wills might be attested was null and void, under statute 25 Geo. 2. c. 6; but the attesting witnesses were not disqualified from proving as witnesses the due execution of the testamentary instru ment. The existing statute, keeping in view the principle of public policy which is obviously involved in the former law, has extended its operation. [His Honour read the 15th section of statute 1 Vict. c. 21.] The plaintiff's claim in the present suit is founded upon the provisions of that section. The bill, which is filed by H. I. B. Anderson, states the will of his mother Hannah Anderson, dated the 10th December, 1868, by which she disposed of the whole of her property in favour of several of her children, and among them of her son George, but not making any disposition in favour of or mentioning the name of the plaintiff. To this will, Hannah Anderson, who was and is the wife of the testatrix's son George, was one of the attesting witnesses. The bill, alleging this fact, insists that all the bequests and dispositions purporting to be contained in the will in favour of George Anderson are consequently null and void, and that the shares and interests in the real and personal estate of the testatrix, so purporting to be bequeathed or disposed of in his favour, have devolved, as undisposed of, to the heir at law and next-of-kin respectively of the testatrix. And the bill prayed for a declaration to the same effect, and for such enquiries as would be properly consequent upon such declaration if made. The facts are admitted by the defendant George Anderson, to whom probate of the will and of a codicil subsequently executed by the testatrix have been duly granted by the Court of Probate as executor. And it appears that the testatrix made a codicil dated the 22nd of January, 1869, by which, after directing her executors to allow to her son Thomas an extended time for the payment of what might be owing to her from him, "she confirmed her said will in other respects,' and this codicil was duly executed in the presence of two witnesses. Upon this state of facts, the plaintiff has contended that the provision of the NEW SERIES, 41.-CHANO. statute to which I have referred applies in direct terms, and that by the effect of it all such interest as George Anderson would have taken under the will is forfeited, and that the testatrix must be held to have died intestate as to so much of her estate as George Anderson would have taken according to the tenor of the will, if his wife had not been one of the attesting witnesses. The defendant, on the other hand, insists that the will and codicil together form one and but one testamentary instrument; that the object and effect of the codicil was to repeat and confirm the bequests contained in the will; that its operation was to incorporate the will with the codicil, and that the latter instrument having been duly executed by the testatrix and attested by unobjectionable witnesses, neither the letter nor the spirit of the statute are infringed, that all the requirements of the law are complied with, and that there is no foundation for the plaintiff's suit. Now in order to decide the point thus raised, the first question to be solved is, what is the will of the testatrix. The statute (sec. 9) enacts that "No will shall be valid unless it be in writing signed or acknowledged by the testator in the presence of and attested by two witnesses." If the codicil in question can be held to be the will of the testator these requisites are complied with. In the course of the argument reference was made to several cases, the most important and the most recent of which was Allen v. Maddock (1). In that case, the testatrix having made what purported to be a will dated in December, 1851, but attested by one witness only, afterwards, in September, 1856, executed a testamentary paper which was duly attested and which commenced with the words, "This is a codicil to my last will and testament." testament." The Court of Probate being satisfied that the instrument of 1851 was the will which the testatrix referred to in the codicil decreed probate of the two papers as together constituting the will of the testatrix, and it was from that decision that the appeal to the Privy (1) 11 Moore P.C. 427. 2 K Council was brought. The argument in that case principally turned upon the question, whether the codicil had sufficiently identified the paper of 1851, and it was contended that parol evidence of that fact upon which the Court below had proceeded, was inadmissible for the purpose of proving such identity. No such point exists in the present case, because the two papers, will and codicil, having been together admitted to probate, the identity of the will mentioned in the testatrix's codicil must be taken to be established. The Privy Council decided that the parol evidence was admissible, and that it proved satisfactorily the identity of the paper referred to in the codicil, but the greater value of this most valuable judgment is, that it decided in very express terms and by reference to numerous authorities as well before as since the statute of wills, that the due execution by a testator of a codicil amounts to a republication of a former will, and that, without any regard to the fact whether or not the paper so referred to complied with the requirements of the law as to the attestation or execution of such papers. And referring to the attestations introduced by the existing statute, it pronounces that thereby the ceremonies necessary to authenticate the instrument are altered, but no alteration is made in the effect to be given to words used in it. It would seem that a paper which would have been incorporated in a will executed according to the "Statute of Frauds " must now be incorporated in a will executed according to the new Act; and their Lordships referring to the case of Croker v. The Marquis of Hertford (ubi supra), point out and adopt the distinction to be made since the new Act with respect to the unattested papers referred to, the identity of which was not clearly proved. With these authorities the law is too clear to admit of any doubt upon the single question raised. [His Honour read the 24th and 34th sections of the Wills Act. The 24th section enacts that 'every will shall be construed with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator." The 34th section provides, that "every will re-executed or re-published, or revived by any codicil, shall, for the purposes of this Act, be deemed to have been made at the time at which the same shall be so re-executed, re-published, or revived."] It was much pressed in the argument on the part of the plaintiff, that the very existence of the will could not be proved except by the persons who had attested it, and therefore that the will which the statute sought to prevent, would be admitted, unless the legacy in question were declared to be forfeited. I do not know, and have no right to enquire, upon what consideration the Court of Probate decided. But I am clearly of opinion, that there is no reason to apprehend, that by treating the codicil duly attested as a republication or confirmation of the will, any relaxation of the wholesome provision of the 15th section would be effected. That in the execution and attestation of the codicil in question all the requisites of the statute were complied with is clear. None of the evils which the statute intended to prevent can arise, and it would be as much beyond the provisions and the contemplation of the statute as it would be opposed to good sense and reason, to hold that the codicil duly executed and attested had not the effect of republishing the will and making it a new and original disposition by the testatrix, in January, 1869, of the estate which she has dealt with by the will of December, 1868. To hold otherwise would be, to hold that any error in a will once duly executed could not be corrected but by an entirely new will, for which proposition there is no authority. It cannot be said that the testatrix could not by her codicil have made a new will if she had been so minded. Suppose that by the codicil she had said, I am aware that my will is so erroneously attested as that my son's legacy will be forfeited, and to prevent that I execute this codicil, and do hereby confirm my will. There can be no doubt that she was competent to do this up to the latest Company Directors-Fraudulent Use of Power-Payments in Advance of CallsAdvances by Directors-Directors' Fees― Delusive Contrivance. The directors of a company by the articles of association were empowered to receive payments in advance of calls, and were to be paid a certain amount for their fees. The company fell into a state of utter insolvency, and the directors knowing this, in order to get rid of their liability on shares not fully paid up held by them, passed a resolution authorising any director to pay calls in advance. Under this resolution the directors from time to time paid to the account of the company large sums purporting to be advances on calls, and immediately afterwards they drew against these sums for their fees. The company was afterwards wound up. Upon a summons by the official liquidator to enforce a second payment of the calls purported to have been paid under this arrangement:-Held, that the arrangement being a contrivance only for the benefit of the directors could not stand, that the pretended payments in anticipation of calls were invalid, and that the calls must be enforced. This was an adjourned summons on the part of the official liquidator of the abovenamed company, that a call to the amount of 221. per share might be made on Col. William Henry Sykes, late chairman of the directors of the company, in respect of twenty-five shares held by him in the company. The above-named company was incorporated in January, 1864, under the Companies Act, 1862, as a company with limited liability, having for its object the construction and working of certain railways in Central Europe and other cognate purposes. The nominal capital of the company was 1,400,000l. The first issue of the capital was 700,000. in 17,500 shares of, 401. each. The articles of association contained the following provisions : (Article 35.) "The board may, if they think fit, receive from any of the shareholders willing to advance the same, all or any part of the amounts of their respective shares beyond the sums actually called for, and upon the moneys so paid in advance, or upon so much thereof as from time to time exceeds the amount of the calls then made upon and due in respect of the shares on account of which such advances are made, the board may pay or allow interest at such rate as the shareholder paying the sum in advance and the directors agree upon." (Article 89.) "The directors shall be entitled to set apart and receive for their remuneration in each and every year, commencing from the 1st day of January, 1864, the minimum sum of 3,000l. Such annual sum may be from time to time increased by the resolution of any general meeting. The money so allowed shall be divided among the directors as they may from time to time determine." The company shortly after its formation commenced the construction of the intended railway, and entered into contracts involving very large liabilities in respect thereof. In the year 1865, and before the month of September in that year, the company had fallen into very considerable financial embarrassment, and in the month of September aforesaid was in a critical condition. On the 29th of September, 1865, the company's general purposes committee, which consisted of certain of the directors of the company chosen by the board, resolved that any director might pay his calls in advance under the 35th of the articles of association, and a form of receipt for such payment was drawn up. This resolution was shortly afterwards con firmed at a meeting of the board by a resolution merely confirming the minutes of the meeting of the general purposes committee, and not setting out the purport of the above stated resolution of the committee. Mr. Young, the late secretary of the company, who was called as a witness on Col. Sykes' behalf, was cross-examined on behalf of the official liquidator and stated as follows: "I believe that what led to this resolution was that the directors wanted to get their fees, and that as there was not enough money to pay them, the directors determined to avail themselves of the 35th clause of the articles. They said that as they could not get their fees they might as well get rid of their liability as shareholders, and this was the whole object of the resolution. The resolution was confirmed at a subsequent meeting of the board on the 6th of October, 1865, when Col. Sykes was in the chair and signed the board minutes. I cannot say at this distance of time whether anything was said at this meeting as to the company being in a critical position, but the directors knew how its affairs stood." . . . “I knew on the 6th of October, 1865, that the company could not meet its engagements, and this fact was perfectly well known to the directors, including Col. Sykes, who was present at nearly all the meetings of the board, and took a very active part in the company's affairs." appeared from Mr. Young's affidavits that the liabilities of the company at this time were over 180,0007. He stated that previously to October, 1865, there had been some legal proceedings against the company, but that these had been disposed of. These proceedings included two or three petitions by creditors for winding up the company, and other proceedings by creditors. For some time previously to the date of the said resolution being passed, a sheriff's officer had been in possession of the company's furniture at their office in London. It On the 22nd of December, 1865, a meeting of the creditors of the company was held, which was adjourned to the third week in January, 1866, it being agreed that all legal proceedings should be stayed in the meantime. Mr. Young stated that he considered the company's financial embarrassments began so far back as April, 1865. At the same time, whilst admitting that the company had no funds available to meet its engagements, he stated that there were very large arrears of calls upon shareholders remaining unpaid, besides an uncalled amount of nearly 265,000l., which would be available, if paid, to meet the company's liabilities. Col. Sykes (who had previously paid 3401. on account of calls in respect of his twenty-five shares in the company) on "the 2nd of October, 1865, in pursuance of the above-mentioned resolution, paid to the company's account at their bankers 1257. in anticipation of calls on his shares, and in January, February, April, May, June, July, and August, 1866, he paid several further sums of various amounts in anticipation of calls, making altogether 5901. 158. 7d., in addition to the 3401. before mentioned, paid by him on account of his shares. During the whole period between the end of December, 1865, and the middle of August, 1866, the directors pursued a course of dealing in accordance with their intention as deposed to by Mr. Young. They from time to time paid to the company's account various sums in anticipation of calls on their shares, and immediately afterwards drew cheques against such payments on account of their fees and the salaries of the officers of the company. The following are some of the instances of this course of dealing stated by the affidavit of the official liquidator. On the 29th of December, 1865, the balance standing to the credit of the company at their bankers was 417. 15s. 11d. On the same day at a meeting of the board cheques were drawn for payment of directors' fees and clerks' salaries to the amount of 9831. 6s. 8d. On the 29th and 30th of December cheques to the amount of 5051. were paid to the account of the company at their bankers by Messrs. Cave, Walford, and Propert, three of the directors, in advance of calls upon the shares held by them. On the same 30th of December cheques upon the account of the company at the bank to the amount of On 5721. 48. 8d. were presented for payment by Messrs. Cave, Walford, and Propert, and a clerk of the company. On that day the account of the company at the bank was overdrawn by 251. 8s. 9d. On the 1st of January, 1866, cheques to the amount of 300l. were paid to the company's account at the bank. On the 2nd of January 2231. was paid out upon cheques drawn in favour of two of the directors in payment of their fees. the 23rd of February, 1866, the balance at the bank in favour of the company was 1717. 118. On the same day 500l. was paid into the bank on account of the company by their solicitors, and 3327. 11s. was paid into the bank on the same account by Col. Sykes and Messrs. Walford and Cave, making the whole balance in favour of the company 1,004l. 2s. On the same day cheques to the amount of 1,1427. 178. 2d. were drawn on the account of the company at the bank for payment of directors' fees and officers' salaries. The course of dealing indicated by these instances was continued till nearly the end of August, 1866. During the months of July and August, 1866, Col. Sykes and other directors of the company paid into the bank to the account of the company various sums amounting to 4501. 198. 10d. as in advance of calls, and they drew out in payment of their fees as directors 5631. 138. 3d. On the 16th of August the Oriental Financial Corporation, who were creditors of the company to a large amount, and on whose petition the company was subsequently wound up, gave to the company a formal notice of demand for payment of their debt. On the 17th of August a meeting of the creditors of the company was called and a committee appointed. On the 28th of August, 1866, an arrangement was entered into between the Oriental Financial Corporation and the company, whereby it was agreed that the fees of the directors of the company should be withdrawn from that date without prejudice to any question as to their former fees, which were alleged to have been irregularly retained. On the 15th of February, 1867, Col. Sykes resigned the office of director. The company was ordered to be wound up on the 20th of January, 1868. On the 18th of May, 1870, the claims and debts of the company, including the estimated costs of the winding up, amounted to about 169,4701., the available assets to rather more than 8,000l., leaving a sum of about 161,300l. requisite for satisfying the company's liabilities. Mr. Kay and Mr. Bardswell, for the official liquidator, appeared in support of the summons. They argued that the arrangement sanctioned and acted upon by the directors was in violation of their duty towards the other shareholders, and could not stand. The directors had no power to set off the amount due to them for fees against calls- In re Overend, Gurney & Co.; Gris- On the same principle the directors in this, case could not prefer their own debts to those of other creditors. Mr. Eddis and Mr. R. Hughes, for Col. Sykes. The directors had acted within the power expressly given to them. The evidence shewed that the company was not insolvent, but its difficulties arose from the impossibility of at once realising its assets. Mr. Kay replied. BACON, V.C.-The question on this summons, I conceive, must really be decided upon the terms of the articles of association, with this principle to guide the construction of these articles, that it is the plain duty of directors, who are trustees of a company, to deal in all matters of business with which the company is concerned, for the benefit of the company, and not with regard to their own particular interests. Now, the 89th article does not contemplate any periodical payments. [His Honour read it.] What bearing has that upon the construction which is now called in question? It is proved by the company's own witnesses, and by Col. Sykes' witnesses, that the company were at that time in pecuniary difficulties, and the directors all knew it perfectly well. They knew that at that time the company could not meet its engagements, and Col. Sykes knew it per |