Lane v. Smith. reference being thereunto had, will fully appear; and by reason of the said premises, and by force of the statutes in such case made and provided, the said Thomas Rennie Hutton, and the said Richard Douglas Gough and George Grant Francis, then, and after the right, if any, of the said complainant to the specific performance of the agreement in the said bill mentioned, accrued, became and were and are now assignees of the estate and effects of this defendant as such bankrupt as aforesaid; all which matters and things this defendant doth plead to the said complainant's said bill, and to the discovery and relief therein prayed by him against this defendant, and humbly prays the judgment of this honorable court whether he ought to be compelled to make any further or other answer to the said complainant's said bill." The plea was set down, and now came on for argu ment. R. Palmer and T. H. Hale, for the plea, cited Turner v. Robinson, 1 Sim. & S. 3; Sergrove v. Mayhew, 2 Mac. & G. 97; and Robertson v. Southgate, 6 Hare, 556. Martindale, for the plaintiff, objected that the plea was uncertain and insufficient, inasmuch as it did not sufficiently set out the facts relating to the bankruptcy, or state the statutes under which the defendant became a bankrupt. The plaintiff cannot take issue upon that. It does not sufficiently appear at what time he was indebted to several persons, as in the plea mentioned. The words "last aforesaid " might refer to the time of the passing of the statutes mentioned in the plea. There is no averment in the plea that the property, which was the subject of the suit, is vested in the assignees. The act of Parliament empowering the company to raise money by debentures required, for the purpose of transferring them, that the transfer should be registered in the transfer-book of the company, and that notice should be given by the proper officer. The probability is, that the assignees have rejected this property as of no value. If a supplemental bill were filed against the assignees, they would probably disclaim all interest in the property. The effect of the agreement was to make the bankrupt a trustee for the plaintiff. A bankrupt cannot plead, in bar to a suit for specific performance, a bankruptcy which took place subsequently to the filing of the bill. De Minckwitz v. Udney, 6 Ves. 466. In Sergrove v. Mayhew, the plea was for want of parties. In this case it is in bar to the whole bill, on the ground that the defendant has no interest. SIR JOHN ROMILLY, M. R. The objections as to the form of the plea do not weigh with me. It is very much in the ordinary form of a plea in bankruptcy, which has been adopted from time to time. I do not think there is any obscurity in respect to the statutes referred to as then in force, or in the use of the words "last aforesaid." The other point, as to the vesting of the shares in the assignees, is of more. importance, because a good deal turns on the form of the contract. But I think the provisions of the act of Parliament only refer to Morrison v. Hoppe. assignments by conveyance or grant, and not to assignments by operation of law. I have no doubt that the assignees of a bankrupt would be entitled to his shares, without an entry in the register in the form required by the act. There was no necessity, therefore, to state that the property became vested in the assignees of the bankrupt, because that was the necessary result of law to be drawn from the facts stated. I had some difficulty with respect to this being a plea of subsequent bankruptcy. In the case of De Minckwitz v. Udney it was held, in a suit for specific performance, that subsequent insolvency could not be taken advantage of by plea. But in Turner v. Robinson, a plea of subsequent bankruptcy was allowed. De Minckwitz v. Udney was not cited in that case, and it was not a bill for specific performance. But the case of Sergrove v. Mayhew lays down, that where a party loses all his interest after the filing of the bill, the objection may be taken by plea. The same principle applies in this case as in that, circumstances being shown why the suit should not go on. I think that the interest of the defendant passed to his assignees, and I must, therefore, allow the plea. MORRISON V. HOPPE.' February 14, 1851. Will-Construction- The Words "Property," "Interest," A testator, by his will, devised his "property," and referred to the income by the words Held, that his real estate was included in the word "property," notwithstanding the use of the other words. THE question in this suit was, whether real estate, of which a tes tator was seized at the date of his will, passed by the word “property," or descended as not devised. The will was that of Mr. Lemuel Kirkman, and was dated the 19th of April, 1820, by which he appointed executors, and then proceeded thus: "It is my will that my dear wife have for her own use during her natural life 400l. per annum, arising from stock in the 51. and 41. per cents. standing in my name, and at her death to cease, and the principal to be added to my other property, and to be divided equally, share and share alike, to each of my three daughters, Mrs. Martha King, Mrs. George Biggs, and Mrs. E. Tosswill, and I give to each of them 60l. per annum arising out of the stock in the funds, the interest arising out of all my property. Now, I wish it to be so understood, that the property so left to my daughters be secured to them, that their husbands shall have no power whatever to control or constrain, or sell or mortgage any part of the property left to each of my daughters, or apply it to any other 1 15 Jur. 737. Morrison v. Hoppe. use, but that the executors see the dividends received by them, and paid to my daughters regularly; and in case of the death of either of them, and at the death of each of their husbands, then to be left in trust for their children, and at the age of twenty-one to have share and share alike, if more than one child be living. And I wish to give to the Missionary Society for spreading the gospel at home in the villages round about London, 102.; and also 10l. to the Bible Society, and 51. to the Society for the relief of the Widows of Ministers, held at Spafields Chapel, and 51. to the school of Spafields Chapel. As there will be a considerable residue, viz., canal shares, of the annuities of Mr. J. Lidley and Mr. Gascoigne, and the share stock from the Equitable and Amicable Society, which, and all other remaining property, to be consolidated and laid out in the public funds, or in the most secure and profitable way possible to increase the property; and at the death of Mrs. Kirkman, to be divided, share and share alike, to each of my daughters, and at their death to each surviving child or children, share and share alike, to be so secured as they shall not be at liberty to dispose of it, or to alienate the property from them or their children. Mind this, that their husbands shall have no power to dispose of the property left to each of my daughters, Mrs. Martha King, Mrs. Selina George Biggs, and Mrs. Elizabeth Tosswill, either by annuity, mortgage, or any thing else; the interest to be received by them through their trustees." Wood, Malins, Cairns, Frith, and Toulmin, for the parties interested under the will, argued, that on the authority of Doe d. Wall v. Longlands, 14 East, 378; Doe d. Morgan v. Morgan, 6 B. & Cr. 512; Saumarez v. Saumarez, 4 My. & C. 331; The Midland Counties Railway Company v. Oswin, 1 Coll. 74; Ford v. Ford, 6 Hare, 486; and Warner v. Warner, 15 Jur. 141; s. c. 2 Eng. Rep. 68, the real estate passed by the terms of the will. Roundell, Palmer, and Selwyn, for the co-heiresses at law of the testator, argued for an intestacy as to the real estate; and relied on Doe d. Burney v. Rout, 7 Taunt. 79, and Sanderson v. Dobson, 1 Exch. 141. The Attorney General and Fooks appeared for the trustees. Brett, for another defendant. KNIGHT BRUCE, V. C. I should have sent this case to a court of law to be tried in an ejectment, if either of the parties had desired me so to do. Not one of the parties has desired me to do so; on the contrary, they have all agreed in requesting me to decide; and it is not necessary that I should decline. The question is, whether the word "property," as it occurs no less than eight times in the will, or as used in any one or more of those eight times, is to be construed in its ordinary, correct, and proper sense, or otherwise. The burden lies upon those who say the word is not to be used in its ordinary, Crafton v. Frith. correct, and proper sense, to show that it is not. In my opinion they have not discharged themselves of that burden. The only colorable argument (ably as the case has been argued on both sides) which has been used is, that the testator has expressed himself here and there in the word "interest" and the word "dividends," when he meant income. My opinion is, that the inference arising from the words is not sufficiently strong to warrant the court to depart from the plain. and ordinary meaning of the words used, and particularly when it is impossible for any reasonable man to say that the testator meant as to any part of his property to die intestate. No portion of the real estate he had when he made the will descended either at law or in equity. A testator bequeathed to A., B., and C. the residue of his property, "in trust to be purchased into the funds," for the purpose of "opening new schools, subscribing to those already opened in England, Ireland, Scotland, or elsewhere, and in purchasing land to be let out to the poor at a low rent, and the rent to be applied to any benevolent purpose" the said A., B., and C. might think proper: Held, that the residue was to be divided into two equal parts- one to be applied to the purposes of education according to a scheme, and the other to be paid over to the next of kin of the testator, that part being obnoxious to the mortmain laws. THIS was a suit for the administration of the estate of Philip Frith, who, by his will, dated the 13th of August, 1842, after making several devises and bequests, gave the residue in the following terms: "The remainder and residue of my property I give and bequeath to my friends, R. Sterry, R. Barrett, and J. Barrett, in trust, to be purchased into the funds for the purposes hereinafter mentioned, viz., for opening new schools, subscribing to those already opened in England, Ireland, Scotland, or elsewhere, and in purchasing land to let out to the poor at a low rent, and the rent to be applied to any benevolent purpose the said R. Sterry, R. Barrett, and J. Barrett may think proper." The testator died in March, 1844. The only questions in the suit were, whether or not the residuary gift was void for uncertainty; and whether, if not wholly void, it was not partially so, so far as the gift in mortmain was concerned; and whether, if not wholly void, the same was divisible into two or into three parts. Wigram and Sidney Bell, for the plaintiffs. C. P. Cooper, Swanston, Bacon, Wood, J. Parker, Malins, Roundell Palmer, Rogers, Metcalfe, W. M. James, Messiter, S. James, H. Nichols, J. H. R. Chichester, and Waley, for the defendants. 1 15 Jur. 737. Crafton v. Frith. During the argument, the following cases were cited: Foy v. Foy, 1 Cox, 163. Blandford v. Thackerell, 4 Bro. C. C. 394. Chapman v. Brown, 6 Ves. 604. The Attorney General v. Parsons, 8 Ves. 106. Morrice v. The Bishop of Durham, 9 Ves. 408; s. c. 10 Ves. 532. James v. Allen, 3 Mer. 17. Henshaw v. Atkinson, 3 Mad. 306. The Attorney General v. Hinxman, 2 J. & W. 270. Pritchard v. Arbouin, 3 Russ. 458. The Attorney General v. Mill, Id. 328. Williams v. Kershaw, 1 Kee. 276, note; s. c. 5 Cl. & Fin. 111. Mather v. Scott, 2 Kee. 172. KNIGHT BRUCE, V. C. The first question is, whether the testator has given any discretion to the trustees as to the proportions in which they are to apply the residue for the several objects mentioned in the will, or a discretion to the extent of excluding any one of those objects. The testator has specified several objects. I do not think that any intention or wish can be attributed to the testator of putting it in the power of any one to exercise a discretion, so as to effect the exclusion of any of the purposes which have been mentioned. But here there is something more than silence, because when the testator intended discretion to be exercised, he has said so; for he provides that the small rents which the poor are to pay shall be applied to any benevolent purposes which the trustees may think proper. I am of opinion that, construing the will as it would have been construed if the Mortmain Act had not passed, discretion, in the sense which I have mentioned, is excluded, and that the trustees, therefore, would have been under the obligation of dividing the fund into two or three shares, and applying them in the manner directed. The question has been very properly and very fairly argued, whether the division has been directed by the testator to be into two or into three shares. Upon the whole, I am of opinion that the first two purposes, although apparently two, are, in reality, but one. The whole is a single purpose, namely, charitable education; although the testator has used the expressions "for opening new schools, or subscribing to those already opened, in England, Ireland, Scotland, or elsewhere," he meant only one general purpose of charitable education. I think, therefore, that the division which the trustees would have been bound to make, supposing the case to be out of the Mortmain Act, was a division into two, and that they would not have had a discretion to the extent of taking half from the purposes of education. I am of opinion that the first purpose has not been made unlawful by the Mortmain Act. I think that it is clear, that, whatever is the true meaning of the word "benevolent," the second purpose has been made illegal by the Mortmain Act, that purpose being to purchase land to be let out to the poor at a low rent. The result of my judgment is, that half the residue belongs to the next of kin, and that the other half must be applied to the purposes of education. There must be a reference to the master to settle a scheme, in the settlement of which, no doubt, the opinions of the trustees will receive all proper attention. If the parties should wish it, I have no objection to settle the scheme myself. |