the old law, always required a special case to be made out for the appointment of a receiver where an administrator had been appointed, and I think that it ought to insist on this more strictly than ever, now that the Court of Probate has power to protect the property during litigation. It was clearly the intention of the framers of the Probate Act that the Probate Court should have power to decide itself the whole matter in dispute, and that the parties should not be put to the expense of a second suit in this Court. I do not mean to say that the jurisdiction of this Court is put an end to by the Probate Act; but a stronger case for the appointment of a receiver must be made out than was required before. Here no such case is made out, and it is not even alleged that the Defendants are insolvent. I therefore allow both demurrers. Solicitors: Messrs. Wedlake & Letts; Messrs. Mackenzie, Trinder, & Co. M. R. 1870 HITCHEN v. BIRKS. MORGAN v. MALLESON. Voluntary Gift-Memorandum of Transfer of Bond-Non-delivery-Implied Declaration of Trust. A memorandum of a voluntary gift in this form, "I hereby give and make over to M. an India bond, value £1000," was signed by S., and given by him to M., without handing over the bond. S. died, and the residuary legatees under his will claimed the bond: Held, that the memorandum was a good declaration of trust in favour of M., and that he was entitled to the bond. THE following memorandum was given by John Saunders, the testator in the cause, to his medical attendant, Dr. Morris : "I hereby give and make over to Dr. Morris an India bond, No. D., 506, value £1000, as some token for all his very kind attention to me during illness. "Witness my hand, this 1st day of August, 1868. The signature was attested by two witnesses, and the memorandum was handed over to Dr. Morris, but the bond, which was M. R. 1870 July 26, 28. transferable by delivery, remained in the possession of Saunders. There was no consideration for it. Saunders died more than a year afterwards, having by his will bequeathed the residue of his personal estate to charities. A suit was instituted for the administration of his estate, and a summons was taken out by the Attorney-General on behalf of absent charities for the direction of the Court on the question whether this memorandum was or was not a valid declaration of trust in favour of Dr. Morris. Mr. Wickens, for the Attorney-General, contended, on behalf of the absent charities, that this memorandum, which was a document of an informal nature given by Saunders to his medical attendant, and without consideration, could not be taken to be an assignment or a declaration of trust when there had been no delivery of the bond: Ex parte Pye (1); Meek v. Kettlewell (2); Dillon v. Coppin (3); Antrobus v. Smith (4); Edwards v. Jones (5). Mr. Jessel, Q.C., and Mr. Speed, for Dr. Morris, contended that the memorandum was a good declaration of trust, and that Dr. Morris was entitled to the bond: Kekewich v. Manning (6); Richardson v. Richardson (7); Parnell v. Hingston (8)." July 28. LORD ROMILLY, M.R.:— I am of opinion that the paper-writing signed by Saunders is equivalent to a declaration of trust in favour of Dr. Morris. If he had said, "I undertake to hold the bond for you," or if he had said, "I hereby give and make over the bond in the hands of A.," that would have been a declaration of trust, though there had been no delivery. This amounts to the same thing; and Dr. Morris is entitled to the bond, and to all interest accrued due thereon. Solicitors for the Attorney-General: Messrs. Raven & Bradley. (1) 18 Ves. 140. (2) 1 Hare, 464. (3) 4 My. & Cr. 647. (4) 12 Ves. 39. (5) 1 My. & Cr. 226. (8) 3 Sm. & Giff. 337. TAYLOR v. TAYLOR. Joint Stock Company-Executors of Deceased Shareholder-Payment of Legacy →Subsequent Winding-up-Liability for Calls. The executors of a shareholder in a joint stock company, which was a going concern at the time of the testator's death, paid a legacy under his will without providing for any contingent liability in respect of the shares which they retained unsold. The company was subsequently wound up, and the executors were placed on the list of contributories:→→ Held, that they were liable to pay the amount of the legacy in satisfaction of calls. THE question in this case was, whether the executors of a deceased shareholder in the Leeds Banking Company, which was wound up after the testator's death and the distribution of his assets, were liable to pay, in satisfaction of calls, a sum which they had already paid to a legatee under the testator's will. ידי Robert Webster, the testator in the cause, was at the time of his death possessed of twenty shares in the Leeds Banking Company. He bequeathed by his will a legacy of £200 to Elizabeth Taylor. The testator died in March, 1863, and his debts and the said legacy were paid by the executors without setting aside any sum to answer contingent liabilities, the banking company being then a going concern... The banking company subsequently stopped payment, and was ordered to be wound up. The shares belonging to the testator had not been disposed of, and the executors were placed on the list of contributories; but the testator's estate was insufficient to pay the calls. 3 The official liquidator now applied for an order against the executors, making them liable to pay in discharge of calls the sum of £200, which they had already paid to the legatee.. Mr. Southgate, Q.C., and Mr. Kekewich, for the official liquidator, contended that the executors were not justified in paying the legacy without setting apart a sufficient sum to meet the contingent liability attaching to the shares, and that the payment could M. R. 1870 July 26. M. R. 1870 TAYLOR V. TAYLOR. not be allowed. They referred to Norman v. Baldry (1); Governor of Chelsea Waterworks v. Cowper (2); and Knatchbull v. Fearnhead (3). Mr. Jessel, Q.C., Mr. G. N. Colt, and Mr. Phear, for the executors : The payment of this legacy ought to be allowed. The liability was only contingent, for the bank was a going concern at the time of the testator's death, and an executor cannot be called on to keep his testator's assets for the purpose of paying a contingent debt: King v. Malcott (4); Dean v. Allen (5); Dodson v. Sammel (6); Wentworth v. Chevill (7). Besides, if the Court had been called upon to administer the estate of the testator, with a knowledge of the facts, it would have sanctioned the payment of the legacy. The executors cannot, therefore, be made liable for doing that which, if they had been acting under the direction of the Court, they would have been bound to do. LORD ROMILLY, M.R., said that this was a similar case to Knatchbull v. Fearnhead. The executors had committed a breach of trust in paying the legacy without providing for the liability attaching to the testator's estate at the time of his death in respect of these shares. The amount must be paid to the official liquidator. Solicitors for the Official Liquidator: Messrs. Freshfield. Solicitors for the Executors: Messrs. Prior & Bigg, agents for Mr. H. Bramley, Sheffield. (1) 6 Sim. 621. (2) 1 Esp. 275. (7) 26 L. J. (Ch.) 760. (4) 9 Hare, 692. (5) 20 Beav. 1. In re CONSOLS INSURANCE ASSOCIATION. GLANVILLE'S CASE. Winding-up Act, 1848-Contributory-Transferor and Transferee-Transfer subsequent to Presentation of Petition. Where shares in a company have been transferred in the interval between the presentation of a Petition for winding up the company under the Joint Stock Companies Winding-up Act, 1848, and the date of the order, the transferor, and not the transferee, is the proper person to be settled on the list of contributories in respect of the shares. ON the 16th of January, 1862, a Petition was presented, under the Joint Stock Companies Winding-up Acts, 1848, 1849, and 1857, for the winding up of the Consols Insurance Association. On the 28th of June, 1862, an order was made on this Petition, by which it was ordered that the Consols Assurance Association be absolutely dissolved as from the 28th of June, 1862, and be wound up under the provisions of the said Acts. At the time of the presentation of the Petition, John Glanville was the holder of fifty shares in the company. On the 29th of January he transferred his shares to one John Daily, and such transfer was duly registered in accordance with the regulations of the company, and John Daily's name was entered on the register of shareholders. The official manager now sought to have Mr. Glanville's name placed on the list of contributories. The question turned on the meaning of the word "contributory," as used in the said Acts. By sect. 3 of the Joint Stock Companies Winding-up Act, 1848 (11 & 12 Vict. c. 45), it is enacted, amongst other things, as follows: "The word 'company' shall mean any partnership, association, or company, corporate or unincorporate, to which this Act applies. "The word 'member' shall mean any person entitled to a share of the assets or accruing profits of any such company at the time of presenting the Petition for dissolving the same, or winding up the affairs thereof under this Act. "The word 'contributory' shall include every member of a M. R. 1870 July 28. |