« PreviousContinue »
exception conferred by the Statute of Frauds, s. 8. See the cases THE LAW OF GIFTS INTER VIVOS.
collected in Lewin on Trusts, chap. ix. III.
It should, perhaps, be added that in Sayre v. Hughes (5 Eq.,
at p. 382) Stuart, V.C., says: “Being a transfer of stock it Purchase in the name of a child—(Continued).—The Married was not like paying money down and taking a conveyance in the Woman's Property Act, 1882, provides (section 21) that “a married name of the daughter; the difference is not very great, yet it is woman having separate property shall be subject to all such something." liability for the maintenance of her children and grandchildren as Gift distinguished from sale.—There is a broad distinction the husband is now by law subject to for the maintenance of his between a gift and an assignment for value. In the former case children and grandchildren. In cases falling within the Act, the the nature of the transaction depends entirely on the will of the rule stated ante, p. 701, " that a transfer to, or a purchase by a donor; and if he has done something wbich appears to, but which, mother in the name of, a child does not amount to a gift in the on strict examination, does not, amount to a gift, it is tolerably absence of evidence that a gift was intended,” requires some modifi- certain that, although he may have at one time intended to make a cation.
gift, the gift is imperfect; he changed his mind; he did not carry Assuming the doctrine laid down by Jessel, M.R., in Bennet v. his intention into effect. On the other hand, where the transacBennet (10 Ch. D., at p. 476, cited ante, p. 701) to be correct, the tion is for value, and for some reason the assignment of the proreason wby a purchase by a father in the name of a child amounts | perty is imperfect, we have to consider the intentions of two persons prima facie to a gift is that the father is under a legal obligation to —the person who purports to make and the person who accepts the provide for his child, and that a purchase by him in the dame of assignment; and if, on consideration of all the circumstances, it his child will, in the absence of evidence to the contrary, be taken appears that both parties intended that a perfect assignment should to be made for the purpose of discharging that obligation. Apply be made, a court of equity will compel the assignor to do anything ing this principle to a transfer to, or a purchase in the name of, that is necessary to perfect the assignment. her child, made by a married woman after the commencement of This distinction between a gift and an assignment for value is of the Married Woman's Property Act, 1882, of or with property | primary importance. The reader who has thoroughly grasped it with wbich she is able to deal without her husband's assent, it will find but little difficulty in understanding the decisions, puzzling would seem that such a transfer or purchase will amount, in the though they appear to be at first sight. These decisions lead to the absence of evidence to the contrary, to a gift to the child. We are cardinal rule, that "an incomplete voluntary gift creates no right not aware, however, of any decision on the subject.
that can be enforced.” In other words, “No person can be comTransfer as distinguished from purchase of realty.—The question pelled to perfect a gift which in the mode of making he has left whether the rules, given in the preceding article, apply to a transfer imperfect; there is a locus penitentiæ so long as it is incomplete": of real property by the owner to another person, as distinguished Antrobus v. Smith (12 Ves. 39); Edwards v. Jones (1 Myl. & Cr. from a purchase in the name of the latter, is one of some nicety, 226. See Lyte v. Peny (Dyer, 49a), where a man bailed to and has given rise to a difference of judicial opinion. The answer another a sum of money to the use and behoof of a woman, and to to this question depends upon the question whether, since deliver it to her on the day of marriage, and countermanded i the Statute of Frauds, any trust can be implied in favour of before the marriage. the person who conveys real estate to another without con The real difficulty arises in determining whether that which hae sideration. Lord Hardwicke says, in Lloyd v. Spillet (2 Atk., at been done amounts to a complete transfer of the property, and, if it P. 150):
bound by the Statute of Frauds' to does, with what motive was the transfer made? It should, howconstrue nothing a resulting trust but what are there called trusts ever, be remarked that where the equitable ownership is completely by operation of law: and what are those ? Why, first, where an transferred the donee is in the ordinary position of a cestui que estate is purchased in the name of one person but the money or trust, and that whether the donor or a stranger is the legal owner. consideration is given by another; or, secondly, where a trust is Where the donor remains the legal owner he can only transfer the deciared only as to part and nothing said as to the rest, what equitable ownership by constituting himself a trustee. The quesremains undisposed of results to the heir-at-law, and they tion, therefore, that arises in cases of this nature is whether he has [sic] cannot be said to be trustees for the residue Again, he done so; and it will be found that where he has ineffectually pays (Young v. Peachy, 2 Atk., at p. 256): “It might be said in attempted to transfer his legal ownership and has not expressly Every case where a voluntary conveyance is made that a trust shall constituted himself a trustee the donee takes nothing. arise by implication ; but that is by no means the rule of the court; There is a well-known rule of construction that, where an trusts by implication or operation of law arise in such cases where instrument fails to take effect in the manner intended, it will, if one person pays the purchase-money and the conveyance is taken possible, be construed so as to take effect in some other manner in the name of another, or in some other cases of that kind; but which will carry the expressed general intention of the parties the rule is by no means_80 large as to extend to every voluntary into effect : see this discussed E. N. & C. on Interpretation, p. conveyance.
James, L.J., says in Fowkes v. Pascoe (10 Ch., 40, et seq. The reader who understands the principle above laid at p. 348): "I will assume that the implication of a resulting down will be prepared to learn that this rule does not apply to an trust does arise as much in the case of a transfer as in the purchase instrument purporting to make a gift ; however clearly the intenof stock, although that certainly is not the case with respect to a tion of the donor to make a gift, whether of the entire or the conveyance of land.”
beneficial interest, may be expressed, still, if he has not traneIt must be observed that the Statute of Frauds (29 Car. 2, c. 3, ferred the legal or the equitable ownership, as the case may be, 8. 8) exempts all declarations or creations of truste of lands, or has not constituted himself a trustee, the gift fails. tenements, or hereditaments, which arise or are transferred or The principles that we have stated are laid down very clearly extinguished by implication or operation of law, from the operation by Turner, LJ, in his judgment in Milroy v. Lord (4 De G. F. & arises by operation of law in favour of a person who makes a settled that, in order to render a voluntary settlement valid and voluntary conveyance of hereditaments to another, as, if this is the effectual, the settlor must have done everything which, according case, the statute does not apply.
to the nature of the property comprised in the settlement, was It is a well-known rule that if A. conveys land to B. in fee necessary to be done in order to transfer the property and render simple by a conveyance operating at common law, and there is no the settlement binding upon him. He may, of course, do this by consideration and no declaration of uses, there is a resulting use to actually transferring the property to the persons for whom he also 1 Preston Est. 190. Bearing in mind that a use and a trusł will be equally effectual if he transfers the property to a trustee are the same thing, except that it is usual to confine the word for the purposes of the settlement, or declares that he himself Statute of Uses, it appears that where an absolute Fransfer of land sopal, the trust may, as I apprehend, be declared either in writing absence of special circumstances, a resulting trust for the pereon or other of these modes must, as I understand the law of this court, conveying, and, if this view is correct, the care falls within the be resorted to, for there is no equity in this court to perfect an
714 imperfect gift. The cases, I think, go further to this extent, that,
CUSTOMS AND INLAND REVENUE ACT, if the settlement is intended to be effetuated by one of the modes to which I have referred, the court will not give effect to it by 50 & 51 VICT. C. 15. -AN ACT TO GRANT CERTAIN DUTIES OF CUSTOMS
AND INLAND REVENUE, TO ALTER OTHER DUTIES, AND TO AMEND applying another of those modes. If it is intended to take effect
THE LAWS RELATING TO INLAND REVENUE. by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would The present Act, in addition to imposing certain tea, tobacco, and
income tax duties, contains one or two provisions of special importance. be made effectual by being converted into a perfect trust.”
After two sections reducing to 1d. the duty on sea policies in cases “The principle is a very simple one. A man may transfer his where the premium does not exceed 28. 6d. and limiting to ten days property, without valuable consideration, in one of two ways: he the period within which a sea policy made out of the United Kingdom may either do such acts as amount in law to a conveyance or may be stamped after execution without penalty, ten sections provide, assignment of the property, and thus completely divest himself of with considerable elaboration, for the imposition of a new duty on the the legal ownership, in which case the person who by those acts transfer of the debenture stock or funded debt of any company or acquires the property takes it beneficially or on trust, as the case corporation, and, what is more important, for the composition of the may be; or the legal owner of the property may, by one or other duty by the bodies concerned, thus allowing any company to place of the modes recognized as amounting to a valid declaration of upon its whole body of shareholders the burden of the duty which in
strict justice ought to fall upon transferors and transferees. It is trust, constitute himself a trustee, and, without an actual transfer understood that these enactments, which like all Inland Revenue Acts of the legal title, may so deal with the property as to deprive came into force on the 5th of July, when the Act received the Royal himself of the beneficial ownership, and declare that he will hold Assent, have caused considerable excitement and annoyance on the it from that time forward on trust for some other person. It is Stock Exchange, and not unnaturally, for section 7, incorporating by true that he need not use the words 'I declare myself a trustee,' reference a portion of the Stamp Act, 1870, raises the duty in the but he must do something which is equivalent to it, and use
case of debenture stock from 28. 6d. on the nominal value of the stock expressions which have that meaning; for, however anxious th
transferred to "the same ad valorem duty" as is charged by that Act court may be to carry out a man's intention, it is not at liberty to to the amount or value of the consideration for the sale.” The
upon a conveyance or transfer on sale of other property by relation construe such words otherwise than according to their proper schedule of the Act of 1870 tit. “conveyance" gives a long scale of meaning ": per Jessel, M.R., in Richards v. Delbridge (18 Eq., duties, from which we gather for example that the duty on the transat p. 14).
fer on £100 Debenture Stock at par will be raised from 28. 6d. to 10s.
The terms of composition are fixed at sixpence for every hundred
pounds of the whole "shares, stock, and funded debt of the com-
pounding body (sections 7, 8, 9, 10), but composition, it is hardly
necessary to state, is not compulsory. It is merely provided (section 50 VICT. SESS. 2, c. 9.-AN ACT TO REMOVE THE DISABILITIES OF 9) that " any company or corporation may agree with the CommisTHE POLICE TO VOTE AT PARLIAMENTARY ELECTIONS.
sioners of Inland Revenue, if the commissioners in their discretion think Peers and women are disqualified from voting at Parliamentary | Upon such an account being delivered, the duty becomes chargeable
proper, for the delivery of an account of their shares and stock. elections by the common law, but not constables. The disqualifica- upon the amount appearing from it (section 8), while by section 12 tion of constables is purely statutory, and has not been for a long any company or corporation not delivering an account as agreed, of time in operation. It was first imposed by Sir Robert Peel in 1829, failing to pay the duty " in conformity with the Act,” is liable to the in his well-known Act establishing the Metropolitan Police, which the example thus set was followed in two later Acts as to counties which such peglect shall continue.”. By section 15, upon the account derives from him its two familiar names (10 Geo. 4, c. 44, 8. 18), and very heavy penalty of ten pounds per cent. on the amount of duty
payable, and a like penalty for every month after the first month during and borough police (2 & 3 Vict. c. 93, s. 9, and 19 & 20 Vict. c. 20, 8, 9). being rendered and duty being paid, transfers of any shares or stock The preamble to the present Act recites the inexpediency of such a included in the account become exempt from duty, but by section 16 disqualification, and the operative part boldly repeals portions of the the compounding bodies are enabled to recoup themselves for what above-mentioned and other less important enactments (seven in all) they have paid by way of composition by levying additional fęes in having a similar effect. It is material to bear in mind that only addition to any fee exigible upon registration of any transfer” as to portions of these enactments are repealed, and that certain un
which fees, see sections 15 and 47 of the Companies Clauses Act, repealed portions, following a common form, prohibit the police from 1845, relating to registration of transfers and bonds respectively, and canvassing, and also, except in the case of the Metropolitan Police, authorizing fees as prescribed in the special Act, or, if no fee be prefrom voting at municipal elections. A further section provides for scribe 1, then 2s. 6d. for each registration, but it is, perhaps, doubtful the case of a constable " who is, or who is likely to be, on the day of whether section 47, which applies to bonds, would, without some conany election, sent or employed in the discharge of his duty so as to necting link in the special Act, apply also to debenture stock. Seca would otherwise by®law be entitled to vote.” Such a constable may that each compounding body will, in justice to its shareholders of obtain a certificate from the chief constable stating the fact with constituents, put the section in force. particulars, and the presiding officer at any polling station is to allow him to vote at such station, upon the production of the certi- ) pounding enactments is to be found in the Metropolitan Board of
It only remains to point out that the germ of these stamp-comficate, which he is forthwith to cancel, and " deal with in Works Loans Act, 1870 (33 & 34 Vict c. 24), ss. 3 and 4, and in the the same manner as the counterfoils of voting - papers directed by law to be dealt with” -as to which detail rule 29 enactment applies to municipal loans only under the Local Loans
are Inland Revenue Act, 1850 (43 & 44 Vict. c. 20), s. 53, which later of schedule II. of the Ballot Act, 1872, should be consulted. This Act, 1878. The provisions of 1880 are, by section 14 of the present enabling provision might possibly, even in the case of the most law- Act, to be no longer in force as to stock issued after the passing of abiding set of citizens, tempt a man to vote early and vote often, so the Act, and the provisions of 1870 are likewise to cease after the Ist Corrupt Practices Prevention Act, 1883, s. 6, sub-section 2, by which very numerous loans contracted before those dates –a highly incomo
of August next, but will still have to be consulted in respect of the personation is felony punishable by two years' imprisonment, with venient arrangement, which it may become next to impossible to It is also provided that temporary absence on duty for not more than. carry out by reason of the two sets of loans becoming blended in four months shall not cause a break of the continuous inhabitant Act, 1869), the stockholders having no priorities, there has been occupancy" required as a qualification for the franchise (as to which keeping of separate account in respect of successive parcels borsee section 3 of the Representation of the People Act, 1867, and Ford v. Barnes (15 Q. B. D. 254) ).
rowed. Such is the Police Disabilities Removal Act, 1887–a statute which that contained in the 18th section as to the income tax of agri
Another, and the only remaining, important provision of the Act is "explains itself” less than any statute of recent years, which is say- culturists. This section provides that it shall be lawful for any hibitions in the repealed Acts are against voting, not against being to be assessed to the duties of income tax chargeable under schedule registered, registration is in all cases, by virtue of section 7 of the D., and in accordance with the rules of thať schedule, in lieu of that a constable wrongly registered in past years becomes entitled to signified by notice to the surveyor of taxes for the district within two yote at once by virtue of the present Act.
months after the commencement of the year of assessment, so that
Aug. 27, 1887.
attended with due publicity, and repeated annually, does not produce a claimant proving a superior right. The operation of the first-named registration would appear to be a mere notice to the
world that, say, A. B. claims to be the fee simple owner of a certain CORRESPONDENCE.
estate ; but then his title would require the ordinary examination the
same as hitherto. This process of registration of the possessory title THE TRANSFER OF LAND BILL, 1887.
is to be repeated as often as the property changes hands by sale. I [To the Editor of the Solicitors' Journal.]
say by sale, for there does not appear to be any provision requiring Sir, -The Bill is suspended until next session. Happily a breathing possessory title is, therefore, not apparent, except so far as it leads
the registration of a mortgage. The advantage of obtaining a mere time is obtained, and it will be well if the proposed alterations receive up to the acquisition of what is termed an absolute title. Having more careful consideration than they appear to have hitherto had. obtained his possessory title, the owner might, by a prescribed pro, The scheme of registration seems, unfortunately, to be accepted pretty cess, after a tedious waiting for five years, procure what the Bill generally as inevitable; and this merely because it is brought forward calls an “absolute title.” The expression is misleading, since the by the Lord Chancellor, and may therefore be regarded as a Govern- title does not amount to an indefeasible one. Under section 13, subment measur ; but the objections of those most capable of judging section 5, a registered proprietor would have to pay compensation to of the practical effect of what is proposed deserve more than a careless examination. The report on the Bill issued by the Council 20, sub-section 1, compensation out of the insurance fund would be
any person deprived of any interest in the land; and, under section of the Incorporated Law Society shows that the measure is regarded | paid to any person for loss arising “from an entry in the register with much disfavour by that very competent representative body; obtained by forgery or fraud, or from any error on the part of the and it may be taken that there is not a law society throughout the Land Transfer Board, or its officers, or from any of the other matters provinces which views the proposal otherwise than with repugnance. in the scheme mentioned.” Then, under section 21, a registered proMoreover, it must not be forgotten that one of the most eminent of prietor might have to give up the land itself, and be content with the Lord Chancellor's predecessors was strongly opposed to compulsory compensation from the insurance fund. It is not an easy task to registration. The late Lord Cairns, who was an exceptionally skilled reconcile these several sections; but it is clear that, under the proreal property lawyer, was decidedly of opinion that such a mode of visions of the Bill, in no case could a title, absolutely free from registration would be in the highest degree inexpedient; and indeed, attack, be procured. Consequently, registration, even with an absoin his evidence before the Committee of the House of Commons, he lute title, would not dispense with the investigation of title which is went so far as to say that its effect was " frightful to contemplate." His adverse opinion dictates that the proposed measure should receive indefeasible title can be obtained, and the certificate of registration is
required at present. Now, under the Act of 1875, an actually the most thorough examination, and not be blindly accepted, however the root of title. high the authority by whom it is introduced. There is no doubt that the Bill will be brought forward again next year, and no time should been imported into the Bill. One has to grope about from one to
It surely is a mistake that the lengthy Act of 1875 should have be lost in preparing to resist it.
The Registration Acts of 1862 and 1875 have proved absolute the other in search of light. Far better would it be if sɔ ambitious a failures. The best proof of this, perhaps, is the fact that, of the few scheme were contained in its integrity within the four corners of a
Bill. titles registered, a large proportion have actually been taken off the register. The principle bas thus been tested for more than a quarter of
The Bill, without the rules, to be issued under the proposed Act is, as a century. Having proved it to be unpalatable, a paternal Government regards registration, extremely incomplete. In fact it is but a mere steps in, and says to the nation “You do not know what is good for you. skeleton, and it gives rise to all sorts of questions. For instance, Registration is a grand thing, and whether you like it or not you will the memorandum prefixed to the Bill states that the Bill “proposes he compellel to register your deeds and wills.” It will be urged that to make registration universal.” Registration of what? Does this the previous schemes were mistakes, and that what is now offered is mean that every deed affecting land shall appear on the register? so very different, and is so undoubtedly right, that it in fact becomes Would any advantage be gained beyond what is now obtained by the duty of Government to compel its adoption. However high an registration in Middlesex and Yorkshire ? If none, is the working of opinion the promoters of the Bill may have of the proposed registration registration in those counties so conspicuously beneficial as to justify system, it cannot be demonstrated without actual experience that it the application of the system to the whole of the kingdom? On the possesses all the advantages claimed for it. Does not common sense contrary, does not experience shew that registration in those particusuggest that the new mode of registration should be left to rely on its lar counties confers no practical advantage, and only causes trouble and intrinsic merits for a period of, say, five years ? If its adoption during expense ? What is to be the mode of registration; by memorial, or the tentative period had been sufficiently general to shew that by copies of deeds and wills placed in the books of the registry?
The avowed object of the Bill is to facilitate and cheapen the compulsory.; but if such a reasonable trial be denied we shall be transfer of land. Neither of these objects would be likely to be compelled to take a leap in the dark.
obtained. It has been calculated that the number of deeds dealing It is thought by some, and the idea is a very pleasing one in theory, with land executed in England is the course of a year is some but that of course can never be. A transfer of shares in a public and numerous district registries would be required to cope with the company is the nearest approach to this simplicity of operation; but
enormous work, and the heavy expense occasioned would have to be even this transfer cannot be effected without a deed. Such deed is paid by landowners, who just now are certainly not enjoying excessimple and invariable in form, being a transfer from A. to B. in sive prosperity. It cannot be denied that registration would cause bonsideration of money paid, and without recognition of any trust; delay, and where there happened to be a pressure of work in the Intimidee des of settlement, conveyance, and mortgage,m and will, var: office, perhaps Tong delay. Prhe principal Pufferers would be smali vereister is to record all dealings with all kinds of properties through costs of purchase at present are the maximum sum of £3 and the optr England, the contemplation of such a mighty, gigantic task stamp. In the majority of the cases the title to small properties is brought to such a state of extreme simplicity that improsement insurance will become an additional expense, and to this hardship
Thanks to the admirable Act of 1991, conveyancing has been should registration become compulsory, the fees of registering and of might well be regarded as impossible : and the authorised scale of will have to be added delay.
Should the Bill pass into law the country may expect such a practitioners. The settled Land Act of 1882, by the powers conferred deluge of officialism as we have never before experienced. Great inof the tenant for life, effected a very valuable alteration, and got rid convenience would be occasioned unless the district registries are attlast to have reached a happy state of calm, withľa prospect of additional delay, trouble, and expense will be caused as to deeds settled rest, but our peace pas destined to be wohntorta prepochole coming from a distance othe publicity of the contents of deeds system of conveyancing would appear to be threatened. It is which will be inevitable, may, in many cases, be very undesirable,
710 Loss of property through fraud or mistake occurs so very seldom in his lifetime, or his executors or administrators within five years after at present that it might seem superfluous to provide for such cases. his death, would pay £10,000 to the trustees, to be held by them on the Yet insurance forms an important feature in the Bill. It would trusts of the settlement. The defendant Budgett was one of the trustees, appear as if it were apprehended that the new system would give the other trustees were two of the testator's sons, who afterwards became
The £10,000 was not paid by the testator, or by his such facilities for forgery and fraud, and that so many mistakes will two of his executors. be made by officials, that an indemnity for the sufferers must be executors within five years after his death, but was retained by them in a
business which they had carried on in partnership with the testator, and provided. The insurance system is based on the very extraordinary principle trustees, who were also executors, were liable to the plaintiffs, and the
was ultimately lost. It was admitted at the trial of the action that the two that good titles shall be made to pay for bad ones. Sound titles are main question was whether the defendant Budgett, wbo was the only in. to be made to idemnify those that prove to be tainted ! This, indeed, dependent trustee, was liable for not having taken more active steps to would be robbing Peter to pay Paul. The insurance scheme is compel payment of the trust money out of the testator's estate when it specious. It is calculated to lead the multitude, who do not take became due. He was brother-in-law to the other two trustees, and for the trouble to think for themselves, to believe that this novel pro- this reason apparently was unwilling to proceed against them, but no cess would practically render every title safe. Titles are now quite dishonesty was imputed to him. The details of the case were extremely sufficiently safe; but even were additional security to be obtained, complicated, and it would be impossible to state them within any reason. and which is doubtful, the fact remains that insurance is intended to
able length. cover the risks of a crude and arbitrary system which even tbe pro
North, J., said that it had been contended that Speight v. Gaunt had moters view with undisguised distrust; and that it is sought to make established this proposition, that a trustee was justified in dealing with landowners, whose titles are good, insurers against all sorts of fraud, a trust estate in the manner in which an ordinary prudent man of
business would deal with his own estate. This was too broad a stateforgery, and blundering; and this without the slightest resulting
ment. In Speight v. Gaunt a trustee had, for the purpose of making a benefit to themselves. If you will permit me, I may in a future letter comment on the proper investment, placed trust funds in the hands of a broker, who
applied them to his own use. Two points were considered there—(1) was amendments of the law of real property proposed by the Bill. the trustee warranted in employing an agent, instead of rying out the August 19.
J. B. transaction himself ? (2) Was he justified in banding the cash to his agent, P.S.-I am reluctant to trespass further on your space, but I instead of paying it himself to the persons giving the security. Each desire to call attention to the following statement in the memoran
question was answered affirmatively, upon the ground that a prudent man dum which precedes the Bill :
of business advancing his own money upon such a security would, in the “When a branch office for local registration has been organised in and trusted him with the money.
ordinary and regular course of business, have employed a broker
Jessel, M.R., said (22 Ch. D. a district, the Act will be applied by Order in Council, and after an 739) :
to me that on general principles a trustee appointed day every purchase of legal interests in land in that district ought to conduct the business of the trust in the will be made by means of the register.'
that an ordinary prudent man of business would conduct his own, and It is important to know the meaning of this vague statement. Is that beyond that there is no liability or obligation on the trustee. In it that it is intended that all conveyancing relating to purchases other words, a trustee is not bound because he is a trustee to conduct shall be done by the officials of the Land Transfer Board ? Such business in other than the ordinary and usual way in which similar busi
It never would appear to be the most obvious construction. If it be the ness is conducted by mankind in transactions of their own. correct one, then, indeed, a scheme of insurance against errors is of could be reasonable to make a trustee adopt further and better precauvital importance.
tions than an ordinary prudent man of business would adopt, or to conduct the business in any other way. If it were otherwise, no one would be a trustee at all. He is not paid for it." And Lord Blackburn said (9
App. Cas. 19): “The authorities cited by the late Master of the Rolls, PROBATE AND ADMINISTRATION DUTY ON ESTATES
I think, shew that, as a general rule, a trustee sufficiently discharges his UNDER £300.
duty if he takes, in managing trust affairs, all those precautions which an
ordinary prudent man of business would take in managing similar affairs [To the Editor of the Solicitors' Journal.]
of his own.
There is one exception to this : a trustee must not choose Sir,- Leaseholds form part of the assets of a small estate, and, in they may be such as an ordinary prudent man of business would select for
investments other than those which the terms of his trust permit, though arriving at their value, a mortgage debt is deducted. This brings the his own money; and it may be that, however usual it may be for a value of the estate below £300, and administration is sought under person who wishes to invest his own money, and instructs an agent, such the provisions of section 38 of the 44 Vict c. 12. The department as an attorney or a stockbroker, to seek an investment, to deposit the holds that the deduction of a mortgage debt is not permissible in money at
the agent till the investment is found, connection with a grant under that section. It is submitted, how that is in effect lending it on the agent's own personal security, and is a ever, that section 7 of 31 & 32 Vict. c. 124 lays down clearly the breach of trust.” But it was quite clear that, when those learned judges principle on which the value of leaseholds has to be ascertained for spoke, as other judges had spoken, of conducting the business of the trust, purposes of administration duty-.e., “ that the mortgage debt on
or managing trust affairs, as a prudent man would manage his own con• such. leasehold may be deducted from the value of such leasehold, cerns, they were referring to cases in which the trust business was and the stamp duty shall be chargeable on the value
being done in accordance with the limitations of the trust. No one would duction therefrom the imount of such mortgage debt.
contend that a trustee might safely ignore the terms of the instrument estate, in order to obtain the benefit of that section, must be under stood, the duty of a trustee not to select investments outside the securities
Sub-section 1 of section 33 of 44 Vict. c. 12 provides that the creating the trust, so long as his disposition of the trust property was such the value of £300 without any deduction for debts or funeral ex- authorised by the trust was in conformity with, and was not an except penses. The class of debt is governed by section 28, which gives the tion to, the general rule. A trustee who invested trust funds in an power to deduct debts and funeral expenses from the value of the estate. unauthorised manner would be liable for any loss arising therefrom: Debts in this latter section could not mean mortgage debts, because however wise and safe such an investment of his own funds by a prudent mortgage debts had already been provided for by section 7 of 31 & man would have been considered ; and a trustee who neglected to call in a 32 Vict. c. 124.
sum of money, which ought to be called in at once under the terms of the It is obvious that this question is not likely to be contested by do so, however safe and prudent it might have been to leave the money
trust, would be liable for any loss which might arise from his omitting to parties applying for administration, because it affects only estates which are too poor to defend any proceedings by the department,
outstanding if it had been his own. estates which may be of considerable worth, but subject to incum- ) would have done with respect to moneys which it was his duty to proceed
It is very hard to have to pay duty on gross value of Teasehold must, therefore, be tested, not by what a prudent man would have done I shall be glad to obtain the views of your readers upon the point. this question his lordship adopted the very important observations of Jewelry
been this, that where you have an honest trustee fairly anxious to perform his duty and to do as he thinks best for the estate, you are not to strain
the law against him to make him liable for doing that which he has done, THE LIABILITY OF TRUSTEES.
and which he believes is right in the execution of his duty, without you have a plain case made against him.
In other words, you are not to Is his judgment in the recent case of Billing v. Brogden, Mr. Justice North done, for the purpose of finding Preasons for fixing & trusted with
exercise your ingenuity, which, it appears to me, the Vice-Chancellor has made some important observations on the liability of trustees with refer- liability;" but you are rather to avoid all such hyper-criticism of euce to the case of Speight y. Gaunt (31 W. R. 401, 9 App. Cas. 1), and it documents and acts, and to give the trustee the benefit of any doubt may be useful to give, in advance of the regular report of the cases some It should be stated that the action was nog vestuis que trustent against attention to the principles there laid down had in some cases led his
or ambiguity which may appear in any document, so as to relieve daughter, covenanted with the trustees of her marriage zettneming that he would hold the defendant Budgete liree from liability, and that he ought to caused by an alleged breach of trust. A father, on the marriage of his guide, his hordinip had reluctantly come to the conclusion that he came to
ve years after -y them on the
f the trustees, wards became rator, or by his
by them in a e testator, and
n that the ti Intiffs, and the
as the only in. active steps: estate then astees, and far
them, but a rere extremely in
have taken more active steps, and at an earlier time than he did, to get in the orders, which he had read, and which he could not go behind. He the trust money.
was not satisfied that the gentleman had the means of paying; it would A second and equally important question remained for consideration be not only idle but mischievous to send him to prison. He should make whether, if the defendant Budgett had used due diligence in attempting the order, not to issue for a fortnight, the debtor to pay the costs.to recover the trust funds, any good would have resulted therefrom ; for it COUNSEL, E. Cutler, Q.O., and Whiteway; Lyttelton Chubb. SOLICITORS, was clear that the court would not punish a trustee pecuniarily for his Boxall & Boxall; A. B. Chubb. breach of trust, except so far as loss had resulted therefrom to the trust estate. In other words, if no loss had been incurred, or the loss had been replaced be
TAXATION-SOLICITOR—UNDERTAKING-ORDER TO REVIEW. fore action, there was nothing remaining for the trustee to make good, al. though no doubt the court might think fit to remove him from the trustee
In the case of Re W.F. Law and John Nicholls $ Co., before Kekewich, J., ship. In Hobday v. Peters (28 Beav. 603) a policy was assigned to trustees.
on the 24th of August, a question arose as to the liability of a solicitor They never obtained possession of it, or gave notice to the office, and the
to carry out his undertaking to repay money received by him in the assignor first mortgaged and afterwards surrendered the policy. The
event of the judge ordering a review of the taxation. This was a motion trustees were held not liable, as they had no funds out of which they Messrs. Nicholls & Co., solicitors, should be ordered to pay forth with to
on behalf of W. F. Law, a solicitor of the Supreme Court, asking that could bave paid the premiums, and, if they had sued the assignor, it would have been useless, as Lord Romilly, M.R., was satisfied upon the
the agents of W. F. Law the sum of £46 18s. 9d., pureuant to an under
The undertaking was evidence that the assignor could not have paid. In Ratcliffe v. Winch taking dated the 24th day of June, 1887, and costs.
“57, Basinghall-street, E.C.,
"London, 24th June, 1887.
" Re W. F. Lau. lordship was aware. Lord Romilly, M.R., said (19 Beav. 271): “ When it is the duty of a trustee or executor to obtain payment of a sum of money, Worssam the sum of forty-six pounds eighteen shillings and ninepence,
“Received of William F. Law, Esq., by payment of Messrs. Law & the trustee or executor is exonerated and never required to make good the loss if he has done all he can to obtain payment, but his efforts have not being the amount certified to be due by the taxing master's certificate in this proved successful. Nay, more, if he has taken no steps at all to obtain matter, which we undertake to return to the said Messrs. Law & Worssam payment, but it appears that, if he had done so, they would have been, within four days after the decision of the judge overruling or varying the or there is reasonable ground for believing that they would have been,
taxing master's certificate.
26.6.87. ineffectual, then he is exonerated from all liability.” On the evidence his
“JOHN NICHOLLS & Co." lordship came to the conclusion that loss had resulted from the defendant By an order made on the 27th of July, 1887, on the application of W. F. Budgett's omission to take proceedings to compel payment of the money. Law, Kay, J., ordered that it be referred back to the taxing master to The defendant Budgett and the executors must pay the plaintiffs' costs of the action, but the liability of the executors must be limited by a direction that he laid down in doing vacation business, not to deliver formal judg.
KEKEWICH, J., said that he made an exception in this case to the rule that the costs which they had to pay were not to be increased by reason of the prolongation of the trial beyond the day on which they submitted to
ments. The respondent here gave an undertaking to return a sum of money judgment.
to the solicitors of the applicant within four days after the decision of the judge overruling or varying the tas ing master's certificate. On the 27th of July an order was made sending back the certificate to the taxing master to review. It had been for years the settled practice and rule of
the court that where one of the parties desired to appeal on a question CASES BEFORE THE VACATION JUDGE. of costs such as this, the money was paid to the solicitor at once on the PRACTICE—VESTING ORDER-Real PROPERTY-DESCRIPTION OF PARCELS IN against him. The rule rested on the faith that such an undertaking made ORDER-TRUSTBE ACT, 1850.
by an officer of the court would be observed most strictly. Nicholls got In the case of Re Adams, before Kekewich, J., on the 24th of August, enforce that undertaking. He ordered Nicholls to pay the money within
the money on the faith of the undertaking, and his lordship would strictly sitting as Vacation Judge, a question arose as to whether property which was the subject of a vesting order was sufficiently described. It was also asked
seven days, and pay the costs.-COUNSEL, George Henderson ; Bramwell that the consent of the lords of the manor (the land being copyhold) to
Davis. SOLICITORS, Law & Worssam; Arnold Williams & Co.
PRACTICE-MOTION TO COMMIT-SOLICITOR-SERVICE.
effected through his solicitor. Re A Solicitor (14 Ch. D. 152) was cited ; KEKEWICH, J., said that the parcels should be set out, and the consents in that case service of the notice of motion at the residence of the party recited, otherwise the applicants would not get a good title, and he gave was held sufficient. directions to the registrar accordingly.- Counsel, George Henderson. KEKEWICH, J., said that he was unwilling to send a man to prison SOLICITORS, Albert Batchelor, for Gisby & Son, Ware.
without another attempt to serve him. The applicant must send two
registered letters to the two addresses, stating that he did it by the direc-
Watson. SOLICITORS, Robinson f Dees.
15th inst., at the age of eighty-two. Mr. Holtby was born in 1804. He
was admitted a solicitor in 1840, and he had ever since practised at York. ATTACHMENT-SOLICITOR-PERSON "
ACTING IN A FIDUCIARY CAPACITY" He was a perpetual coinmissioner for the North and East Ridings of DISCRETION—DEBTORS Act, 1869, s. 4, SUB-SECTION 3; Debtors Act,
Yorkshire and for the City of York, and he had an important private 1878, s. 1.
practice. He had been for many years clerk of indictments and deputy-clerk In the cases of Preston v. Etherington and Etherington v. Etherington, magistrates for the Pocklington Division of the East Riding Mr. Holtby
of assize on the North-Eastern Circuit, and he was till recently clerk to the before Kekewich, J., on the 24th of August, a question arose whether a solicitor who was ordered to pay a certain sum of money chairman of the York Board of Guardians. He was in partnership with
was a director of the York Gas Light Co., and he was for fourteen years was a "person acting in a fiduciary capacity” within the third exception in section 4 of the Debtors Act, 1869.
Mr. Robert Holtby, who is clerk of arraigns on the North-Eastern A motion was made
Circuit. for leave to issue a writ of attachment against a solicitor for disobeying an
Mr. Holtby was buried at the York Cemetery on the 19th inst. order of the 8th of July, 1887, where by he was ordered to pay a sum of money and interest. In support of the motion Marris v. Ingram (13 Ch. D. 338) was cited. It was contended on behalf of the respondent that the
APPOINTMENTS. applicant had not proved that the debtor was fraudulent or dishonest. Mr. WILLIAM JOHN COURTHOPE, barrister, has been appointed a Civil He simply was unable to pay, and the court should exercise its discretion Service Commissioner. Mr. Courthope is
the eldest son of the under section 1 of the Debtors Act, 1878. The debtor never acted in a
Rev. William Courthope, and was born in 1841. He was educated at New Kekewich, J., said that he was satisfied that it was a trust debt from obtained the Newdigate prize for English verse in 1864, and the Chancel