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KINDERSLEY, V.-C., said that it had been decided Baily, Q.C., and Renshaw, for the plaintiff, conthat a gift to the children of A, simply, would make tended that he was a trustee, and therefore entitled to them joint-tenants, even although after-born children the relief asked. The legal estate passed by the will, were included. The question was, as to the effect of Lewin on Trusts, 54 (4th ed.). the words, “as they should come of age.” In Woodgate v. Unwin (loc. cit.), it was decided, that if the

Osborne Morgan, for the cestuis que trusts under the interests did not vest till twenty-one, there was a

will of Henry Sweeting, supported the same view, and tenancy in common. In Kenworthy v. Ward (loc. cit.), contended that, as no heir-at-law could be found, they Vice-Chancellor Wood said, that it was impossible to

were entitled to the beneficial interest, for there could reconcile Woodgate v. Unwin with the general current be no equitable escheat, of authorities, if the principle laid down in that case

Burgess v. Wheate, 1 Ed. 223. was, that where there was a gift to children on attain

Wickens, for the Crown, did not dispute the authoing twenty-one, the mere circumstance of these children rity of Burgess v. Wheate, notwithstanding the disa coming into esse at different periods was of itself suf- of the Master of the Rolls in, ficient to convert the joint-tenancy into a tenancy in

Barrow v. Wadkin, 24 Beav. 23; But in Macgregor v. Macgregor (loc. cit.), but he contended that the plaintiff had neither legal Lord-Justice Turner said that Woodgate v. Unwin was

nor equitable interest, and, therefore, the bill onght to not decided on that principle, but on the principle be dismissed. The legal devise was void, that in order to constitute joint-tenancy the property 9 Geo. 2, c. 36, s. 3. must vest at once, and not at twenty-one, as otherwise some co-tenants might take vested and other Baily, Q.C., in reply. contingent interests. Woodgate v. Unwin was therefore not at variance with the other authorities. It

The following cases, in which the Court had dealt was clear that the interests given by the will to with secret illegal trusts, were also cited :Charles White and Jane White were not vested till

Adlington v. Cann, 3 Atk. 141 ; twenty-one ; so that, in accordance with the cases, his

Edwards v. Pike, 1 Ed. 267; Honour held that the will created

Boson v. Statham, ib. 508 ;

tenancy in common, and that by the death of Charles White under

Bishop v. Talbot, cited in, twenty-one, the gift to him had lapsed.

Muccleston v. Brown, 6 Ves. 60;
Strickland v. Aldridge, 9 ib. 516 ;

Payne v. Hall, 18 ib. 475;
Kindersley, V.-C.

Walgrave v. Tebbs, 2 K. & J. 313 ; 9, 10 DEC. 1863.

Tee v. Perris, ib. 357. Will--Secret Illegal Trust--Legal Estate.

KINDERSLEY, V.-C., said that the meaning of the A devise, accompanied by a secret illegal trust, passes expression “ secret trust” was, that there had been a prothe legal estate to the devisee.

mise, either express or implied, by the devisee to the 9 Geo. 2, c. 36, s. 3.

testator to the effect that the devisee would deal with

the property according to the wishes of the testator, Robert Hicks devised real estate to Mary Hicks for although nothing but a simple devise appeared in the life, remainder to Henry Sweeting and John Sweeting will. Suppose a testator devised to A, who agreed that in fee.

he would convey to B; B could come to this Court Robert Hicks died in 1825, leaving John Hicks his and, while admitting the legal devise, could obtain heir-at-law; John Hicks died in 1827.

relief on the ground that it would be against cou: John Sweeting died in 1838 ; Henry Sweeting, by a science and good faith for A to claim to be owner, will dated 1847, devised his real estate to the plaintiff and to contend that nothing could be imported into and the Rev. Henry Sweeting, upon certain trusts the will. But if A had not made any promise to the therein declared, and died in 1848; and the Rev. testator, a mere expression of the intention of the Henry Sweeting died in 1856.

testator could not, unless it appeared in the will

, give Mary Hicks died in 1862, and no heir of John Hicks any right to B. That was the simplest case. But now could be discovered.

import into the case the circumstance that the under The plaintiff, being in possession, filed this bill, standing was that the devisee should convey to a charity

. admitting that the devise to Henry Sweeting and John Unless the Statute of Mortmain contained anything Sweeting was made under an understanding with altering the state of things, the same principle must them, that they would convey the property to or in be applied. A Court of Law could not declare snek favour of the Free Grammar School at Godmanchester, a trust, and could not even look at the circumstances and praying that the rights of persons interested in which would constitute such a trust : such a Court the devised property might be declared.

could only look at the will itself. Now the Court The question was, whether the will had passed the of Equity looked upon the legal devise in the same legal estate.

manner as a Court of Law. The Court held that!

party was entitled to come here on the ground that it A summons had been taken out for the 10th of July would bo against conscience that the devisee should last, and the witness attended. The examination was hold the property for his own benefit ; and, as what adjourned till the 20th ; but the witness, having rewas intended could not take effect, the Court would ceived notice from the plaintiff that the examination decree a trust for the heir.

would not then be proceeded with, did not attend. That was according to the general scope of the cases. No adjournment of the examination was made. There was no instance in which an heir-at-law had An appointment was afterwards made by the plaintiff attempted to go into a Court of Law, but there was for the 25th of November, and on the 21st a notice case after case in which the heir had come here. If thereof was served on the witness, and an insufficient there were a legal remedy, every one of those cases tender of money was left with him, which he refused to would have been wrongly decided ; for where the legal accept, and on the 25th he did not attend the examiremedy was adequate the Court would send parties to nation. a Court of Law. It was urged that in Adlington v. Cann lloc. cit.) it appeared that there was an idea in the mind

Faber now moved that the witness might be ordered of the Judge of a legal right in the heir ; but it was

to attend, and cited,

35 Gen. Ord. r. 14. not fair to say that. In Adlington v. Cann there was a bequest of leaseholds, &c., as well as real estate,

Osborne, Q. C., and J. T. Humphrey opposed the to one who was executor, and to whom also personal motion, on the groundestate was given ; and in respect to that alone the

1st. That, as the examination had been discontinued Court might entertain his bill. Lord Hardwicke without adjournment, the witness was not bound to having thought that a secret trust was not made out, attend again without a fresh sunimons. gave the heir-at-law an opportunity of going to a

2nd. That the tender was insufficient. Court of Law, of which, however, she did not avail herself.

Paber, in reply. Payne v. Hall (loc. cit.), before Lord Eldon, had been referred to as showing that the heir had a legal

KINDERSLEY, V.-C., said that there was nothing in right; but such an idea would be contrary to all the the rules or orders of the Court directing how an exdecisions of Lord Eldon.

amination should be continued when it had not been His Honour said that, in accordance with recent adjourned ; and therefore he should follow the practice decisions and the general opinion of the profession, in Chambers, which, upon inquiry, he found required, and in the absence of any decision to the contrary, he under like circumstances, that a fresh summons should

be taken out. was of opinion that the devisecs took the legal estate, and therefore had a right to come to the Court for Minute.- Motion refused, with costs. relief.

With respect to the doubts that had been thrown upon Burgess v. Wheate, his Honour thought, as it had been an authority for so long, and so many titles must

Wood, V.-C.

10 DEC. 1863. depend upon it, that great evil would arise from overruling it; but he was not expressing any opinion as to Practice-Production of DocumentsPrivilege Whether an alteration of the law by the Legislature

- Accountant's Reports. kould not be desirable. His Honour dismissed the bill as against the Crown,

On summons to produce documents used by defendant but said, that inasmuch as the Crown had, in combating in a former litigation in which the same mallers were in the plaintiff's right to come into the Court, been in question :effect contending that the legal estate was in the heir,

Held, 1st. That drafts of answers, affidavits, &c., and therefore that the property escheated, the dismissal filed were protected. would be without costs.

Held, 2nd. That counsel'sbriefs, c.ccept instructions and, observations for counsel, and remarks by counsel, were

not protected, but would not be ordered to be produced Kindersley, V.-C.

LAWSON V. STODDART. so far as they contained copies of documents otherwise 10, 11 Dec. 1863.

produced. Practice Examination of WitnessesSummons. Held, 3rd. Thut accountant's reports, and semble, also

extracts made by accountants from the accounts, were When there has been no adjournment of the exami

protected. natim of a vitness, he cannot be compelled to altend An accountant employed by a solicitor in getting up again, without a fresh summons.

the defence is the solicitor's clerk pro hac vice. This was a motion that the defendant might be This case came on on summons adjourned from ordered to attend and be further examined as a witness Chambers, for the production of certain documents.

The object of the suit (which is reported on demurrer,

} Walsham v. Staintox (2).


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for the plaintiff.


2 N. R. 312, and 1 H. & M. 322, and ante, p. 56,) was Rolt, Q.C., and Cotton, for the Carron Company, to set aside the sale of certain shares in the Carron contended that even extracts and compilations froni Iron Company, alleged to have been bought by H. the accounts would be protected. The very juxtaStainton and J. Staiuton at an undervalue, in conse- position of the items selected by the accountant might quence of their frauds upon the company. These give the plaintiff an insight into their case, frauds by the Staintons had been the subject of pre- Steele v. Stewart, 1 Ph. 471. vious litigation in this Court, to which the Carron Company had been parties (see Stainton v. The Carron Wood, V.-C., said that the present case came within Company, 24 Beav. 346 ; Maclean v. Dawson, 27 Beav. a principle which was sufficiently established—the prin: 21, 25). The company were also defendants in the ciple, namely, that where a solicitor employed in a present suit.

case of great difficulty, found that a portion of the The company having been required to make a work was of too intricate a character for him to advise further affidavit as to documents, filed an affidavit upon it, and called in some person, such as an objecting to the production of certain documents accountant, to assist him, that person was treated as specified in the schedule, on the grounds that they the solicitor's clerk pro hâc vice, as it was put by Lord consisted “of confidential communications, which Lyndhurst in Steele v. Stewart (loc. cit.). The London passed between the agents of the company on the one Gas Light Company v. Chelsea (loc. cit.) had no direct side and the legal advisers of the company on the application to the present case ; for it did not appear other side, or between the several legal advisers of the from the report of that case whether the reports there in

and of documents confidentially prepared on question were prepared for the purpose of the litigation, behalf of the company by such legal advisers, or under or, in fact, for what purpose they were prepared. their direction,” as to part for the purpose of the suit With regard to the drafts, they must be protected. of Stainton v. The Carron Company; and as to the When the answer was filed it became publici juris, but remainder for the purpose of the suit of Maclean v. the drafts were anterior to publication, and the sucStainton, and other similar suits.

cessive alterations in them might disclose the exact The documents, the production of which was sought character of the confidential communications between and objected to, were

the client and solicitor, preparatory to framing the 1st. Drafts of answers and affidavits filed in the documents to be put on the file.

Then, with regard to the briefs to counsel, if the

identical things briefed were documents of which office 3rd. Reports of an accountant prepared for the pur- or other copies were already given, the Court would pose of the defendants' defence in the same suits. abstain from ordering production of those briefs, at the

The items under the last head principally referred to mere risk of doing something beyond the privilege of were described in the schedule as “a report by Henry solicitor and client. But so far as the briefs contained Chatteris, accountant, and five accounts referred to in copies of things which were publici juris, and not it, and supplemental report by him, and account otherwise produced, they were not protected. The referred to in it as part instructions for answer," instructions, however, and observations for the benefit "copy report prepared by the above-named Henry of counsel, and the remarks of counsel, and even their Chatteris," and sums improperly withdrawn by pen-marks would be protected ; for the other side were Henry Stainton."

not entitled to know the advice given in that form,

any more than any other kind of advice. Giffard, Q.C., and Eddis, for the plaintiff, cited, With regard, lastly, to the most important class of London Gas Light Company v. The Vestry of the documents sought to be protected, those various Parish of Chelsea, 5 Jur. (N. S.) 469 ;

reports of Henry Chatteris, it was distinctly Lafone v. Palkland Islands Company, 4 K. & J. in the body of the affidavit, that they were documents

confidentially prepared in the previous litigation by the [Wood, V.-C., referred to,

legal advisers of the defendants, or under their direction. Curling v. Perring, 2 My. & K. 380.]

Now, the Court was entitled to look into the schedule That was a case of a witness. There was nothing to see if the description of the particular documents to show that these documents were prepared by the corresponded with the general description given in accountant with a view to his giving evidence as a wit- the body of the affidavit ; but it was not requisite,

It must clearly appear from the description of contended by Mr. Giffard, that it should the document in the schedule, that it was privileged. the description in the schedule that they were neces

[Wood, V.-C., referred to a similar case which had sarily of a character to be protected. It was enough come before him at Chambers. He had there held that if the Court by reasonable intendment could hold that the accountant's reports and observations were privi- the documents were of the character positively sworn to leged, but the accounts themselves and all extracts in the body of the affidavit. There was nothing in from them made by the accountant must be pro- the particular description of those documents in the duced.]

schedule, which in any way contravened the general

former suits.

2nd. Briefs of counsel used in those suits.



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description of them which was sworn to. That being Regulation Act, 1853, section 116, for the Court sitting 80, the Court must assume that they were really of in lunacy to insert a proviso in a mortgage of the that character. Now there were two classes of cases lunatic's estates, making one estate the primary security. represented by Curling v. Perring (loc. cit.) and Stewart v. Steele, in which the Court extended pro John Freeman, by his will dated the 9th of Decemtection to the person against whom discovery was ber, 1851, devised his Kenton estate, his Aspall estate, sought - first, the client was entitled to have full subject to a life estate given to his wife, and his Monk communication with his legal advisers ; and, secondly, Sohan estate, subject to a life estate given to E. they must have full and unreserved communica- Garneys, to trustees, upon trust to sell and to hold tion with any persons as witnesses in the cause, the proceeds upon the trusts thereinafter declared of without the other side being able to extract by pro- his personalty, and he bequeathed his personalty to duction or otherwise any discovery of what had his executors upon trust to get in and convert and to passed between either the client and his solicitors or hold the moneys upon trust in the first place, to pay his solicitors and the witnesses. Those documents and discharge all his just debts and funeral and testawould be privileged under either of those heads. So inentary expenses and his legacies, and subject thereto far as they contained remarks and observations of the to divide the same into seventeen equal shares, and accountant, his Honour, having regard to the principle pay them to his seventeen nephews and nieces therein stated above, had no doubt. And even if any of named. The will contained no residuary devise. them contained mere extracts from the accounts, Mr. In 1858 the testator purchased the Hopton estate Rott's arguments had considerably shaken his Honour's for 1,325., and immediately after the conveyance of it mind as to the correctness of his decision at Chambers, to him deposited the title deeds with his bankers, to in the case to which he had referred. But he could secure the balance due or to become due on his not necessarily infer that any of those documents did account. consist simply of extracts from the company's books. On the 15th of December, 1859, the testator was The item, for example, described as “sums impro- found a lunatic by inquisition. perly withdrawn by Henry Stainton,” could not By the Master's Report in the Lunacy, dated the possibly be a mere extract, for, of course, Henry 6th of July, 1861, after stating debts due from the Stainton, who kept the books, would not enter any lunatic's estate, including the banker's debt and the costs stiins under that heading. Even with regard to mere of the lunacy, amounting together to 1,5221. ls. 9d., extracts

, however, it would be interfering with the and that having regard to the 116th section of the freedom of consultation with the solicitor, if the Lunacy Regulation Act, 1853, it was just and reaextract made for the purpose of the suit out of a sonable and expedient that 1,6001. should, for the voluminous set of books were ordered to be produced, purpose of paying the said 1,5221. ls. 9d., be raised for it would inform the other side of what the solicitor by the committees of the estate by mortgage of the or his clerk pro hac vice, considered important to the Hopton estate as primarily liable, and of a sufficient

part of the other real estates of the lunatic menNo documents, therefore, would be produced, except tioned in the schedule (which comprised all the those particular briefs of which no account was given lunatic's real estate), the Master submitted that it elsewhere



, excluding all instructions, observations, should be ordered that, having regard to the 116th and remarks.

section of the Lunacy Regulation Act, 1853, for the purpose of paying the said debts, 1,6001. should be

raised by the committees by mortgage of the Hopton Wood, V.-C.

} FREEMAN V. ELLIS. estate as primarily liable, and of a sufficient part of 3, 11 Dec. 1863.

the other real estate, and that it should be referred to ExonerationLunacy16 & 17 Vict. c. 70 the Master to settle and approve a proper mortgage (Lunacy Regulation Act, 1853).


By an order, dated the 24th of July, 1861, the A testator devised estates A and B in trust for pay report was confirmed by the Lords Justices, and it ment of his debts, and afterwards purchased estate C. was ordered accordingly. Subsequently he was found a lunatic, and under an

In pursuance of such order a mortgage in fee of the order in the lunacy estates B and C were mortgaged, for Kenton and Hopton estates was executed to R. C. payment of certain debts of the lunatic and costs, with Maul, to secure 1,6001. and interest. The mortgage a proviso in the deed that as between the lunatic, his deed contained the following clause :heirs, and devisees, estate C should be the primary “Provided always, and it is hereby declared, that as

between the said John Freeman, his heirs and devisees, Held

, that the mortgage debt was payable out of the the said lands and hereditaments and premises at proceeds of the devised estates in exoneration of estate Hopton aforesaid shall be considered and taken as the

primary security for the repayment of the said sum of Semble, it is not ultra vires, under the Lunacy 1,6001., and all interest thereon.”



The testator died in March, 1862. His personal They might have ordered a mortgage of the Hopton estate was insufficient for the payment of his debts, estate alone, as the best mode of raising money ; and, and thereupon a question arose between his heir-at- having this larger power, they had what must be conlaw and the persons entitled to the proceeds of the sidered the smaller power, of declaring the order of conversion of his devised real estates, as to which estate liability between the estates selected to be mortgaged. should bear the burden of the 1,6007. mortgage, and His Honour's decision, however, did not turn on the the present suit was instituted accordingly.

question of jurisdiction, for, rightly understood, the The points argued were,

proviso in question had really nothing to do with the 1st. Whether the Lords Justices had jurisdiction to matter. direct a mortgage to be executed containing the clause The question, whether a particular estate ought to set out above.

be exonerated or not always depended on the testator's 2nd. Whether, notwithstanding the clause, and intention expressed in his will. Graves v. Hicks (loc. assuming it to have been properly inserted, the Hopton cit.), and the other cases cited, had no bearing on the estate ought not to be exonerated by the estates spe- point, for in all those cases the question was, whether cifically devised for payment of debts.

the debt was in reality the testator's debt or not. It was conceded that Locke King's Act (17 & 18 Even if it were his debt in a sense, as where he had Vict. c. 113) had no application to the present case. entered into a covenant to pay a mortgage debt on a

transfer of it, the Court had held it was not in Rolt, Q.C., and B. B. Rogers, for the plaintiff, one of the nephews

strictness his debt, because his personal estate had

never had the benefit of the advance. That was the On the 1st point referred to, The Lunacy Regulation Act, 1853, ss. 116, 119, Now there was no question that the mortgage debt in

principle upon which Graves v. Hicks had been decided. Independently of the Act, the heir had no equity,

the present case was the testator's own debt, and, if so, Ex parte Blom field, 1 Ves. Jun. 453 ;

it ought prima facie to be paid out of the fund Oxenden v. Lord Compton, 2 Ves. Jun. 69;

expressly provided by the testator's will, for the pay.

ment of his debts. Did the proviso in the mortgage Ex parte Phillips, 19 Ves. 123. * On the 2nd point they cited,

deed make any difference in this respect ? His Honour

thought not. Hamilton v. Worlcy, 2 Ves. Jun. 62 ;

It was inserted apparently because the

Lords Justices in administering the lunatic's estate Graves v. Hicks, 6 Sim. 398 ; Duke of Ancaster v. Mayer, 1 Bro. C. C. 454 ; but, as the mortgagee required better security, they

thought the Hopton estate the most fit to be mortgaged, 1 W. & T. L. C. 505 ;

included other estates. The intent and purpose of the Loosemore v. Knapman, Kay, 123; Ex parte Digby, Jac. 235;

proviso, therefore, was not to alter the directions in

the testator's will, which must be assumed not to hava Lady Langdale v. Briggs, 8 De G. M. & G. 391. A will spoke from the testator's death only as to the being first made available in event of the security

been known, but to provide for the Hopton estata property comprised in it,

being enforced by foreclosure or sale. For example

, Bullock v. Bennett, 7 De G. M. & G. 283.

if the mortgagee had exercised his power of sale, and Giffard, Q.C., and Dewsnap and Broke, for defend

had found it necessary to sell more than the Hopton ants in the same interest.

estate, the surplus moneys would have gone wholly to

the credit of the second set of estates. The 139th sed. Phear (Sir H. Cairns, Q.C., with him,) con

tion of the Lunacy Regulation Act, 1853, did not help tended

the interpretation of the proviso, for that section merely As to the 1st point, that the Lunacy Act empowered gave validity to the mortgage and made it the lunatic's the Lords Justices to deal with the lunatic's estate for

If his Honour had thought that the proviso in his personal benefit only, and not so as to alter the question had any further effect than he had stated, so rights of other persons after his death. The insertion

as to alter the directions contained in the testator's of the clause, therefore, was ultra vires.

will, he would have felt bound to give more considera As to the 2nd point, if the Hopton estate had been tion to the question of the Lords Justices jurisdiction mortgaged alone, there could have been no doubt of the heir's title to be exonerated. Could the fact of other estates being included in the mortgage alter his be paid out of the testator's residuary personal estalia

Minute.—Declare that the mortgage debt ought to rights?

in the first instance, and then out of the fund by his Rogers, in reply.

will provided for the payment of his debts.

* Note.-See on this point, WOOD, V.-C., was not prepared to say that the

Re Leeming, 3 De G. F. & J. 43. insertion of the proviso in the mortgage deed exceeded the authority of the Lords Justices sittivg in Lunacy.

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to insert it.

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