Page images
PDF
EPUB
[blocks in formation]
[ocr errors]

could not be considered so. Both these proposals were
declined; and the attorney then informed the official
assignee that he was proceeding with the action. No
application for indemnity is made to the Court of law, nor
to this Court, until the end of 1843, when the official
assignee presents a petition, praying, that until indemnity
be given to him by the creditors' assignee,-not to the
satisfaction of this Court, but to the satisfaction of himself
the petitioner,-all proceedings in the action should be
stayed. I am of opinion, that, under all the circum-
stances, there was no sufficient foundation for this
petition, nor for requiring the interference of this Court
in his behalf; and that, as no loss or practical inconve-
nience has been sustained by the official assignee, the
petition was unnecessary and superfluous. The respon-
dent, therefore, now undertaking to indemnify the offi-
cial assignee from the costs of the action, without pre-
judice to any question as to the propriety of the action,
the petition must be dismissed, with costs.

Te

Ex parte ELIZABETH Killick, by Thomas SPOONER

Rowsell, her next friend. In the matter of CHARLES Westminster,

KILLICK and John Sadd. Jan. 17. A testator de- This was the petition of the wife of one of the bankvised and be queathed two

rupts, appearing by her next friend, praying that the freehold houses to his daughter, assignees might be restrained from selling and disposing her heirs and assigns, with all of certain furniture and effects, which had been bethe furniture in one of the queathed to her, as she alleged, for her separate use, houses, " for her own sole use and benefit:" Held, that these words applied to the furniture, as well as the house, and that the daughter having, after the testator's death, intermarried with K., who afterwards became a bankrupt, was entitled, as against the assignees, to the whole of the farniture for her separate use.

[blocks in formation]

and that the assignees might be ordered to deliver the same up to the petitioner.

By the will of Samuel Lea Child, the petitioner's father, bearing date the 4th June 1822, the testator devised and bequeathed to his daughter, the petitioner, after the decease of his wife, on her attaining the age of twenty-one years, a freehold estate at Mitcham, in the county of Surrey, consisting of two houses and a small cottage, with their appurtenances, to hold the same unto his said daughter, her heirs and assigns, for ever, with all the household furniture, plate, china, glass, linen, prints, and pictures, as might be in his house at Mitcham aforesaid, on the decease of his said wife, for her own sole use and benefit. But, if his said daughter should not have attained the age of twenty-one years, on the death of his said wife, then it was his will and desire that his executor should immediately sell and dispose of the said household furniture and effects for the most money that could be reasonably got for the same, and invest the money arising therefrom in some one of the public funds, in the name of his said executor, upon trust to pay the same to his said daughter on her attaining the age of twenty-one years; the interest and dividends thereof, and the rents and profits of his said estate, in the meantime to be applied to her maintenance and education. And it was his further will and desire, that the said messuages or tenements, and the rents, issues, and profits thereof, and the estate and interest of his said daughter therein, should not be liable to the debts, control, or engagements of any husband she might thereafter marry, . The testator also devised other freehold property to his son, and he appointed his wife Elizabeth Child, and

[blocks in formation]

Richard Andrews, executrix and executor of his said will.

The testator died in the year 1830, without revoking or altering his will, which was duly proved by the executrix and executor.

Elizabeth Child, the widow, died in the year 1835, having had possession during her life of the household furniture and effects bequeathed by the will ; and, shortly after her decease, the executor, Richard Andrews, died, leaving his wife, Margaret Andrews, his sole executrix.

The petitioner attained her age of twenty-one years in the lifetime of the testator, and in the year 1831 intermarried with the bankrupt, Charles Killick. In contemplation of this marriage, an indenture of settlement was executed, whereby certain real and personal estates were vested in trustees, upon trust for the separate use of the petitioner for her life, with power to dispose of the same by her will, with remainder in default of appointment to the bankrupt, Charles Killick, for his life, in the event of his surviving her, with divers remainders over; but the settlement did not in any manner comprise or affect the household furniture and other effects bequeathed by the will.

The petition then alleged, that, on the death of Elizabeth Child, the petitioner took possession of the furniture and effects, and caused them to be removed to the residence of herself and her husband at Walworth, and afterwards to their residence at Brixton, where the petitioner continued in possession thereof up to the time of her husband's bankruptcy: that in August 1843, the petitioner caused part of the furniture and effects to be removed to a house, No. 17, Trafalgar Square, New Peckham, which had been agreed to be let to the peti

1844.

Ex parte
KILLICK.

tioner's husband ; and that such removal was by the sole authority of the petitioner, without any communication with the personal representative of the testator, who was not cognizant of such removal.

On the 8th November 1843, a fiat issued against the above bankrupts, upon which the assignees took possession of all the furniture and effects, both at Brixton and at Peckham. On the 11th November following, the landlord of the house at Brixton distrained the furniture and effects there for rent, certain parts of which, belonging to the petitioner under the will, was sold to a Mrs. Clarac, for 511. 17., which sum was furnished to her for that purpose by the petitioner, out of the annual proceeds of the real and personal estate comprised in her marriage settlement, and which had been settled to her separate use, for her life, upon her marriage. On the 2nd December 1843, the petitioner gave notice to the assignee of her claim to the furniture, and requiring him not to proceed to sell it; but the assignee had, nevertheless, advertised it for sale.

Mr. Lewin, in support of the petition. The testator in this case having given the freehold houses to his daughter for her separate use, free from the debts or engagements of any husband with whom she might intermarry, it must be inferred that he meant that the furniture in one of those houses should be enjoyed by her for her separate use, it being expressly left to her “ for her own sole use and benefit.” The word “ sole" must have some meaning, and cannot be rejected as surplusage. In Adamson v. Armitage (a), where there was a bequest to a woman of a fund, with the interest thereon, to be

(a) 19 Ves. 416.

[merged small][merged small][ocr errors]

vested in trustees, the income arising therefrom to be for her" sole use and benefit," it was held that these words vested the fund itself in her for her separate use. So in Ex parte Ray (a) it was decided, that, where the property of a lady, about to marry, was settled to trustees, for “ her own sole use, benefit, and disposition,” it gave her a separate estate. And it also makes no difference in the present case, that the legatee was unmarried at the time of the bequest; for the limitation to “ her sole use” would attach upon her marriage. This was so held in Newlands v. Paynter (b), where personal chattels were bequeathed to a single woman for her separate use, and without the intervention of any trustee ; and it was held by Lord Cottenham, that they could not be seized in execution by a judgment creditor of an after-taken husband.

Mr. Swanston, and Mr. Wood, for the assignees. In the construction of a bequest of property to a woman, the marital right is not to be excluded, without a clear intention to that effect expressed by the testator. According to our interpretation of the will, the whole becomes harmonious and consistent, but not so, according to that contended for by the other side ; for, where the testator meant any portion of the property to be free from the control of the husband, he says so in express words; and it may be therefore inferred, that, where he does not say so, it was not his intention to exclude the marital right. The word “sole,” without any other words to explain the meaning of the testator, would certainly not give her the property for her separate use, free from the control of any future husband. In Tyler v.

[blocks in formation]
« PreviousContinue »