be entitled to any part of the trust fund, but it should go to the husband absolutely as in that event such two children or one child (except as aforesaid) were otherwise provided for by a deed of even date creating a charge upon the settled real estates. There were two children of the marriage, a son who died an infant and a daughter who married, and became, on her brother's death, entitled to the settled estates. The wife survived the husband. The deed purporting to create a charge upon the settled estates, turned out to be invalid :—Held, upon the construction of the settlement, and without resting the decision upon the invalidity of the charge, that the daughter took an absolutely vested interest in the trust fund, and that it did not go to the husband's representative. Semble, that if it had been otherwise, the invalidity of the charge would have been sufficient to displace the claim of the husband's representative. This was a suit instituted for the purpose of determining who was entitled to a certain sum of Consols, subject to the trusts of the marriage settlement of Mr. and Lady Julia Langston, dated the 6th of July, 1824. The facts of the case are sufficiently set forth in the judgment. Mr. Willcock and Mr. W. W. Karslake appeared for the plaintiffs. Mr. Kay and Mr. Speed, for the Earl and Countess of Ducie. Mr. Eddis and Mr. Kekewich, for Mr. Langston's executors. The following cases were cited: Collingwood v. Stanhope, 38 Law J. Macoubrey v. Jones, 2 Kay & J. 684; BACON, V.C., without calling for a reply, said. This suit is instituted by two out of four trustees of a sum of 34,2861. 7s. 5d. 3 per cent. Consols, for the purpose of having it declared by this Court who is entitled to that sum. The defendants are the other two trustees of the fund (who are also the legal personal representatives of the late James Haughton Langston) and Julia, Countess of Ducie, who claims to be absolutely entitled to it. The fund in its origin consisted of a sum of 5,000l. advanced by the late Lord Ducie on the marriage of his daughter, Julia Frances Moreton, with the late Mr. Langston-and of a sum which Mr. Langston engaged to provide of an amount sufficient to produce, when invested in 3 per cent. Consols together with the 5,000l., the yearly income of 1,0007. These sums were duly paid and now stand invested in the names of the trustees. The marriage took place on the 6th of July, 1824, when the settlements out of which the question arises, were executed. In order to approach the solution of that question, it will be convenient to state the facts bearing upon it. They appear to be these. At the time of the marriage, Mr. Langston, the husband, was tenant in tail in possession of what are called the Sarsden estates, which he derived under the will of his father, and which were held by him subject to the provisions of that will. There was issue of the marriage two children only, the defendant, Lady Ducie, who was married to the present Earl in May, 1849, and a son named Algernon Langston, who died in the year 1850, in the ninth year of his age. Mr. James H. Langston died in October, 1863, leaving his widow and his only surviving child, now Lady Ducie, and in June, 1869, Lady Julia Langston died. The defendant, Lady Ducie, having become tenant in tail in remainder of the Sarsden estates, they were resettled in January, 1852, by a deed mentioned in the pleadings, but to which it is unnecessary further to refer. The question to be decided is, who is entitled to the trust fund of 34,2811. 7s. 5d. Consols? First, it is claimed by the Earl of Ducie in right of his wife. Secondly, Mr. Langston's executor claims it as part of the personal estate of his testator, and thirdly, the Countess of Ducie, as the administratrix of her mother, Lady Julia Langston, alleges that if she and her husband are not entitled to the whole of the trust fund, the sum of 5,361. 18s. 8d., part of the trust fund (being so much thereof as was purchased with the sum of 5,000l., paid by Thomas, late Lord Ducie) forms part of the settlement estate of Lady Julia Langston. The settlement upon the construction of which these questions must be determined is dated the 5th of July, 1824. After providing for the life interest of the husband and wife in the fund, it was declared that from and immediately after the death of the survivor of them, the trustees should stand possessed of the trust fund, "upon trust for all and every, or such one or more, exclusively of the other or others, of the child or children of the said James Haughton Langston, by the said Julia Frances Moreton (except an eldest or only son, who for the time being should be entitled in possession, or in remainder expectant on the decease of the said James Haughton Langton, to the settled estates of the said James Haughton Langston), or for all and every, or such one or more exclusively, of the other or others of the issue (born in the lifetime of the said James Haughton Langston and Julia Frances Moreton, or the survivor of them), of any one or more such child or children (except an eldest or only son for the time being entitled as aforesaid), or for all and every, or such one or more, exclusively of the other or others, of the said child or children, and all and every, or such one or more, exclusively of the other or others, of their or any of their issue born as aforesaid (except as aforesaid), at such times or time (not more remote than twenty-one years after the decease of the survivor of them the said James Haughton Langston and Julia Frances Moreton), as they the said James Haughton Langston and Julia Frances Moreton, or the survivor of them, should by deed or the will of the survivor appoint, and in default of appointment, among such children (except as aforesaid), in equal shares, the shares of sons to be vested at twenty-one, and those of daughters at that age or marriage, such marriage to be with the consent of their parents or guardians." So far, therefore, it is clear that, as the events happened, the defendant, Lady Dacie, took upon her marriage a vested interest in the whole fund (her brother, then an infant, being the eldest son of the marriage), subject to the powers of appointment, none of which were at any time exercised. The settlement further declares that every part or share of the trust fund which might be appointed to, or in favour of, any son of the marriage who should die under the age of twenty-one, or who under that age should become an eldest or only son and so entitled to the settled estates as aforesaid, and also every part or share of the trust fund which might be appointed to or in favour of any daughter of the marriage who should die under the age of twenty-one, and unmarried, should be taken and considered as if no such appointment had been made, except so far as such part or share should have been actually expended for the benefit of such son or daughter. The settlement then provides that if there should be more than one child for whom portions were intended to be thereby provided, and any of them being a son or sons should die under the age of twenty-one, or become an eldest or only son under that age and so entitled as aforesaid, or being a daughter or daughters should die under that age and unmarried, then the share intended to be thereby provided for each such son so dying or becoming an eldest or only son, and for each such daughter so dying, or so much thereof as should not have been paid or applied for the preferment or advancement of any such son or sons, should go, accrue, and belong to the survivors or survivor of such children (not being an eldest or only son as aforesaid), and (so far as circumstances would admit) should vest in and be transferred to him, her, or them, if more than one, in equal shares, at the same time and in the same manner as thereinbefore declared, concerning his, her, or their original shares, and in case more than one such son should die or become an eldest or only son as aforesaid under the age of twenty-one, or more than one such daughter should de under that age and unmarried, then, and so often as the same should happen, all and every the surviving or accruing shares or share of such last mentioned child or children so dying in the trust fund, or in such part thereof as should not have been ap plied for his, her, or their preferment or advancement should again accrue to the survivors or survivor of the children (not being an eldest or only son as aforesaid), and so far as circumstances would permit, should vest in and be transferred to him, her, or them respectively, as was thereinbefore declared concerning his, her, or their original shares. The settlement further provides that in case there should not be any child of the marriage who should obtain a vested interest, and the husband should survive the wife, the whole of the fund should be held in trust for him absolutely, but in case the husband should die in the lifetime of his wife, "leaving an only child, and such child shall be a son," then in trust for such only child. It is then further provided that if the husband shall die in the wife's lifetime, and there shall not be any child who shall acquire a vested interest, then so much of the fund as had been provided by the husband should go to his personal representatives, and that the other part of the fund should be held in trust for the wife. Then follows a proviso which has created such difficulty as exists in the case. Provided always, and it is hereby declared that in case the said Julia Frances Moreton shall survive the said James Haughton Langston, and there shall be only two children of the said intended marriage (other than and except an eldest or only son so entitled as aforesaid), or only one child of the said intended marriage (other than and except as aforesaid), who being a son or sons shall live to attain the age of twenty-one years, or being a daughter or daughters shall live to attain that age, or be married with such cousent as aforesaid, then and in such case such two only children (other than and except as aforesaid), or such one only child (other than and except as aforesaid), shall not have or be entitled to any part or share of the said 3 per Cent. Consolidated Bank Annuities, either by virtue of any appointment to be made in their, his, or her favour, or otherwise howsoever, but in the event of the said Julia Frances Moreton surviving the said James Haughton Langston, and there being only two such children, or only one such child (other than and except as aforesaid), the said James Haughton Langston shall (subject to the life estate of the said Julia Frances Moreton) have and be absolutely entitled to the said 3 per Cent. Consolidated Bank Annuities for his own use and benefit, as in the event of the said Julia Frances Morton surviving the said James Haughton Langston, and there being only two such children, or only one such child as aforesaid (other than and except as aforesaid), such two children, or such only child, are provided for by a certain other indenture or deed of settlement bearing date herewith." In It is upon this proviso that an argument has been submitted by the personal representatives of Mr. Langston, to the effect that they are entitled to the fund as a part of his personal estate. Now, considering the entire scope and effect of the settlement, I think it would be impossible to arrive at such a conclusion without doing violence to the plain intention of the parties, to be gathered from the terms of the deed. For it is abundantly clear that it is only in one event that Mr. Langston or his representative was to be entitled to receive back the amount which he had contributed to the settlement fund, viz., if at the time of his death in his wife's lifetime there should not be any child who should acquire a vested interest in the fund. case of his death, leaving an only child, and such child should be a son, that child would take the fund absolutely. So, although it is true, as has been suggested, that the general principle observed in framing settlements made in such circumstances as here appear, is that the estates and the money should be subject to different provisions, the full effect of the instrument cannot for that reason be disregarded. Nor is it possible to adopt that literal construction of the proviso which has been contended for, since the proviso expresses the reason for which it was introduced, and it is clear, upon examining the documents, that no such reason existed. The ground upon which an attempt is made in the proviso lastly quoted, to withdraw the provision for younger children, is stated to be that such children were provided for by an other deed of even date. That deed is stated in the bill, and thereby Mr. Langston purported to charge the Sarsden estates devised to him by the will of his father with portions for his younger children. But it seems that this charge was ineffectual, the power to charge contained in the deed of the 6th of August, 1835, executed under the direction of the Court (after a litigation respecting the father's will), and by which the devised. estates were settled, containing no such power as Mr. Langston supposed he possessed when he executed the deed of 1824. Although it is not necessary to rest the decision of this case upon the ground last mentioned, it is obvious that it has a close bearing upon the question raised, and would probably be sufficient if it were necessary to resort to it to displace the claim made by Mr. Langston's representatives. The interest given to the children of the marriage is expressed in clear, full and unambiguous terms. The trusts of the settlement fund are declared to be, subject to the life interests of the parents, for the children of the marriage (except an eldest or only son, who for the time being should be entitled in possession or in remainder expectant on the decease of the said James H. Langston to the settled estates), an interest vested at the respective ages of twenty-one years, or in the case of daughters at marriage. The period at which the rights of the parties are to be ascertained has been well and conclusively settled to be that at which the fund becomes distributable under the trusts. When that period arrived, Lady Ducie was the only person entitled to a vested interest, and unless something is to be found on the settlement to destroy or qualify that vested interest, her right appears to me to be unquestionable. The rule that an estate once vested is not to be divested but by plain express words, is forcibly expressed by Lord Cairns in the case of Collingarood v. Stanhope (supra), thus: "When once you have got an estate vested, you cannot divest it without the concurrence to the letter of the terms and conditions upon which the estate is to be divested." It was suggested during the argument that within rules which the Court has sometimes adopted in construing marriage settlements, it would not be unreasonable to hold that Lady Ducie, who has undoubtedly inherited the settled estates, was to be considered as an eldest or only son. I do not think that I have any warranty for so changing the words of the instrument before me, nor if I could do so would it assist the case of the representatives of Mr. Langston, since it is clear that if there had been but one child, and he a son, he would be entitled to the settlement fund, as well as to the settled estates. I am therefore of opinion that the decree should declare that the defendant, Julia, Countess of Ducie, is entitled to the whole amount of 3 per Cent. Consols mentioned in the prayer, and the dividends due thereon since the death of her mother, and order the transfer and payment accordingly. Solicitors-Messrs. Harrison, Finch & Jennings, for all parties interested. BACON, V.C. 1871. Nov. 16, 18. In re THE UNITED PORTS AND GENERAL INSUR- Company-Contributory-Sale of Business to another Company-Ultra Vires— Contract to take Shares-Communication of Allotment. B. Company with limited liability, carrying on the business of marine insurance only, and having no power to sell its business, entered into an agreement with P. Company, being an unlimited company, and carrying on business of life, fire, and marine insurance, for the transfer of its business to that company, in consideration of a sum of money, and of so many shares in P. Company to be issued to members of B. Company. In order to carry out this agreement, B. Company was wound up voluntarily under an order of the Court, and the sanction of the Court was obtained to the agreement. Letters were sent by the manager of P. Company to the shareholders of B. Company, asking them to exchange their shares in B. Company for shares in P. Company in pursuance of the agreement, and enclosing forms of application for shares in P. Company :— Held, that shareholders of B. Company, who signed and returned such forms of application to the manager of P. Company, had entered into a binding contract to take shares in that company, notwithstanding they had received no notice of allotment of the shares. Held, too, that the agreement for the amalgamation between the two companies having been sanctioned by the Court under the winding up of B. Company, was not ultra vires, and therefore not invalid. This was an application by adjourned summons, on behalf of the official liquidator of the above named company, to settle the names of Messrs. Brown and Tucker on the list of contributories to the company. The Bristol Marine Insurance Company was duly incorporated on the 1st of January, 1864, as a company, with limited liability under the provisions of the Companies Act, 1862. The objects of the company were to carry on the business of marine insurance, and to advance moneys upon ships, and property connected with shipping. The capital was 500,0001. in 25,000 shares of 201. each. By the articles of association, the directors were empowered to effect "the amalgamation with, or purchase or acquisition (upon such terms as they might think fit) of the business and property of, any association, company, partnership, person or persons, carrying on any business included in the objects of that company as specified in the memorandum of association, and the payment for the same either in cash or in shares," or in such other manner as they should think expedient. The United Ports and General Insurance Company was incorporated on the 24th of October, 1868, under the provisions of the Companies Act, 1862, as a joint stock company with unlimited liability. The objects of that company were to carry on in Great Britain or elsewhere, the businesses of fire insurance, life insurance, and marine insurance, in all their branches, and (amongst other things) to amalgamate with, purchase, or otherwise acquire the businesses of any underwriters and insurers, and to grant annuities, endowments, and loans. The capital of the company was stated to be 500,0007. in 500,000 shares of 11. each. Previously to the incorporation of the Ports Company, negotiations had been. entered into by its promoters for the purchase of the business of the Bristol Company. These negotiations resulted in an agreement between the two companies, dated the 6th of March, 1869, whereby the Ports Company agreed to purchase of the Bristol Company all their business and goodwill, together with their risks and liabilities, as they existed on the 29th of September, 1868. The purchase money was to be 15,000l.; 5,000l. part thereof to be paid in cash, and 10,000l. (the remaining part) in 10,000 shares of 11. each, fully paid up, of the Ports Company, such 10,000l. to be issued and to be entered in the books of the Ports Company, and the certificates thereof to be delivered to such persons as the Bristol Company should direct; and the Ports Company agreed, as from the 30th of September, 1868, to undertake the risks and liabilities of the Bristol Company, and it was thereby agreed that in aid of that agreement, and to facilitate and assure its being carried out, the Bristol Company should be voluntarily wound up. In pursuance of the said agreement, special resolutions were passed at general meetings of the Bristol Company for the voluntary winding up of that company. By an order of the Court of Chancery, dated 11th of June, 1869, the voluntary winding up was ordered to be continued under the supervision of the Court, and the sanction of the Court was given in formal terms to the said agreement for the amalgamation of the two companies. Shortly after the execution of the said agreement, printed forms of application for shares in the Ports Company in exchange for shares in the Bristol Company were sent to the several shareholders of the Bristol Company. Such forms were as follows "Shareholders' form of application for |