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and not to the nature of the property. The question is, not whether the testator's interest was legal or equitable, but whether a creditor of the testator, seeking to get paid out of such assets, can obtain payment thereout from a Court of Law, or can only obtain it through a Court of Equity. This, I apprehend, is the true distinction. If a creditor brings an action at law against the executor, and the executor pleads plenè administravit, the truth of the plea must be tried by ascertaining what assets the executor has received; and whatever assets the Court of Law, in trying that question, would charge the executor with, must be regarded as legal assets-all others would be equitable assets. Supposing, however, that distinction to be well founded, there still remains the question, what property come to the hands of the executor would a Court of Law consider property to be taken into account as assets, in trying the truth of the plea of plenè administravit? I think the general principle is, that a Court of Law would treat as assets every item of property come to the hands of the executor which he has recovered, or had a right to recover, if the testator had merely appointed him executor, without saying anything about his property or the application thereof. That I think is the test which, upon principle, a Court of Law would apply. Assuming that to be the true principle, suppose, first, that the testator was at his death entitled to a sum of money equitably charged on land; as the executor could recover this merely virtute officii as executor, I apprehend that, when received by the executor, it would be legal assets in his hands. Next, let the same principle be applied to an equity of redemption. . . . It is not now
considered as a matter of indulgence-it is now a matter of absolute right. And is it not merely by virtue of his office that the executor of a mortgagor who has mortgaged a chattel comes to this Court to redeem? I think it clearly is. If there were nothing in the will but the appointment of executor, would not the executor be entitled simply virtute officii to ask for redemption? Clearly he would. A mere administrator might demand it. If so, I confess it appears to me that the general principle, as I have stated it, applies to an equity of redemption of a chattel interest, whether real or personal; and that such an equity of redemption would be legal assets. Now, whether those cases which have been cited with respect to the equity of redemption of a mortgaged term of years are to be considered an exception, it is not absolutely necessary for me to determine. If I were called upon to do so, I should say that, in my opinion, those cases are not sustainable, and ought not at this day to be followed."
VOL. II. NO. III.
3. ATTORNEY-GENERAL V. STEPHENS. 4 De Gex,
Boundaries, Confusion of-Duty of Tenant, Owner of adjoining Lands, to keep Boundaries distinct.
"Where a tenant of land for life, or for years, or at will, has land of his own adjoining to that which he so holds as tenant, it is his duty to keep the boundaries between them clear and distinct, so that, at the expiration of the tenancy, the reversioner or remainderman may be able without difficulty to resume possession of what belongs to him; and if the person having such partial interest neglects this duty, and suffers the boundaries to be confused, so that the reversioner or remainderman cannot tell to what land he is entitled, this Court will give relief, by compelling the person who has occasioned the difficulty to make good, out of what may be considered to be in the nature of a common fund, that portion of it which belongs to another. The party guilty of the neglect has land, a portion of which ex concessis belongs to another. He has, by his neglect of duty, made it impossible to ascertain the particulars of which that portion consists, and this Court then steps in and compels him to make good an equivalent, as near as may be, out of that which clearly includes what, but for his default, might have been taken from him by legal proceedings. This relief is given not only against the party guilty of the neglect, but also against all those who claim under him, either as volunteers or as purchasers with notice." Per Lord Cranworth, C.
4. SCOTT V. JACKMAN. 21 Beav. 110.
Conditions of Sale-" Largest Lot," Purchaser of When entitled to Deeds.
Some property having been sold in twelve lots, it appeared that by the conditions of sale the title-deeds were to be delivered to "the purchaser of the largest lot." The plaintiff purchased the largest lot in value and extent, but the defendant purchased several lots whose aggregate value and extent exceeded those of the plaintiff's lot. It was held by Sir John Romilly, M.R., that the plaintiff was entitled to the custody of the deeds, and that, as the litigation had been occasioned by the defendant, he ought to pay the costs of the suit.
5. LOMAX V. RIPLEY. 3 Smale & Giff. 48.
Devise- Charity-Secret Trust for, must be proved.
On a bill being filed by the next of kin of a testator impeaching a devise of real estate to his wife in fee, upon the ground that the devise was made on a secret trust for a charity, Sir John Stuart, V.C., held that the mere knowledge by the wife of her husband's wishes to found a charity, and her intention to carry them into effect, was not a sufficient ground for the interference of the Court, as it did not appear, and it was, indeed, denied by her, that she had either directly or indirectly entered into any engagement with him to dedicate the property to charity. "The utmost effect," said his Honour, "that can be given to all the other facts, is to show a number of concurring circumstances to sway or stimulate the inclination to fulfil the known wishes of the testator; but not only nothing to produce any obligation, the performance of which could be compelled; but on full knowledge and advice that any obligation or compulsion would defeat that wish, which no law forbade him to entertain. There is no control expressed or implied over the right and power which he gave to this lady by a gift in terms absolute; and however strong his hopes and expectations may have been, this seems a case in which, in the language of Sir W. Grant, an uncontrollable power of disposition is property, and not trust.'
"In a tender and sensitive mind, the desire to fulfil the known wishes and intentions of a friend may produce a state of determination which, as a motive of action, may be as strong as any legal obligation. In such a case, the motive proceeds from the mind and will of the person acting, and the merit of the action, as well as the strength of the motive, consists in the voluntary fulfilment, and in the absence of express obligation. But it is not the province of this Court, in dealing with the right to property, to interfere with conduct regulated by these emotions, or to act upon anything short of actual engagement and obligation amounting to a contract or a trust, where it is asked to abridge or to annul any bequest or devise which in its terms confers an absolute and beneficial interest." (See also to the same effect the recent decisions of Wallgrave v. Tebbs, 2 Kay & Johns. 313; Lee v. Ferris, ib. 357.)
6. HAWKINS V. GATHERCOLE. 4 De Gex, Mac. & G. 1. Judgment registered-No Charge on Benefice under 1 & 2 Vict. c. 110.
It was held in this case, by the Lords Justices of the Court of Appeal in Chancery, reversing the decision of Lord Cranworth when Vice-Chancellor (1 Sim. N. S. 63), that a registered judgment against a clergyman does not create a charge upon his benefice, entitling the judgment creditor to the appointment of a receiver under the 13th section of 1 & 2 Vict. c. 110. "It cannot, I apprehend," said Lord Justice Knight Bruce, "be denied that by the law of this country, as it stood at the time when the Act (1 & 2 Vict. c. 110) passed, a beneficed clergyman was prohibited and disabled from charging, and from contracting to charge, the fruits of his living, or any part of them, even as against himself,-a point as to which it must be unnecessary now to mention particularly that numerous class of cases to which Arbuckle v. Cowtan (3 B. & P. 321), Bishop v. Hatch (1 A. & E. 171), Alchin v. Hopkins (1 Bing. N. C. 99), and Saltmarshe v. Hewett (1 Ad. & E. 812), belong. And it seems to me equally clear, that the law in this respect was founded on considerations of public policy; that is to say, the general good of society, and especially the temporal support of the national religion. The general good was, in my judgment (if I may properly express an opinion upon the matter), well consulted by this provision of our institutions, whether new in the reign of Elizabeth, or of earlier origin. Nor has the law in this regard been, as I believe, altered during the present reign. Still it is illegal, still impossible, for a beneficed clergyman to make an effectual contract for charging, even against himself, the whole or any portion of the fruits of his living; at least, so I understand the matter. If, however, the plaintiff's present contention is well founded, a creditor of an ecclesiastical rector or of a vicar has but to obtain a judgment against the debtor for the debt, in order to be, so far as equitable rights and equitable remedies are concerned, in the same position as if he had been capable of contracting, and actually contracted to charge, at least as against himself, the property belonging to him in right of his church or vicarage, directly with the debt; one consequence of which must, I suppose, be the liability of the property to foreclosure or sale for the whole period of the incumbency under a decree of the Court of Chancery, according to its common course of dealing with equitable mortgages, and to have a receiver placed on it by the same authority at the
instance of the creditor. . . . . The words descriptive of property in the 13th section are large and general, though the mere mention of 'rectories' and 'tithes' does not, I conceive, advance the plaintiff's argument, whether we refer to the Statute of Frauds or not. But, assuming the words to be extensive enough to cover such property as that in dispute, still it is impossible for us not to see that there is property confessedly and indisputably falling within the section, much more than sufficient to give operation to every part of its description,—a description which, upon every theory, must be deemed redundant. And the question, therefore (upon the assumption in the plaintiff's favour that I have mentioned), is, whether, there not being any reading suggested according to which a word is left without effect (so far as that can be true where there is a superabundance of expressions), it is necessary or right to apply them with literal fulness and exactness; whether, after reading the whole statute with a due degree of attention to the nature of the subjects certainly embraced by it,-to the state of our institutions and jurisprudence when the Act passed,-to the judicial construction that other statutes have by approved decisions received,-and to the universally-recognized canons by which the interpretation of laws is regulated,-we ought to consider the true view of the 13th section as being for or against the present plaintiff. In my opinion, it is against him. I am persuaded that the 13th section ought not to be read as extending to the property which it was not when the Act. passed, nor since has been, possible for a debtor to affect directly by any contract of his own for charging it. I am persuaded that the policy of the statute of Elizabeth was not meant to be interfered with. I think, accordingly, that the receiver here cannot remain, and that the sequestrations must take effect according to their legal force and order."
7. IN THE MATTER OF THE 10 & 11 VICT. c. 96, AND IN THE MATTER OF THE TRUSTS OF THE WILL OF JOSEPH WRIGHT, DECEASED. 2 Kay & Johns. 595.
Marriage in France of Domiciled Englishman-Previously-born Child not
A domiciled Englishman being the putative father of an illegitimate child born in France of a French woman, and afterwards becoming domiciled in France, it was held by Sir W. Page Wood, V.C., that he could not by his subsequent marriage with the mother of the child, legitimatize the child under the provisions of the French law, so as to enable it to