1847.

MANNING

v.

CHAMBERS.

dividends and interest thereof, if any, unto, between, and amongst all and every the child and children of the said E. Manning" as therein expressed, with limitations over to other branches of the family in case of the death of the said E. Manning without leaving any child who should attain a vested interest.

By the same deed it was declared that one other ninth part or share of the residue of the said moiety of the said trust funds (after the decease of the said J. Manning, the settlor) should be held "upon trust for C. C. Manning, the second son of the said John Manning, deceased, his wife and children, for the same or the like estates and interests, and subject to the same or the like conditions, and with the same or the like limitations over as are hereinbefore expressed and declared of and concerning the one-ninth part or share of the said E. Manning, of and in the same residuary moiety of said trust funds and premises, as if the same were here repeated in words at length, and made applicable to said C. C. Manning, his wife and children."

S. Manning died in December, 1842, and new trustees had been appointed under a power in the settlement, to act in conjunction with J. Manning the settlor.

J. Manning, the settlor, died on the 28th of February, 1845.

E. Manning and C. C. Manning, who had been partners in trade as drapers, were declared bankrupts, on the 11th of February, 1842, upon a fiat in bankruptcy issued against them on the 9th of February, (both dates being prior to the date of the declaration of trust). They obtained their certificates on the 16th of December, 1842.

E. Manning was married, and had one child, an infant.
C. C. Manning was a bachelor.

This suit was instituted in April, 1846, by cestuis que trustent, under settlement of the 14th of February, 1842, for a declaration of the rights of the parties entitled under it, and to have the trust carried into effect.

E. Manning died in August, 1846, and his widow administered to his estate, and the suit was thereupon revived. The chief questions in the cause arose upon the construction of the limitations in favour of E. and C. C. Manning, having regard to the fact of their bankruptcy having occurred before the date of the settlement.

Mr. Malins and Mr. J. T. Humphry, for the plaintiffs. -The intention of the settlor was manifestly to benefit E. and C. C. Manning, and certainly to exclude their assignees in bankruptcy; and it must be taken that the testator did not know of their bankruptcy when he executed the deed of settlement. The words on which the question arises may, when literally construed, refer to the future only; but the Court will, in order to give effect to the intention, treat them as having reference to the event which had occurred: Yarnold v. Moorhouse (a), Wynne v. Wynne (b), James v. Durant (c).

Mr. Swanston and Mr. J. H. Palmer, for the widow and administratrix of E. Manning, and for C. C. Manning.By the words, "until he shall become bankrupt" and "upon his becoming bankrupt," the settlor intended to provide against the effect of bankruptcy, and not merely against the transition to a state of bankruptcy; and although the words ordinarily would imply a transition, they obviously here provide against a status. It must be assumed that the settlor was ignorant at the time he executed the settlement, that the event of bankruptcy had actually taken place; for it is very improbable that the settlor would direct trustees to pay income to a party, who was then an uncertificated bankrupt, until he should become bankrupt. Wilkinson v. Adam (d) is as to the point under discussion coincident with the present case.

(a) 1 Russ. & My. 364. (b) 2 Keen, 777.

(c) 2 Bea. 177.

(d) 1 Ves. & Bea. 423.

1847.

MANNING

v.

CHAMBERS.

1847. MANNING

บ.

CHAMBERS.

Mr. Bacon and Mr. Berkeley, for the assignees of E. Manning and C. C. Manning.-Messrs. E. and C. C. Manning being bankrupts uncertificated at the date of the settlement, the assignees are entitled to both shares. The bankrupts could not have incurred a forfeiture by an act committed before the execution of the deed.

In Rex v. Chitty (a) the Court was called on to put its construction on a clause of the Municipal Corporation Act, similar in effect to the clause in the present deed. By sect. 52 of that act (5 & 6 Will. 4, c. 76) it is provided that, if a person holding the office of mayor, alderman, or councillor for any borough, "shall be declared bankrupt, or shall apply to take the benefit of any act for the relief of insolvent debtors," or do any other act therein specified, "then and in every such case such person shall immediately thereupon become disqualified, and shall cease to hold the office of such mayor, alderman, or councillor." Now it appeared that Mr. Chitty had been elected to the office of town-councillor for the borough of Shaftesbury, being at the time of his election and continuing to be an uncertificated bankrupt. And upon the argument on a rule nisi for a quo warranto against him in respect of his being a councillor, the Court of King's Bench held that the writ would not lie, and that the 52nd section did not apply to a town-councillor, unless he became bankrupt whilst holding the office.

Mr. Begbie, Mr. Borton, and Mr. Rogers, appeared for the other defendants.

The VICE-CHANCELLOR, in the course of the argument, referred to cases of wills where the testator, having had children who had died, and children living at the date of his will, has used words of bequest to the children of his children who should die, using words of futurity, in some of

(a) 5 Ad. & Ellis, 609.

which cases it had been held that children of children of the testator who had died previously to the date of the will were within the scope of the bequest. His Honor mentioned Tytherleigh v. Harbin (a), Giles v. Giles (b), Smith v. Smith (c), and Jarvis v. Pond (d); and remarked that in Rex v. Chitty (e), one question was not discussed; a part of the case having been apparently taken for granted; and moreover that there might be an arguable distinction between the words "shall be" in the statute, and the words shall become" in the present trust deed.

The VICE-CHANCELLOR:

The clause to be construed is this. [His Honor read it.] It appears that, in point of fact, E. Manning was at the time of the execution of the deed of settlement, an uncertificated bankrupt, the fiat having issued five or six days previously. But according to the true interpretation of the language of this settlement the Court, I think, is bound to decide that the income of Edmund's one-ninth share belongs to his wife for her separate use, from the death of the settlor.

It was reasonable for the assignees to appear and raise the question, and, notwithstanding that I dismiss them, I shall give them their costs out of the trust fund.

As to the share of C. C. Manning, he being a bachelor, the fund constituting his one-ninth share must be brought into court, and accumulate until further order, according to the provisions of the deed.

1847.

MANNING

v.

CHAMBERS.

(a) 6 Sim. 329.

(b) 8 Id. 360.

(c) 8 Id. 353.

(d) 9 Id. 549.

(e) 5 Ad. & El. 609.

1847.

May 5th, 7th, & 8th.

LANCASHIRE v. LANCASHIRE.

A testator de- WILLIAM LANCASHIRE, by his will, dated the 16th

vised real es

trust, imme

diately upon the happening

or marrying, to

settle the same, or such part thereof as the trustees should think proper,

to the use of the

tates to J. H. of May, 1830, after making a specific devise of a house and and A. L., upon premises to his sister-in-law, Ann Lancashire, gave all the residue of his real and personal estate unto and to the use of either of two of John Hutchinson and the said Ann Lancashire, their events, i. e. his niece's attain heirs, executors, administrators, and assigns, upon trust to ing twenty-five convert his personal estate into money, and to stand possessed of such trust monies, and also to stand seised of the said residue of his said real estate, upon trust to apply the whole or such part of the rents, interest, and income of the said trust estate and premises, as they, he, or she should think proper, in the support, maintenance, and education of the testator's niece, Sarah Lancashire, (being the daughter of the testator's brother, John Lancashire, by the said Ann Lancashire), until she should attain the age of twenty-one years, or be married with the consent of the trustees of that his will for the time being; and immediately upon the happening of either of the said events, upon trust to convey, assign, lutely; and as and as and settle all the said trust estates, monies, and premises, and the accumulations thereof, (if any), or such part or parts

niece for life,

with remainder

to the use of her children, as

she should ap

point, and, in

default of ap

pointment, to her children, with remainder to the use of A. L. and her heirs abso

to such parts as the trustees

should not

think fit so to settle (with respect to which the testator gave them absolute discretion), upon trust to convey the same to S. L. (who was the testator's heir-at-law) in fee.

In 1831, J. H. and A. L. proved the testator's will, and accepted its trusts. J. H. shortly afterwards desired to retire from the trust, and a deed was executed, but not in conformity with the trusts, purporting to appoint J. O. a trustee in his stead, but no conveyance was executed to J. O. In 1842, J. H., A. L., and J. O. executed a deed, purporting to be made in exercise of the power of appointment given by the testator's will to his trustees, and thereby appointed the estate to A. L. in fee, J. H. executing this deed, on receiving an indemnity from A. L. and her solicitor. Held, that the direction to settle was not a power in the nature of a trust which would prevail if no appointment was made, but was purely discretionary, and that the effect of the original trustees remaining inactive was to leave the beneficial interest to result to S. L., the heirat-law.

Held, also, that the deed of 1842 was not a proper execution of the power.

An heir-at-law, claiming by bill as such, stated his title in detail. The defendants, by their answer, put him to prove such title, but neither asserted nor suggested that there was any other heir. The plaintiff proved his pedigree in the cause.

Held, that the Court might and ought to decide the disputed question of pedigree without sending it to a jury; and it appearing that the evidence of heirship was, previously to the institution of a suit, submitted to the defendants, the trustees, and was such as they ought to have been satisfied with, the Court gave the plaintiff the costs of the suit as against the trustees, including the expenses of the genealogical evidence.