred to the legacy given to the children of M,
and that F. did not take a further legacy by the
codicil. Mackenzie v. Bradbury, 627
Testator gave his residuary estate amongst
his nephews and nieces, and after directing the
share of his niece E. G, and also a sum of
1,000l. which he had given her, to be held upon
certain trusts, with an ultimate gift over, from
the benefit of which, as respected the 1,0007., he
excluded a niece M. L, he directed the shares of
other nieces (including a niece M. B.) and also
certain sums of 1,000l. given to them to be held
for their separate use respectively for their lives,
and then for their children living at their respec-
tive deceases: "but in case all the children of his
said other nieces, or of any or either of them
should die either in their respective lifetimes, or
after their deceases, under age and without leav-
ing lawful issue," then upon trust "to pay, assign
and transfer" their shares "equally amongst all
and every his nephews and nieces who should be
living at such time or times, and to the issue of
such of them as might be then dead, in equal
shares and proportions (such issue to be entitled
to its parent's share only) except as to the sums
of 1,000l. given to his other nieces, which he
directed should not survive to his niece M. L,
but be paid in the same manner as he had directed
the 1,000l. given to his niece E. G. in case of her
decease without issue, or their all dying under
age and without issue." The gift over of E. G.'s
1,000l. was not made to take effect on E. G.'s
death without issue, but "in case all the chil-
dren of E. G. should die either in her lifetime
or after her decease under age, and without
leaving lawful issue." M. B. died without ever
having been married. It was held, the gift over
took effect as to her share and 1,000l.; and
semble-that even without the aid of the expla-
natory reference to the gift over of E. G.'s
1,000l., the gift over would have taken effect.
Held, also, first, that the word "issue" meant
children of the nephews and nieces, and not issue
generally; secondly, that the gift to the issue of
the nephews and nieces was an original gift, and
not a gift by substitution; thirdly, that it was
not necessary that the children who took a share
should survive the tenant for life, or, the gift
being original, their parents; and, fourthly, that
the children took as joint tenants. Lanphier v.
Buck, 650
Testator gave a fund to trustees upon trust
to pay the interest to his daughter for life and
then to her children; and if his daughter should
die without issue, then he directed the fund to
be paid unto and among his four sons, share and
share alike. But in case any or either of his sons
should be then dead, he directed that the share
of him or them so being dead should be paid to
his or their child or children, share and share
alike. Testator's daughter survived the sons, and
died without having had children. It was held,
that it was not necessary in order to entitle
children of the deceased sons to take that they
should have survived the tenant for life, but that
the gift to them being substitutional, it was
necessary they should survive their respective
fathers; and, consequently, that the shares of
sons who died leaving children, vested, on their
deaths, in their children who were living at
their respective deaths. Re Turner, 660
See Accumulations. Charge. Devise. Le-
gacy. Mortmain. Perpetuity. Power of
Appointment.
WINDING-UP OF COMPANIES-A creditor brought
an action against a company, which afterwards
resolved voluntarily to wind up. On an applica-
tion by the company, all further proceedings in
the action were stayed upon the creditor being
allowed to prove for his debt, the costs of the
action and of the application. In re the Life
Association of England (Lim.), 64
The S. company agreed, in writing, to pur-
chase the business of the T. company, and part
of the consideration was to consist of a sum of
money payable by instalments at fixed times. In
1861 an order was made for winding up the S.
company. At that time all the instalments of
the consideration-money had become due, but
none had been paid, and the T. company claimed
to be entitled to interest on the unpaid instal-
ments from the respective times when they be-
came due to the date of the winding-up order.
The agreement contained no provision as to the
payment of interest. It was held, that the T.
company was entitled to interest at 51. per cent.;
and that the Court of Chancery had jurisdiction,
under 11 & 12 Vict. c. 45. 8. 83, to make calls
to raise the amount of such interest. In re the
State Fire Insurance Company (the "Times"
Company Claim), 58
A company was formed for the purpose of
purchasing and working a mine in Cornwall,
and was registered under the Companies Act,
1862, in the Registry Office of the Stannaries
Court, but its registered office was in London,
and it never commenced business. It was held,
this was a company 66
engaged in working" a
mine within the meaning of the 81st section of
the Companies Act, 1862, and that the jurisdic-
tion to wind it up was in the Stannaries Court,
and not in the Court of Chancery. The test of
the Stannary jurisdiction under that clause is
not "actual working," but the object for which
the company is framed. Re the East Botallack
Consolidated Mining Co. (Lim.), 81
A limited company, whose business is being
carried on at a loss without any reasonable
prospect of ultimate success, may be wound up,
on the petition of a shareholder, before the whole
of the capital has been called up. Re Factage
Parisien (Lim.), 140
Upon a petition by an unregistered trans-
feree of script certificates in a limited company,
an order was made by the Master of the Rolls,
and, on appeal, affirmed (but dissentiente Lord
Justice Turner), for winding up the company on
the petitioner admitting his liability as a contri-
butory, and undertaking to do all necessary acts
for making himself a legal shareholder. Re
Littlehampton, Havre and Honfleur Steam-ship
Co. (Lim.), Ex parte Ellis, 237
The Court will not, except under special cir-
cumstances, order a limited company to be
wound up, on the petition of a shareholder whose
shares are fully paid up. Re the Patent Artificial
Stone Co. (Lim.), 330
The holder of paid-up shares in a limited
company is not ipso facto disqualified from pre-
senting a petition for the winding up of the
company; but to obtain a winding-up order he
must satisfy the Court that the company has
ceased to carry on its business, and that the
assets of the company are sufficient, after pay-
ment of the debts of the company; to produce a
surplus for division among the shareholders. Re
the Lancashire Brick and Tile Co. (Lim.), 331
A provisional official liquidator is not entitled
to appear at the hearing of a winding-up petition.
Re the General International Agency Co. (Lim.),
337
The S. Fire Insurance Company issued poli-
cies, providing that the capital stock and funds
of the company should be liable to make good
the damage by fire sustained by the insured, and
should alone be liable for all demands under the
policies, and that the shareholders should not in
any event be liable in respect of any claim upon
the company beyond the amount of their interest
in the capital stock of the company at the time
when such claim might arise. The company
was wound up, and it having been held that
the policies did not create such a charge upon the
stock and funds of the company as to give the
policy-holders any claim upon its assets in pre-
ference to the general creditors, calls to the
amount of the whole nominal capital were made,
and the proceeds were distributed amongst the
policy-holders and general creditors pari passu.
A further call was made under the winding-up,
and the official manager proposed to divide the
proceeds amongst the general creditors, to the
exclusion of the policy-holders. The policy-
holders contended that the proceeds of this call
must be marshalled, and so much must be re-
couped to the previous fund as would enable the
policy-holders to receive on the whole an equal
dividend with the general creditors. It was held
the doctrine of marshalling did not apply, and
that the proceeds of the further call must be dis-
tributed amongst the general creditors only. An
additional call was, however, directed to be made
for the purpose of providing for the general costs
of the winding-up, leaving the capital stock and
funds to bear only the cost of their realization.
In re the State Fire Insur. Co., 436
The summary power conferred by section 165.
of the Companies Act, 1862, of ordering directors
to repay money misapplied by them, cannot pro-
perly be exercised by the Court under section
138. in the case of a company which is being
wound up voluntarily, without making an order
for the compulsory winding up of the company.
The Court will not exercise the powers given to
it by section 165. in cases where the question of
the liability of the directors is complicated or
difficult, but will in such cases require a bill to
be filed for the purpose of taking an account
against the directors. Re the Bank of Gibraltar
and Malta (Lim.), 617
See Contributory.
WORDS-"Born and living," 18
Continuing trustee," 481
"Descendants," 26, 349
"In default of issue," 156
"Issue," 650
"Rents, issues and profits," 185
"Succeed," 136
WRIT OF NE EXEAT REGNO-A. & Co. filed a bill,
and obtained ex parte a writ of ne exeat against
S; no interrogatories were filed. S. put in a
voluntary answer to the bill; and it was held,
on motion to discharge the writ, that S. was in
the same position as a defendant who had
answered fully would have been under the old
practice, where interrogatories were annexed to
the bill. A plaintiff applying for a writ of ne exeat
must state his claims as definitely as possible.
Anderson v. Stamp, 230
A writ of ne exeat will not be granted uopn
the mere affidavit of the plaintiff of his belief
that a certain sum will be found due to him from
the defendant upon taking an unsettled account.
Thompson v. Smith, 412
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