ROMER, J.) April 5. In re WYLIE (deceased); WYLIE v. MOFFAT. BOTTEN v. CITY AND SUBURBAN PERMANENT BENEFIT BUILDING SOC. that taken by the learned Judge in the Court below. I think that under these circumstances the second proposition cannot be relied on. I desire to point out that the statutory enactment as to alteration of rules is to be found in section 18 of the Act of 1874. [His Lordship read the section, and proceeded:] Whichever branch of this section applies, it provides that the alteration be made with the sanction of a meeting of which notice has been given in the manner provided by the rules of the society. No such meeting has been held. It is further to be observed that an instrument of dissolution may be duly executed in accordance with section 32 without any meeting being called at all. The Courts have at all times attached importance to the due observance of rules relating to general meetings, at which any shareholder affected may express his views; and if there is one case more than another in which such rules ought to be rigidly followed, it would seem to be where vested rights of a shareholder or class of shareholders are sought to be taken away by an alteration of an existing rule. In such cases I think that alterations in rules ought only to be held binding when made modo et forma as prescribed by the Legislature. Married Woman-Separate PropertyWill of Married Woman-Married Women's Property Act, 1893 (56 & 57 Vict. c. 63), 8. 3-Wills Act, 1837 (1 Vict. c. 26), s. 24. Section 3 of the Married Women's Property Act, 1893, applies to every will of a married woman who dies after the coming into operation of the Act. If the proposition contended for by the defendants were well founded, then in a case where a small number of members had given notices of withdrawal, but these exhausted the funds of the society, it would be possible for the remaining members, without even hearing their fellow shareholders, to deprive them of the advantage they had gained and of the fruits of their diligence. I cannot think that this was intended by the section, and I come to the conclusion that the defendants by acting on the instrument of dissolution will improperly interfere with the rights of the plaintiff, and that there ought to be an injunction to restrain them from so doing. Solicitors-Piesse & Son; Skipper & Tucker. A married woman, married in 1834, and possessed of separate property, by a will and codicil made in 1862 and 1884, disposed of all her property. Her husband died in 1887, and the testatrix died in 1894 without having re-executed either her will or codicil:-Held, that by virtue of section 3 of the Married Women's Property Act, 1893, the will and codicil passed all the testatrix's property as at the date of her death, whether separate or otherwise. By a settlement made in 1834, on the marriage of Mr. Wylie and Mrs. Wylie, personal property was vested in trustees upon trust to pay the income thereof to Mrs. Wylie for life for her separate use, and after her death to Mr. Wylie for life; and on the death of the survivor upon trust in the events which happened of there being no issue of the marriage, and of Mrs. Wylie surviving her husband, for Mrs. Wylie, her executors, administrators, and assigns, for her and their absolute benefit; but if Mrs. Wylie should die in the lifetime of Mr. Wylie, upon such trusts, &c., and subject to such powers, &c., as Mrs. Wylie should by her will, notwithstanding her coverture, direct or appoint. Mrs. Wylie, by her will made in January, 1862, which recited the said settlement and purported to be made in pursuance of the power therein contained and of any other power, directed and appointed that the settled funds should be transferred by the trustees to her husband absolutely; and by a codicil made in February, 1884, the testatrix confirmed her said will, but in the event of her husband dying in her lifetime, in pursuance of the power contained in the settlement and of any other power, directed and appointed that the trustees should hold the funds upon trust IN RE WYLIE. to pay a legacy of 1,000l. to A. P. Pringle, and as to the residue thereof, and as to all other property which should belong to her at her death, or over which she should then have a disposing power, upon trust that the trustees of the codicil should hold the same in trust for her nephew for life, and after his death for his eldest son absolutely. Mr. Wylie died in February, 1887. Mrs. Wylie died in May, 1894, without having, after her husband's death, reexecuted or republished either the will or codicil. The testatrix's property at her death consisted of the settled funds, amounting to some 24,000l., and savings out of her income amounting to some 6,0007. The question was raised by originating summons whether the said will and codicil of the testatrix operated in the events which had happened to pass the personal estate of which the testatrix was at her death possessed, besides such, if any, as was her separate estate at the time of her making the will and codicil. By section 3 of the Married Women's Property Act, 1893, it is enacted as follows: "Section 24 of the Wills Act, 1837, shall apply to the will of a married woman made during coverture, whether she is or is not possessed of, or entitled to, any separate property at the time of making it, and such will shall not require to be re-executed or republished after the death of her husband." Section 24 of the Wills Act, 1837 (1 Vict. c. 26), is as follows: "And be it further enacted that every will shall be construed with reference to the real estate and personal estate comprised in it, to operate and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appear by the will." J. D. Davenport, for the trustee and executor of the will. G. Farwell, Q.C., and F. L. Wright, for the defendant, the grand-nephew entitled under the will. The codicil effectually passes not only that which is the testatrix's separate property, but also all other property. In In re Cuno; Mansfield v. Mansfield (1), it was held (1) Law Rep. 43 Ch. D. 12. that the decision of the House of Lords in Willock v. Noble (2), to the effect that the will of a married woman operated only to give effect to her will as to property over which she had a power of disposition at the date of her will, was not affected by the provisions of the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75). Section 3 of the Married Women's Property Act, 1893, was apparently passed to remedy this defect. A will of a married woman who dies after the date of the Act of 1893 (the 5th of December, 1893), therefore now operates as an effectual disposition of all her property, including that which she could previously have only disposed of by will made after coverture. It is noticeable that sections 1 and 2 of the Act of 1893 speak of contracts and actions "now or hereafter" to be entered into and instituted by the married woman, whereas section 3 contains no such limitations as to time. [In re Bowen; James v. James (3), and In re Bridger (4) were referred to.] E. W. Byrne, Q.C., and A. C. Clauson, for the testatrix's next-of-kin.-The codicil only passes the testatrix's separate property. Section 3 of the Act of 1893 cannot be construed as extending the operation of wills already executed, and therefore in themselves complete before the date of the Act. Such a result can only be effected by express words. Section 3 should rather be construed as confined in its operation to the separate property of the wife, whether existing before the Married Women's Property Act of 1882, or made separate property by that Act. [G. Farwell, Q.C., was not called on to reply.] ROMER, J.-In my opinion the 3rd section of the Act of 1893 applies to every will of a married woman who dies after the coming into operation of the Act. The enactment is a beneficial one, and its operation ought not to be cut down without very cogent reasons. I have heard all that counsel can urge in support of a (2) 44 Law J. Rep. Chanc. 345; Law Rep. 7 H.L. 580. (3) 61 Law J. Rep. Chanc. 432; Law Rep. [1892] 2 Ch. 291. (4) 63 Law J. Rep. Chanc. 186; Law Rep. [1894] 1 Ch. 297. Bankruptcy Undischarged Bankrupt -After-acquired Property-LeaseholdsTransactions before Intervention of Trustee-Disclaimer-Vendor and PurchaserBankruptcy Act, 1883 (46 & 47 Vict. c. 52), 88. 44, 54, 55, and 168. The general rule in Cohen v. Mitchell (59 Law J. Rep. Q.B. 409; Law Rep. 25 Q.B. D. 262) applies to leaseholds, 80 that until the trustee intervenes all transactions by a bankrupt after his bankruptcy with any person dealing with him bona fide and for value in respect of his afteracquired leasehold property, whether with or without knowledge of the bankruptcy, are valid against the trustee. In re The New Land Development Association and Fagence (61 Law J. Rep. Chanc. 323, 495; Law Rep. [1892] 2 Ch. 138) discussed. Quære, whether the Bankruptcy Act, 1883, s. 55 (disclaimer of onerous property), applies to the case of after-acquired leaseholds. Vendor and purchaser summons. In 1891 leases with onerous covenants were granted to an undischarged bankrupt. In 1892 the bankrupt mortgaged the property to the vendors. In 1894 the vendors took possession of the pro perty as mortgagees, and shortly afternamely, on the 4th of May, 1894-they contracted to sell the property to the purchasers. The trustee in bankruptcy had not intervened or claimed the property. The purchaser, having discovered that the bankruptcy was still subsisting, objected that no good title was shewn. F. Cooper Willis, for the vendors.-We got our mortgages before the trustee intervened, and can therefore make a title without his concurrence, according to the general rule in Cohen v. Mitchell (1), Ex parte Dewhurst (2), and In re Clark; ex parte Beardmore (3). The exception to the rule made by The New Land Development Association and Fagence (4) is confined to real estate. Otherwise a bankrupt could saddle the trustee with after-acquiredonerous leaseholds, to which the disclaimer section (Bankruptcy Act, 1883, s. 55) does not apply. The trustee might become personally liable-Ex parte Dressler; in re Solomon (5). The trustee will join and admit that he claims no interest. T. Carson, for the purchasers.-The reasons given for the decision of The New Land Development Association and Fagence (4) apply with equal force to leaseholds. After-acquired leasehold property can be disclaimed under section 55, but, where there is a mortgage, only with the leave of the Bankruptcy Court-Bankruptcy Rules, 1886, rule 320. Leave would not be given to disclaim a valuable interest like this-Ex parte East and West India Dock Company; in re Clark (6); and for the trustee to join as proposed without any consideration would be a direct breach of trust. In any case the title is too doubtful to be forced on us. CHITTY, J.-It is contended by the purchasers that by virtue of section 44 of (1) 59 Law J. Rep. Q.B. 409; Law Rep. 25 Q.B. D. 262. (2) 41 Law J. Rep. Bankr. 18; Law Rep. 7 Ch. 185. (3) 63 Law J. Rep. Q.B. 806; Law Rep. [1894] 2 Q.B. 393. (4) 61 Law J. Rep. Chanc. 323, 495; Law Rep. [1892] 2 Ch. 138. (5) 48 Law J. Rep. Bankr. 29; Law Rep. 9 Ch. D. 252. (6) 50 Law J. Rep. Chanc. 789; Law Rep. 17 Ch. D. 759. to introduce any such further limitation. The language of the Court of Appeal is large enough to include all property. It is certainly large enough to include chattel interests in land. I consider that I ought to apply it to such interests. IN RE CLAYTON AND BARCLAY'S CONTRACT. the Bankruptcy Act, 1883, read in connection with sections 54 and 168, the interest in the term granted to the bankrupt passed eo instanti to his trustee in bankruptcy. On the other hand, it is argued by the vendors that the decision of the Court of Appeal in Cohen v. Mitchell (1) applies, and that the property does not vest in the trustee till he intervenes. In Cohen v. Mitchell (1) the Court of Appeal, after deliberation, laid down the law respecting the after-acquired property of a bankrupt in these words: "Until the trustee intervenes, all transactions by a bankrupt after his bankruptcy with any person dealing with him bona fide and for value in respect of his after-acquired property, whether with or without knowledge of the bankruptcy, are valid against the trustee." I had to consider in the case of In re The New Land Development Association and Fagence (4) the question whether the Court of Appeal intended to apply this proposition to real estate, and, for reasons that I then gave, I held that real estate was not within the view of the Court of Appeal when it laid down that proposition. It seems that what I thus held has met with the approval of the Court of Appeal when brought before it in the same case of In re The New Land Development Association and Fagence (4). The present case, however, is not a case of a freehold interest in land. It is a case of a chattel interest subject to onerous covenants. If the purchasers are right, mortgages by the bankrupt, even if made the day after he got the leases, would have conferred no title on the mortgagees. If, on the other hand, the proposition of the Court of Appeal applies, it being clear that the trustee has not intervened, nor does he desire now to intervene, the question is whether I ought to read in another exception to the proposition of the Court of Appeal-namely, an exception of a chattel interest in land. Possibly some of the reasons I have given in In re The New Land Development Association and Fagence (4) may apply with somewhat diminished force to the case of a chattel interest. But I have to consider whether any such reasons will justify me in introducing a further limitation to the general proposition laid down by the Court of Appeal. It appears to me that I ought not I can see various inconveniences which may arise if I hold that the proposition does not apply. I will not go into them, but will merely say that it is not at all clear that the disclaimer section- that is, section 55 of the Bankruptcy Act, 1883applies at all to the case of after-acquired leaseholds. It is clear that some of its provisions do not apply-such, for instance, as the limitation of the right to disclaim to a period of three months after the trustee's first appointment. It would be a strange thing, if after-acquired leasehold property vested eo instanti without intervention, according to the purchasers' argument, that the trustee should have no power given him under section 55 to disclaim such property. I merely mention the point, without expressing any opinion. The result is that, as the trustee had not intervened when the mortgage was made, the mortgagees acquired a good title as against the trustee. The trustee has not only not intervened, but is ready if necessary to join, to shew he consents to the sale. This will remove any possible question as to the fact of non-intervention. The deed of assignment may properly contain some words to that effect if the purchasers desire it. Then the purchasers say the title is too doubtful to be forced on them. But this is not a question of the construction of a private document or a doubtful statute. The Court of Appeal had the question before it and decided it; and this Court does not consider a title doubtful when the Court of Appeal has given an opinion in its favour. Solicitors-Beaumont & Son; Irvine, Hodges & Borrowman. [Reported by H. F. Amedroz, Esq., Barrister-at-Law. holders-Balance on Revenue AccountArrears of Dividends-Word "profits"Capital Income. On the liquidation of a company accounts were made up shewing a considerable balance to the credit of the revenue account in respect of profits earned prior to the liquidation. The preference shareholders, whose dividends were in arrear, claimed payment of their arrears out of this sum before any distribution thereof in repayment of capital amongst the holders of ordinary shares :-Held, that the preference shareholders were entitled to be paid their arrears of dividends out of so much of the assets as represented profits earned up to the date of the liquidation. The sum in question did not the less represent profits because it was undivided at the date of the liquidation. The Smyrna and Cassaba Railway Company (Limited) was incorporated on the 9th of May, 1864, with the object of making and working a railway from Smyrna to Cassaba in Asia Minor. The following clause of the memorandum of association is material: "5. The capital of the company is 800,000l., divided into 40,000 shares of 201. each. A portion of this capital, not exceeding 14,000 shares, shall have the right of receiving a dividend by preference and priority over the other 26,000 shares. "The shares of the first description are called preference shares, and those of the second ordinary shares. "The preference shares shall have right "1st. To a dividend of seven per cent. per annum upon the amount paid up by preference and priority over the ordinary shares. "2nd. To one-fifth of the remainder of the net revenue after deduction of a sum sufficient for paying a like dividend of seven per cent. on the ordinary shares." The following of the articles of association of the company are material: "Article 5. The shares shall be of two descriptions, nominative and to bearer. They shall be also of two classes, preference and ordinary, in conformity with article 5 of the memorandum of association. The maximum number of the first shall be 14,000, and of the second 26,000, but both may be nominative or to bearer." "Article 6. Each share shall give the right to a proportionate part of the property and profits of the company." "Article 59. The balance-sheet shall be made up to the 31st of December and the 30th of June in each year, and shall contain a true account of the capital, credits, and properties belonging to the company, and the debts, gains, and losses of the company which may have arisen in the course of the preceding half-year, and shall shew the balance remaining after payment of all expenses of maintenance and working of the railway, which shall be designated the net revenue." "Article 88. The capital of the company shall never contribute to form a dividend except during the construction of the works, as provided by article 80." "Article 93. The concession from the Ottoman Government having terminated, the funds arising out of the liquidation of the company's affairs from disposable funds conformably to the clauses of the said concession, shall be employed before any division among the shareholders in the discharge of the obligations which the company may have contracted, and subject thereto shall be divided amongst such shareholders rateably." There were issued 6,250 preference shares of 201. each, and 19,687 ordinary shares of 201. each, all of which were credited as fully paid up. The plaintiff was the holder of eighty preference shares. On the 16th of July, 1894, a resolution that the company should be wound up voluntarily was duly confirmed, and Mr. O. C. Waterfield was appointed liquidator; and on the 26th of July the company sold and transferred its undertaking (in consideration of 1,436,000l.) to a syndicate formed for the purpose of founding an Ottoman company to work the railway. There was in arrear on the preference shares one year's dividend, due on the 31st of December, 1893, and a further dividend from the 1st of January, 1894, |