1856. THIS ALEXANDER v. ALEXANDER. was an appeal from the decree of the ViceChancellor Stuart on motion for a decree upon Nov. 10. Before The Lord Chan cellor LORD his will gave certain por tions of his property to one of his daughters and the construction of the will and codicil of General CRANWORTH. Dallas. The General by his will after making a sche- A testator by dule of his real and personal estate gave certain portions thereof, charged with certain legacies and annuities, to his daughter Janet the wife of William J. Alexander and her children, and the residue, which was the greatest her children share, and also charged with certain legacies, to his daughter Dona the wife of F. Harding and her children. By a codicil the testator expressed himself thus :-" In consequence of the difficulty of getting 3007. for Captain F. Harding (which he must pay from what I leave him in my will) from the 3,000l. I settled on his family and I obliged (a) to become guarantee for his repaying of it I now cancel that part of my will settling on my daughters and their children my property, and my sons in law Captain my property F. Harding and William J. Alexander may dispose of the property I leave for the good of their families, subject to the said legacies." and the residue which was the greater portion to another daughter and her children. By a codicil he said "I cancel that part of my will settling on my daughters and their children and my sons in law H. and A. may dis pose of the property I leave for the families:" Held that the sons in law took absolute interests in the When the case was heard before Vice-Chancellor good of their Stuart, his Honor held that no trust was created by the codicil in favour of the testator's daughters and their children and that F. Harding and W. J. Alexander took equal absolute interests as tenants in common in portions given by the will to the property subject to the payment of the legacies. F. their respecHarding now appealed to the Lord Chancellor from that tive wives. portion of the decree which declared that the gift to him- Mr. 1856. ALEXANDER v. ALEXANDER. Mr. Malins and R. R. A. Hawkins appeared for the Plaintiffs the trustees, but took no part in the argument. Mr. Walker and Mr. Webster for Captain F. Harding in support of the appeal. The testator has by his will given his property in unequal shares and there is no evidence of intention in the codicil to alter that inequality. It is a well established principle that a revoking clause in a codicil is not to have a more extended signification than what is necessary for effectuating the intention of a testator, in short that a codicil is only to be construed as an auxiliary instrument; Leacroft v. Maynard(a), Matthews v. Bowman (b), Beckett v. Harden (c), Young v. Hassard (d), Plenty v. West (e), Shea v. Boschetti (f), Molyneux v. Rose (g). Mr. Wigram and Mr. Udney for Mr. Alexander in support of the Vice-Chancellor's decision. The will only contains specific bequests of specific property. Can it be said that if the testator had left considerably more property that the codicil would not have operated? There was clearly an equality intended in the gifts to the sons in law as provisions for the testator's two daughters, Jolliffe v. East (h); and the codicil cannot be regarded as merely substitutionary; Holder v. Howell (i), Cole v. Wade (k). Mr. Walker in reply. The LORD CHANCELLOR. I entertain a different opinion from that expressed by the Vice-Chancellor in this case which does not appear (a) 1 Ves. jun. 279; S. C. 3 Bro. C. C. 233. (b) 3 Anst. 727. (c) 4 M. & S. 1. (d) 1 Dru. & War. 638. (f) 18 Beav. 321. (h) 3 Bro. C. C. 25. (i) 8 Ves. 97. (k) 16 Ves. 27. to It 1856. ALEXANDER v. to have been fully argued before him. I arrive at the conclusion that the sons in law of the testator were under the codicil to take absolute powers of disposition over nothing more than what was given to the testator's daugh- ALEXANDER. ters by his will. It is exceedingly difficult in construing wills couched in such loose language to understand the meaning, but I think that the testator did not by his codicil intend to alter the quantity of the estates which by his will he had intended for his daughters respectively, but only to substitute a disposition which would give an absolute power of disposal over the same estates to the husbands of his daughters. [His Lordship here read the will and codicil and proceeded]:-I think the expression in the codicil "the property I leave for the good of their families" means the same thing as if he had said the property I leave in manner aforesaid. is true that the expression "the property I leave," &c. might be construed so as to apply to any other property he might leave irrespective of that which he had specified. I need not however speculate as to what would have been the consequence if such a state of circumstances had existed, nor do I think it would be applying a philosophical or logical method of interpretation to speculate on the result of a state of circumstances which might have arisen but which the testator never contemplated would arise. Assuming then that by the words "the property I leave," &c. the same subject matter is intended as by the words "my property" in the preceding sentence in the codicil, there is no necessity to resort to any such doctrine as that of a tenancy in common. In addition to this it is to be observed that by the will there are unequal charges on the shares of each of the daughters. The decree must be varied by declaring that the sons in law took absolute interests in the portions of the property given by the will to their respective wives. 1856. Nov. 14, 17, 19. Lord Chan cellor LORD an insolvent debtor who had taken the benefit of the Act 5 & 6 Vict. THE WEARING v. ELLIS. Before The THE bill in this suit was filed by J. Wearing the devisee of John Harrison an insolvent for the purCRANWORTH. pose of obtaining a reconveyance of certain real estate The devisee of which had once belonged to the insolvent under the following circumstances. John Harrison became insolvent in February 1843, and filed his petition in the Leeds district Court of Bankruptcy for protection as an insolvent debtor under the Act 5 & 6 Vict. c. 116, and the usual order was thereupon made vesting his estate and effects real and personal in E. Young as the Official Assignee. At the time of the insolvency J. Harrison was entitled to certain real estate in fee simple in reversion expectant on the death of his mother. c. 116, and who had obtained a release in full from all his creditors :Held entitled to sustain a bill in equity in respect of surplus real property, which had been con Official Assignee, without going through the process of applying to the Insolvent Court for an In 1844 all the creditors of J. Harrison accepted a veyed by the composition of 3s. 6d. in the pound and executed a release in full. The sum required for the composition was advanced by the Plaintiff with the aid of J. Cowburn a solicitor. In 1846 and in consideration of that advance and before the reversionary interest fell into possession the Official Assignee arranged with the Plaintiff that the reversionary interest should be conveyed by assignee of the the Official Assignee to the Plaintiff as a security for his advance and subject thereto for the insolvent J. Harrison. This conveyance (whether by accident or otherwise is immaterial for the purposes on which the decision in this case is reported) was made to J. Cowburn instead of to the Plaintiff. order re-vest ing the property in the insolvent. In the following year (1847) the reversionary interest fell fell into possession and J. Harrison then entered into possession and enjoyed the premises during his life. He died in 1819 and devised the estate to the Plaintiff. In 1854 a question was raised on the part of Cowburn that he was bonâ fide and beneficially entitled to the estate but he subsequently became insolvent; and his assignee put up the property for sale when the Defendant Ellis became the purchaser. The object of the bill, which inter alia charged that all the creditors of J. Harrison were satisfied and had executed a release, was to obtain a declaration that by the conveyance of 1846 Cowburn was not entitled to any beneficial interest in the premises but was a trustee of the legal estate in trust for J. Harrison. The Defendant insisted that until an order had been obtained from the Insolvent Court revesting the estate in Harrison the Plaintiff as his devisee had no title to sue. The question came on before the Vice-Chancellor Stuart on the 16th January 1856 on motion for a decree when his Honor held that there being an admitted surplus there was a virtual end of the insolvency and decided in favour of the Plaintiff's right to sustain the bill. From that decree the Defendant now appealed to the Lord Chancellor. Mr. Wigram and Mr. Toller for the Plaintiff in support of the decree of the Vice-Chancellor. The question is what is the status of an insolvent debtor after all his debts are paid We will admit for the purpose of the argument that when the property remains in the Official Assignee it would be necessary to get the estate revested in the insolvent, yet where as in the present case the Official Assignee has duly devested himself of the legal estate for value and conveyed his right and interest therein it is absurd to obtain a revesting order. In the Vol. VI. RR D. M.G. authorities 1856. WEARING v. ELLIS. |