LEGACY-to infant: charge on real estate of per- cumulative or substituted: two codicils: re- In construing a will, nothing contained in a letter construction of legacy: ambiguous description was entitled. And Held, further, that evidence tenant for life and remainderman: con- to married woman for separate use with- See Ademption. Interest. Will. LIMITATIONS, STATUTE OF-acknowledgment]-In 1846 L. gave B. and S. a promissory note for 500l. The note was made payable three months after date to "D. F. B. or S. M., his wife." In 1866, after the death of B., and on the application of S. M., L. wrote his name, and the date 1866, on the back of the note:-Held, a sufficient acknowledgment within the above statute; and that the debt, therefore, was not barred. Bourdin v. Greenwood, 73 interest on legacy: class: presumption of death]-Testator gave a fund to his executrix for her life, subject to the immediate payment thereout of a legacy to be divided amongst the children of W. P., to whom he also gave the fund after the death of the executrix. He died in 1847. One of W. P.'s children, of whom there had been five, was last heard of in 1845. The executrix, M. W., retained one-fifth of the legacy. She became lunatic in 1851, whereupon the fund was carried to an account entitled "the account of M. W. and the children of W. P.," and the income of the whole was applied for the benefit of the lunatic. To a petition presented in 1871 by the four surviving children, for payment of the fifth share, which remained unpaid out of the fund, and for the payment of the interest thereon out of another fund belonging absolutely to the lunatic, it was objected that the Statute of Limitations was a bar:--Held, that the Statute was no bar to the claim for the principal, but was a bar to the claim for more than six years' interest. Re Walker, 219 mortgage in form of trust for sale: express trust: possession of cestui que trust: posNEW SERIES, 41.-INDEX, Chane. session of trustee] - Between 1822 and 1828 A. executed several deeds of mortgage and further charge to B. by way of demise for terms of years to secure loans. By deed dated 11th of February, 1829, in consideration of a sum of 5607. then advanced by B., and the other moneys owing on the previous mortgages, A., at the request of B., conveyed the estates comprised in the previous mortgages and other estates to C. in fee upon trust, in case of repayment of the 5607. on the 11th of August then next, and of the other moneys then charged on the property, to reconvey the same to A., his heirs or assigns. But in default of payment, upon trust that C. should enter into possession of the property, and at his sole authority sell the same, and hold the sale moneys, upon trust, after paying off the sums owing to B., and a sum of 180l. to another incumbrancer, to pay the surplus unto A., his executors, administrators or assigns. That deed did not assign the terms. B. entered into possession in 1832, and continued in possession till his death in 1860. He devised the property to the defendants in trust for sale, and they had remained in possession ever since. C. accepted and acted in the trusts: -Held, on bill filed by the heir-at-law of A. against the devisee of B. that the deed of 1829 vested the property in C. upon an express trust within section 25 of the Statute of Limitations, that B. could not set up the terms, and that the possession of B. was the possession of C., his trustee, and that consequently the right of the heir at-law of A. was not barred by section 28 of the statute. Locking v. Parker, 544 LOCKE KING'S ACT-interest in land: conversion: mortgage: exoneration]-B., entitled under a deed of 1831 to a share in real estate directed to be sold, mortgaged it, having by his will specifically given it to C. By the same will he gave all his residuary estate and effects to trustees upon trust, "for payment thereout of all my just debts subject thereto for L.":Held, that Locke King's Act and the Amendment Act only apply to an interest in land taken as land, and that this property having been converted in equity, did not come within those Acts, and that C. was entitled to have it exonerated from the mortgage debt out of the residuary personal estate. Lewis v. Lewis, 195 Semble, the Amendment Act, 30 & 31 Vict. c. 69, applies where there is a general direction for payment of debts, out of real and personal estate. Quære, whether Locke King's Act applies to leaseholds. Ibid. LUNACY-French Lunacy. See Trust and Trustee, And see Jurisdiction. Married woman. C MARINE INSURANCE-misrepresentation: mortgage: evidence: arbitration]-A shipowner stated in a proposal for insurance that his ship had been last metalled in 1867. The bottom was then overhauled, and new metal put where required: -Held, that he had not made a material misstatement so as to vitiate the policy. Alexander v. Campbell, 478 A rule of a Mutual Marine Insurance Association provided that in case of a mortgage or assignment of any vessel insured in the association, the mortgagee must make himself personally liable to pay premiums:-Held, that the rule did not affect an assignment of a policy. Ibid. The above rule was not set up as a defence by answer-Held, that at the hearing a certificate of the ship's register could not be produced to shew that there was a mortgage of the ship itself. Ibid. The rules of a Marine Insurance Association provided that disputes should be referred to arbitration:-Held, that the assured was not bound to submit a legal point to the decision of arbitration before suing in equity. Ibid. unstamped policy: winding up: admission of debt: claim by policy holder allowed] — A ship was insured in 1863 by M. in a Mutual Marine Insurance Association. The policy, which was unstamped, was renewed up to 1868, when the ship, with M. on board, was lost at sea. The money due in respect of the insurance was collected by order of the Association, according to their usual practice, from the members liable to contribute the same, but was retained by the secretary until a personal representative to M. should have been appointed. Before any such appointment was made the association was ordered to be wound up. Subsequently M.'s widow took out administration to him, and brought in a claim in the winding up under the policy. A portion of the amount due under the policy had already been paid to persons having a lien thereon:-Held, that the relation of debtor and creditor had been sufficiently established between the parties, and the widow was entitled to recover the amount, notwithstanding the want of a stamp on the policy. In re The Teignmouth and General Mutual Shipping Association, 679 MARRIAGE ACT-evidence: trustee: costs]- In the register of a marriage which was solemnized in 1842, only secondary Christian names of both husband and wife appeared. The wife was dead. The husband deposed that he had given incomplete names for the sake of brevity: -Held, that there was no evidence to shew that the marriage had been celebrated "without due publication of banns." Gompertz v. Kensit, 382 A trustee refused to join his co-trustee in suing to recover trust property, and put in an answer. He was disallowed costs. Ibid. MARRIAGE SETTLEMENT-ultimate limitation" unto the legal representatives of the wife in a due course of administration:" wife's next-of-kin entitled]-By an ante-nuptial settlement real and personal estate was vested in trustees, upon trust for sale and investment of the proceeds; and after the marriage, for payment of the income to the husband and wife during their joint lives, and the life of the survivor, and then for the benefit of the children and issue of the wife, as she should by deed appoint, and in default for her children and issue. If there were no children of the marriage, the whole of the trust moneys and premises were to be held by the trustees upon trust for such person and persons as the wife should, notwithstanding any coverture by deed or will, appoint; and in default of appointment, then "upon trust to pay or transfer the said trust moneys and premises unto the legal representatives of the wife in a due course of administration: "-Held, on demurrer, that the words "legal representatives in a due course of administration," denoted the next-of-kin of the wife according to the statutes, and not the husband. Briggs v. Upton, 33 -affirmed on appeal, page 519 construction as to vesting of trust funds: divesting clause: eldest son] - By a marriage settlement a sum of stock was settled, subject to the husband's and wife's life interests therein, upon trusts for the children and issue of the marriage (except an eldest son entitled to certain settled estates) as the husband and wife, or the survivor of them, should appoint, and in default of appointment, for the children (except as aforesaid) in equal shares, the shares of sons to be vested at twenty-one, of daughters at twenty-one or marriage, and it was provided that if the husband should die in his wife's lifetime, leaving an only child a son, such son should be entitled to the whole trust fund, but if the wife should survive the husband, and there should be only two children or only one child (except as aforesaid) who should attain twenty-one or marry, such two only children or one only child (except as aforesaid) should not 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. Carter v. Ducie, 153 Semble, that if it had been otherwise, the invalidity of the charge would have been sufficient to dis place the claim of the husband's representative. Ibid. trust for "next of kin" of settlor]-In a marriage settlement (the intended wife being an infant) the husband covenanted that one half of the wife's personal and of the proceeds of her real property when sold, should be settled upon trust for himself for life, then for her for her life, and then, in default of issue, upon trust for her next of kin. The property was duly vested in the trustees. The husband died, and there was no issue of the marriage:-Held, that the trust for the next of kin was not binding against the wife, and that she had absolute power to deal with the trust funds. Gibbs v. Grady, 163 divorce: property of wife]-By a marriage settlement property of the wife was settled upon her for life for her separate use, and after her decease, in case there should be no issue of the marriage and her husband should survive, upon trust for her next of kin, with power for her to appoint by will part of the property, and in case she should survive, then for her absolutely. The marriage having been dissolved on the petition of the wife, and there being no issue of the marriage, a bill was filed by her in her maiden name against her former husband and the trustees of the settlement:-Held, that she was absolutely entitled to the property. Fussell v. Dowding, 716 MARRIED WOMAN separate estate: power to devise]-A married woman may, by a deed duly acknowledged, to which her husband is a party, acquire a power to dispose by will of her real estates. Pride v. Bubb, 105 pauper lunatic: past and future maintenance: separate property]-Accrued and future dividends of a fund settled on a married woman for her life for her separate use, without power of anticipation, were ordered to be paid to the officer charged with the care of lunatics in the Colony of Victoria to provide for her past and future maintenance as a pauper lunatic in the colony. Re Baker's Trusts, 162 See Partition. Leases and Sales of Settled Estates Act. MARSHALLING. See Administration of Estate. Mortgage. METROPOLIS LOCAL MANAGEMENT AMENDMENT ACT-building beyond general line: summons: occupier: builder: commission of offence: time]-Where there is a known "owner or occupier," the proper person to proceed against for an infringement of the 75th section of the Metropolis Local Management Amendment Act (25 & 26 Viet. c. 102) is such owner or occupier, and not "the builder," and a summons upon the builder is only valid whilst he is engaged in the work. Brutton v. The Vestry of St. George, Hanover Square, 134 The offence, six months after the commission or discovery of which complaint is, under the 107th section of the same Act, to be made, is committed when first an intrusion is made upon the general line of building, and the time begins to run from the day such intrusion is discovered. Ibid. Accordingly, where a vestry having on the 25th of August discovered that an owner of a house had on the 24th of August put up the framework of a conservatory which intruded on the space beyond the general line, and was finished on the 23rd of September, but such vestry, not having received the certificate of the superintending architect until the 2nd of the following March, took no step till the 4th of March, when they issued a summons against the builder, who had in the meantime been paid, and had gone abroad,-Held, upon a bill filed by the occupier to restrain demolition, first,-That the summons was issued against the wrong person; Ibid. secondly, That it was out of time. "vacant ground" being the site of buildings recently pulled down: jurisdiction of the CourtThe "vacant ground" mentioned in sect. 75 of the Metropolis Management Amendment Act, 1872, does not include ground which is the site of buildings recently pulled down, and the section therefore is inapplicable to such ground. Auckland v. The Westminster Local Board of Works, 723 Some houses were taken by a railway company under their powers, and were pulled down by the company in the course of constructing their line. The site was afterwards sold by the company as building ground:-Held, that the Metropolitan Board of Works had no power under section 75 to restrict the purchaser from covering the whole site of the former houses with buildings. Ibid. The Court will exercise jurisdiction in such a case notwithstanding the statutory powers to apply to a magistrate. Ibid. Semble, That if any control is to be exercised over such building, it must be under the 74th section. Ibid. METROPOLITAN COMMONS ACT. See Injunction. MINERALS-china clay]-The grantor of land reserved the "minerals within and under" the lands granted, "together with liberty of ingress, egress, and regress into and out of the said several premises and every part thereof, with or without horses, carts and carriages, to dig, search for and to take, use and work the said excepted mines and minerals:-Held, affirming one of the Vice-Chancellors-page 293, that the reservation included china clay, but overruling in this respect the Vice-Chancellor that the priority: reconveyance procured by fraud: notice]-D., a second mortgagee, with a power of sale, was fraudulently induced by his confidential solicitor to join with the first mortgagee in executing a conveyance upon a pretended sale to the solicitor, and to sign a receipt for the purchase money; but no money was paid to him, the solicitor representing that it was a mere matter of form, and that the mortgages would remain as before. The solicitor afterwards deposited the deeds with C. by way of equitable mortgage:--Held, affirming the decision of the Court below, that D. having by his negligence enabled the solicitor to commit the fraud, C.'s equitable mortgage was entitled to priority. Hunter v. Walters; Curling v. Walters; Darnell v. Hunter, 175 A mortgagee advancing money on the security of a considerable estate, and omitting to investigate the title to a particular portion of it, will not be affected with notice of equities affecting the residue of the estate, which upon such investigation he might possibly have discovered. Ibid. with power of sale: transfer with new power: reservation of old powers and remedies: effect of recitals]-A mortgage-deed, dated the 15th of June, 1825, contained a covenant to pay the mortgage debt twelve months after date, with a power of sale in case of default. A transfer of the mortgage, dated the 2nd of July, 1830, recited that the old power of sale had not been and was not intended to be exercised, and contained a covenant to pay the mortgage debt seven years after that date, with a power of sale in case of default, and also assigned the debt and all powers and remedies for recovering the same and all the benefit of the previous mortgage:--Held (reversing the decision of the MASTER OF THE ROLLS), that the old power was not extinguished. Boyd v. Petrie, 378 marshalling: consolidation: sale of policy] -A mortgagee of a life estate and policies of assurance had also obtained subsequent judgments, being charges under 1 & 2 Vict. c. 110, on the life estate. There were intervening incumbrances on the life estate only. On his first mortgage being discharged out of the life estate,-Held, that the next incumbrancer was entitled, on the principle of marshalling, to be paid out of the policies, and that the first mortgagee could not by consolidating his securities throw his subsequent charges on the policies so as to prevent this. Ford v. Tynte, 758 Where there are no funds to keep up mortgaged policies of insurance, the mortgagee has a right to have them sold. Ibid. See Executor. Jurisdiction. Locke King's Act. Parish Rates. MORTGAGOR AND MORTGAGEE. See Specific Performance. MORTGAGORS' COSTS. See Interest. MORTMAIN-bequest in aid of erecting or of endowing an additional church at A.: mixed personalty]-A testatrix bequeathed her residuary personal estate to trustees upon trust to be by them applied in aid of erecting or of endowing an additional church at A. There was no additional church in course of erection or intended to be erected at the date of the will or at the testatrix's death:-Held, reversing the decision of one of the Vice-Chancellors, that the intentions of the testatrix were not confined to a church in course of erection or contemplated at the date of the will or at the death of the testatrix, and an enquiry was directed whether the bequest, or any and what part thereof, could be laid out and employed as directed by the will. Sinnett v. Herbert, 388 A bequest for building or endowing a church is not void under the statute of mortmain, because the trustee having an option may apply the whole fund for endowment Girdlestone v. Creed, 10 Hare, 480, distinguished. Ibid. Gift supported under the 43 Geo. 3. c. 108 to the extent of 5001. out of the mixed personalty. Ibid. gift to charity, some of the objects of which are within the Act and some not: payment of legacy duty out of impure personalty: costs of next-of-kin unsuccessfully opposing charitable bequest]-Testator bequeathed pure personalty to an existing charity whose funds might be applied at the discretion of the trustees in any of various objects, some of which were within the Act of 9 Geo. 2. c. 36, and some not-Held, that the legacy was valid. Wilkinson v. Barber, 721 Testator directed that the duty on the charitable legacies should be paid out of impure personalty-Held, that this direction was invalid. Ibid. The next of kin who unsuccessfully opposed the charitable legacies applied for their costs as between solicitor and client on the authority of Carter v. Green (3 Kay & J. 591):-Held, that they were only entitled to costs as between party and party. Ibid. See Charity. |