J. 1897 PRIESTLEY v. ELLIS. to provide for his creditors, and to that intent vesting the KEKEWICH property in another with directions to apply it in payment of his debts, does not thereby constitute an irrevocable trust, at all events during his life. The trustee is only his agent for effecting his wishes and is responsible only to him. The distinction between such a case as Synnot v. Simpson (1) and Garrard v. Lord Lauderdale (2) is precisely stated by Lord Cranworth in a passage of his speech in Montefiore v. Browne. (3) He says: "This case can hardly be distinguished in principle, or indeed in the very facts upon which the principle rests, from that of Synnot v. Simpson (1), in this House. There, as here, a conveyance was made of estates, creating, in terms at least, a trust for creditors who were not in that case parties to the deed, and subject to this trust there was a settlement for the mutual benefit of the father and the son. And what your Lordships then held was this, that at all events after the death of one of the parties to that arrangement that trust became an absolute trust, which the creditor, in whose favour it was made, might insist upon being enforced." The present case differs in some details from the case of Synnot v. Simpson (1) as there described by Lord Cranworth; but the question is whether, notwithstanding these differences of detail, it does not really fall within that case. In Synnot v. Simpson (1) there was a bargain: it was a settlement by father and son, and that is also the case here. It cannot be important to consider whether a given settlement was made by a single settlor, or by two or more settlors, or whether it was the result of a bargain as between themselves for their mutual interest or not. Nothing possibly, it seems to me, can turn on the consideration whether the two settlors, if there were two, were tenants in common with a joint power of appointment, or whether one was a particular tenant and the other a remainderman or not. The two persons together had the estate originally, and the two together were competent, by virtue of that ownership, to dispose of it as they pleased, that is to say, as they might contract by bargain between them. As regards the creditors, it cannot make any (2) 2 Russ. & My. 451. (1) 5 H. L. C. 121. KEKEWICH difference whether there was a bargain or not. Lord Cranworth, J. 1897 in his speech in Synnot v. Simpson (1), I think shews his opinion on page 141. He there, without deciding the point, says that PRIESTLEY he doubts "whether the doctrine acted on in Garrard v. Lord v. ELLIS. Lauderdale (2), and in the other authorities which I have adverted to, applies to a case where the trust is to come into operation only on the death of its author, and where, subject to the trust for payment of debts, the lands charged are conveyed by way of bounty to a third person. I think it at all events open to argument that in such a case the settlor must primâ facie be understood to be dealing with his property as if he was disposing of it by will, and therefore as contemplating bounty throughout; or if it be contract, so far as the party taking the estate is concerned, I think it must still be construed as bounty in favour of the plaintiffs named as incumbrancers." Therefore I understand Lord Cranworth to be distinctly of opinion that it makes no difference whether the case is to be regarded as one of bargain between the two or of bounty from one. That commends itself to my mind as being according to principle. The bargain is not with creditors: they are equally strangers, whatever might have been the reason for the disposition. It is a matter of moment as regards the other parties, but cannot give the creditors any rights which they otherwise would not have. Having now, I think, sufficiently shewn the difference between the two cases of Garrard v. Lauderdale (2) and Synnot v. Simpson (1) as far as is necessary to this case, let me apply that to the facts before me. Here there were two gentlemen, Richard Lloyd-Edwards and Francis Lloyd-Edwards, father and son, deriving their power of dealing with this estate under a settlement which had been put an end to by a disentailing assurance for the purpose of resettlement, so that they had a general power of appointment; and it was intended, subject to such disposition as they might presently make, to resettle the estate on the family. In 1867, by a deed of family arrangement, a trust is created. That trust, which is expressed in a rather confused manner, is to sell either immediately or after the death of (1) 5 H. L. C. 121. (2) 2 Russ. & My. 451. J. 1897 v. ELLIS. Richard, but, if in his lifetime, with his consent, and out of the KEKEWICH proceeds of sale to pay the debts of Richard; but the debts are not only charged (if there is a charge at all) on the proceeds of sale, but also on the rents and profits until sale; so that there PRIESTLEY is a charge on the corpus of the unsold estates as much as on the proceeds of sale. Subject to that, and subject to Richard Lloyd-Edwards' own life interest, the property is settled, by reference to another deed, on Francis for life, with remainders over under which the son of Francis now claims. The result is that it seems to me to bring it in terms (subject to two observations) within Synnot v. Simpson (1) as described by Lord Cranworth. The two observations are these. First, this might have been put an end to by Richard and Francis, and, it is argued, in substance was put an end to by them; secondly (and this is a small point), that the creditors there described were not necessarily creditors to be ascertained at the death of Richard only, but creditors during his life or subsequently. That is a distinction in terms between this case and that of In re Fitzgerald's Settlement (2), because there it appears that the creditors were to be ascertained after the death of the settlor. To my mind that cannot make any difference: I think that is a mere distinction of words; and, there being a provision here for the payment of creditors either during Richard's life or after his decease, you have a trust-if it be a trust at all-for the creditors at the time of his decease. That brings the case, as far as this point is concerned, within Synnot v. Simpson (1) and not within Garrard v. Lord Lauderdale. (3) The two The other point deserves more consideration. donors-the two settlors-were, as I have mentioned, Richard and Francis. It is quite possible-I am not expressing an opinion one way or the other—that they might have had power to cancel this provision for creditors during the joint lives, to oust or defeat such title as the creditors had, if they had a title at all, and so assure the estate to the uses coming in subsequently to that provision for the creditors. That point I must (2) 37 Ch. D. 18. (1) 5 H. L. C. 121. J. 1897 v. ELLIS. KEKEWICH leave open, as I gather Lord Cranworth did in Synnot v. Simpson. (1) It does not arise, because Richard died without any attempt to revoke the deed; and the result was that PRIESTLEY Francis took the estate under the deed, and the defendant, his son, also takes the estate now under the deed. I think, therefore, it is decided by Synnot v. Simpson (1), according to the passage I have read, that the infant defendant now takes, and Francis before him took, the estate subject to the claim of the rights of the creditors under the trust, unless it could be said that the trust has been revoked by reason of the later deed of 1889, whereby Francis attempted to dispose of the property and ousted or defeated the plaintiffs. Francis was at that time owner or tenant of the estate in possession under the settlement of 1867. He was also executor of Richard; and it was said that, acting in both characters, he could do that which could have been done (if at all) by Richard and Francis during their joint lives. No authority has been cited to support any such proposition, and it seems to me entirely unfounded. The power-if there was a power-in the two, a point which I have left open, was a power vested in them because they were settlors, on the principle that, having provided that property should, subject to a charge for debts, go in a certain way, and assuming that the charge of debts was revocable by the two, they could concur in resettling the estate so as to defeat the creditors that is to say, sweep away the provision for the payment of debts. But a power of that kind is not exercisable by an executor: it was exercisable (if at all) by the two joint settlors; and immediately Richard died the estate of Francis became an estate in possession by virtue of the deed; and, notwithstanding he was executor, it seems to me to be contrary to every principle to say that he could exercise, in his double character, the power vested in him and in Richard as a joint power. That seems to me to be distinctly following what Lord Cranworth says; and on this ground I think that the argument on the part of the defendants cannot be upheld. I must therefore hold that this case is within Synnot v. Simpson (1), and that (1) 5 H. L. C. 121. J. there was a trust created in favour of Richard's creditors which, KEKEWICH whatever might have been the case in Richard's lifetime, became irrevocable on his death. 1897 V. ELLIS. There will be a declaration that the sum remaining due to PRIESTLEY the plaintiffs, with interest, is, by virtue of the deed of 1867, charged on the estate therein comprised, and an order to raise the same, together with the costs of this action, by application in chambers, either by sale or mortgage. I say nothing as to the claim raised by the infant to be exonerated out of Richard's or Francis's estates; that is not a question which can properly arise before me in this action. Many questions may arise in the administration of those estates; but now I am only deciding the rights of the plaintiffs in this action. Solicitors Ullithorne, Currey & Currey, for J. Rice Roberts & Laurie, Llangefni; Robbins, Billing & Co., for C. Owen, Pwllheli; Western & Sons. G. I. F. C. MADELEY v. ROSS, SLEEMAN & CO. [1895 M. 1874.] Procedure-Company · Debenture-holder's Action Shareholder Plaintiff— In an action against a limited company by one debenture-holder on behalf of himself and all other debenture-holders, the chief clerk may, under an inquiry directed by the judgment as to the property charged by the debentures, find what uncalled capital is due from the several shareholders (where uncalled capital is part of the security), notwithstanding that no calls can actually be made in such an action; and where the plaintiff is himself a shareholder and is found indebted in a sum of uncalled capital, he, being a party to the action, is bound by that finding, unless varied by the judge, the Court having jurisdiction to decide in that action the question of the plaintiff's liability without leaving it to be decided by other proceedings. THE defendants, Ross, Sleeman & Co., Limited, were incorporated on May 7, 1892, under the Companies Acts, 1862 to 1890, for the purchase of the property and assets of an old company called "Ross & Sleeman, Limited," which carried on the business of maltsters, millers and flour merchants at Taunton, KEKEWICH 1897 Feb. 10. |