Frederick Thomas White.

A selection of leading cases in equity, with notes (Volume 2) online

. (page 128 of 133)
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how far he will be coiitrolled Avith respect to it, ib.

Presumption of a gift being intended stronger in the case of a father
than a mother, ib.

Powers for maintenance and advancement of infants generally inserted
in wills and settlements, 707

Must be exercised by trustees bona fide, ib.

Expenses of ediication allowed under a power ai;thorising an allowance
for maintenance and support, ib.

Discretion of trustees not interfered with, when, ib.

Similar powers conferred by statute 23 & 24 Vict. c. 145, ib.

Stop short at minority, 708

What payments trustees may make imder, ib.

How far trustee before the statute, without a power, might advance
income of infant for maintenance, 709

Trustee should apply to the Court, when, ib.

Father bound to maintain his children, ib.

If of ability, not allowed liy the Court maintenance out of their
l^roperty, ib.

So also in the case of property derived from a stranger, ib.

Secus where he has contracted for maintenance in a marriage settle-
ment, ib.

Unless there is a mere power, 710

Though there be a discretionary trust for maintenance under a volun-
tary post-nuptial settlement, ib.

Although there be a provision for maintenance, ib.

What constitutes ability of father to maintain his children, ^7*.

Reference to the ability of the father, when omitted, ib.

No reference where the property small, ib.

Or no allowance for maiiitenance is asked, ib.


I'NFANTS— continued.

Or where children are taken from their father on acconnt of his ill-
conduct, 711
Wife formerly not bound to maintain her children out of her separate
estate, ib.

Separate estate not taken into consideration in determining the ability
of the father, ib.

Mamed woman, under 33 & 34 Vict. c. 14, liable to maintain her children,
when, ib.

After death of husband, maintenance allowed Avithout reference to the
widow's abihty, ib.

In allowing maintenance to an infant, regard had to the state of his
family, ib.

As, brothers and sisters unprovided for, ib.

Even in the case of an illegitimate brother born of same parents, 712

Father and mother being in distressed and indigent circumstances, ib.

Allowance made for charity, ib.

Maintenance allowed notwithstanding direction to accumulate, when, ib.

Or a limited interest be given for maintenance, with a direction to
accumulate the rest, ib.

Or interval before payment of a legacy be unprovided for, 713

Allowance for keeping up a mansion, when made, ib.

Court will not sanction trustees, as a general rule, in breaking in upon
infant's capital, ib.

Sanctioned when Court would have done the same, 714

Trustees should be cautious in making advances, ib.

Costs of suit have priority over allowance to trustees for maintenance,
when, ib.

No allowance for maintenance out of kindness and benevolence, ib.

Even where a mother has advanced a son dming minority, ib.

Distinction between an advance by a stranger and a trustee for an
infant's necessaries, ib.

Court wiU not in general break in upon capital of infant for mainten-
ance and education, ib.

Except where the interest is too small, 715

Distinction between allowance for prospective and past maintenance, ib.

Court may charge past maintenance on real estate of infant, ib.

He cannot do so by deed, ib.

Undertaking to pay money on account of maintenance enforced, ib.

Guardian appointed for infant out of jurisdiction, to whom money for
infant's maintenance may be paid, ib.

Proceedings in Ireland adopted, same person appointed guardian, 716

Attorney appointed to receive maintenance, when father out of juris-
diction, ib.

Court may refuse maintenance, in order to compel parent to bring
infant within the jurisdiction, ib.

Income of lunatic infant residing abroad, paid to parent, ib.
13. Advancement under a iwicer.

Generally made out of capital under a power, ib.

AUowed out of capital by the Court, when, ih.


INFANTS— co(i/i/ute(/.

Power should be strictly followed, 717

What authorised under the terms " prelennent or advancement," ib.

Where the words " or benefit " are added, ib.

For " setting up in business," ih.

Court will not interfere with discretionary power, 718

Unless trustees refuse to act, ib.

Or decline to exercise discretion, ib.

Power cannot be exercised by tenant for life after he has assigned his

interest, when, ib.
Sccus when life interest of the husltand, jure manti, is suliji-ct to

power given to trustees of a settlement on a former marriage of his

Avife, ib.
Object of a discretionary power can only claim what is given to him

by trustees, ib.
Power cannot be exercised where purpose fails, ib.
Secus where there is an absolute becpiest to a party, 719
And if it cannot be given in one way it may in another, ib.
Court will exercise discretion on failure of trustees, ib.
Power of infant to dispose of subject for which advance was made, ib.
As formerly a commission in the army, ib.

14. Advancement in the absence of a power.

Trustee, although having no power, may make an advancement to an

infant out of the infant's own property, when, ib.
Trustee not liable to account if advancement be such as Court would

have made, ib.
If not trustee liable to re})lac.e it, ih.
Application sliould be made to Court in cases of doubt, ib.
Advance allowed to purchase a commission in the army, ib.
to pay for articles to a solicitor, ih.
for an apprentice fee, ih.

to bring an infant home from a foreign country, 720
to furnish a house for the residence of his mother and his

brothers, ib.
for the purposes of emigration, ib.
Father cannot repay himself for advances out of the jn-opert}- of his

child, ih.
Nor semble a mother, ib.
Advancement out of gift to a class with contingent limitation to

survivors or survivor, 721
Cannot be made where there is a contingent limitation over to a third

party, ih.
Except with the consent of such pai-ty, ib>
Or contingency can be insured against, ib.
Infant camiot call upon trustee to replace such fund, when, ib.

15. Provisions relating to infants in the Divorce and Matrimonial Causes Act.
Jurisdiction of the Court of Chancery as to custody of infants not

affected by, 722
Wife when entitled to under, ib.
Custody of children above sixteen not dealt with by Divorce Court, ib.

INDEX. 1169

INFANTS— co?i<iya6et^.

What deeds Divorce Court has power over, 723
Settlements when varied by, ib.

Court will not attempt to force wife to bring child within the jurisdic-
tion by refusing to vary, ib.
Settlements not varied unless issue be living at date of the order, ib.
Child cannot be deprived of benefit under settlement, ib.
Provisions for appointing new trustees cannot be varied, ib.

INFLUENCE, UNDUE. See Voluntary Donations.


To stay proceedings at law, formerly granted, 599

Dispute between Lord Elksmere and Lord Coke as to the jurisdiction,

599, 600.
Account of, by HuUam, 600
In what instances formerly granted, 601

Introduction of equitable pleas did not render them unnecessary, 602
Constitution of the High Court of Justice by the Judicature Acts, ib.
Of the five Divisions thereof, ib.

Prohibition or injunctions to restrain proceedings therein abolished, ib.
Rules of equity to prevail in every Division of the High Court, 603.
One Division cannot restrain proceedings of another by injunction, ib.
Nor ordinarily stay proceedings tlierem, 603, 604, 605
Stay of proceedings by Division in which proceedings are taken, 605
Transfer of case involving a question of specific performance from

Exchequer to Chancery Division, ib.
Ordinarily equitable questions determined in every Division, ib.
Semble jurisdiction of Chancery Division to restrain proceedings in

Courts not belonging to the High Court not taken away, ib.
Creditor formerly restrained by, from proceeding against executor after

a decree in an administration suit, ib.
But not until decree, though a bill Avere filed, 606
Or unless decree gave a present right to go in and prove debts, ib.
Person who has obtained charging order before decree not restrained

if order made absolute before decree, ib.
Judgment obtained before but on same day as decree has no

priority, 607
Proceedings in other Divisions stayed by Chancery Division, after

decree for administration of assets, ib.
After an order for winding-up a company, ib.
Semble not when a company is being wound-vip voluntaril}', ib.
After decree executor cannot exercise any discretion, 608
Must take objection to the Statute of Limitations, ib.
Executor's right of retainer not barred, ib.
Executor must state what the assets are, either in his answer or by

afiidavit, ib.
As to costs of action, when proceedings at law are restrained, ib.
Or proceedings in County Courts to recover a legacy, 609
Costs of proceedings after notice of decree for administration, ib.
Executor protected when estate has been administered by the Court, ib.

TOL. II. 4 F

1170 IxXDEX.


Executor after decree makes payments to creditors at his own risk, 609

Letting judgment go by default, ib.

Suffering proceedings at law to continue, ib.

Executor not permitted, without leave, to proceed against party to

suit, after administration of the estate by the Court, 610
Creditor, after a bankruptcy in this country, not restrained from pro-
ceeding in foreign courts against the bankrupt, ib.
Indian creditors not restrained from obtaining payment out of English

assets, ib.
Priority of Irish judgment creditor over English simple contract

creditors against property remitted from Ireland, ib.
Proof by foreign administrator, 611
To restrain proceedings of Courts out of the jurisdiction, when granted,

Courts of Bankruptcy can now restrain proceedings in other Courts,

Power of the Courts of Bankruptcy untouched by the Judicature Acts,

How far parties . will be restrained from applying for an Act of Par-
liament, 615, 616
Not in general where a party merely seeks to supersede the rules of

property, ib.
Whether arising from contract or otherwise, ib.
Not granted to restrain application to foreign legislature, when, 616
Parties restrained from applying funds of a Company in an application

to Parliament to extend its powers beyond the objects for wliich it

was constituted, 617
Or to vary the object contemplated by an Act of Parliament by which

Company was furmed, ib.
Funds appropriated by act of Parliament for certain purposes, cannot

be applied for extension of those purposes, ib.
Without consent of the Court of Chancery, ib.
Such funds may be employed in defence of existing rights, 618
As opposing a bill in Parliament, ib.
Or funds of Corporation may be apjjlied in opposition to informations

impeaching the title of the Corporation, ib.
May be granted to restrain assets of a company being apjjlied towards

paying costs of prosecution for libel instituted by Directors, 618, 619


of equity, where person is within jurisdiction, to make a decree

concerning property out of the jurisdiction, 955, 956, 957
Not confined to lands within the colonies or empire, 957
Lands out of the jurisdiction cannot be affected directly, 958
Possession of lands out of jurisdiction not decreed, ib.
Nor a partition of, ib.

Nor an issue directed to try the validity of will of, ib.
Nor, in the absence of contract, will boundaries of, be settled by the
Court, 959

INDEX. 1171

JURISDICTION, IN FEllHO}^ AM— continued.

Charity out of the jurisdiction, not administered by the Court, 959

Petition of right, with reference to lands in the colonies, ib.

Cases in which a sequestration of estates in Ireland was ordered, dis-
approved of, 959, 960

Court has no jurisdiction where parties and subject of suit are abroad,

Or when party resident here can be sued abroad in his public charac-
ter, ib.

Principles on which cases proceed, 961

Contract to deliver a thing in specie in this country when enforced, ib.

As to service of a writ of summons out of the jurisdiction, ib.


When general, 243

specific, 243, 244
demonstrative, 244
Importance of distinguishing them, 245

not specific, imless clearly intended to be so, ib.

of money, ib.

when specific, 245, 246

when general, 246

of debts, ib.

when specific, ib.

of a part or residue of a debt specific, ib.

legacy out of a debt demonstrative, 247

of stock or government securities, ib.

when specific, ib.

mere possession of stock not sufficient to render a bequest

in general terms specific, ib.
as of stock or annuities in particular funds, 248
or of India bonds, ib.
or canal shares, ib.

imless there appears to be an intention to refer to par-
ticular stock, ib.
or if sale for benefit of legatee be directed, ib.
legacies of specified sums of stock over which married

woman has power of appointment, when specific, ib.
or a residuary gift thereof, ib.
Legacy of ^;ari of certain stock, is specific, ib.
Legacy of money out of stock, demonstrative, ib.
So, where a sum is given, and the fund for payment is only pointed

out, ib.
Unless intention appears to give a specific legacy, ib.
Stock passes though amount not accurately desciibed, 249
If he had no such stock, other stock might pass, ib.
Of personal chattels, when specific, ib.
When general, ib.

Things ordered by the testator to be made will pass by will, when,

4 F 2

1172 INDEX.

LEGACIES — continued.

SiJecific bequest for life of consumable articles confers an absolute
interest, 249

Except when articles constitute stock-in-tra<le, ib.

And semble farming stock, 250

Wearing apparel, ib.

Consumable articles included in residuary"git't must be sold, 251

Tenant for life only entitled to interest, ib.

Bequest of lease, tithes or rent out of terra, specific, ib.

Where a gross sum is payable out of real estate, it is demijnstrative, ib.

And legacy is payable though fund fails, ib.

Secus, where gift is only in the direction to pay out of fund, ib.

But money to arise from sale of property may be given specitically, ib.

Annuities are legacies, ib. See Annuities.

Residuary bequest, whether specific or general, 258. See Conversion
OF Residue.

Effect of Wills Act on specific bequests, ib.

Extends specific bec^uests of that which is generic to all things of the
same genus at the death of the testator, 259, 2G0

Unless contrary intention appear by the will, ib.

Contrary intention indicated by a bequest of a distinct and specific
thing, 261

Will not pass, unless actually acquired by the testator at his death, 262

As stock which he has instructed his broker to purchase, ib,

Secus, where contract has been entered into to purchase stock, ib.

Contrary intention not indicated by bequest of .property " I now
possess," 263

Legatee has the right of selection, when, 263, 264

Or to take legacy absolutely if it cannot be applied to specified pur-
pose, when, 264. See Abatement of Legacy — Ademption — Satis-

Legatee of specific legacy pledged by testator, entitled to have it re-
deemed by executor, 275

Or to compensation, 275, 276

How far specific legatee of shares entitled to have calls paid out of
the testator's personal estate, 277

Result of cases according to Sir J, Romilhj, M. R., ib.

Whether specific legatee or residuary estate liable for calls on shares
specifically bequeathed, 277, 278

Legatees' rights in respect of depreciation of specific legacy improperly
detained, 278

To whom bonuses on shares specifically bequeathed belong, 279

Dividends on shares or profits of partnership specifically bequeathed,
279, 280, 281

Income of personalty specifically bequeathed when apportionable
between legatee and estate, 281

Parol evidence admissible to show what property answers to a specific

bequest, 282
Not to show that other property was intended if there be no property
answering the description, 283

INDEX. 1173

LEGACIES— co)i<i?iMecZ.

Interest is paj-able on legacies from the time they are due, 289
Specific legacies due at the death of the testator, interest or emoluments

from that time belong to the legatee, ib.
Immaterial that enjoyment has been postponed by the testator, ib.
Demonstrative legacy does not carry interest from testator's death, ib.
Legatee when entitled to interest on specific legacy, where it is

reversionary, ib.
If demonstrative legacy be reversionary, ib.
Where no time fixed, general legacy payable a year after testator's

death and carries interest from that time, ib.
And interest will be due, though the payment of the legacy be im-
practicable, ib.
And whether the assets be productive or not, 290
General legatee of Long Annuities not entitled to dividends before a

year has elapsed from testator's death, ib.
Intention may be shown that interest is not to commence until after

a year on a legacy, ib.
But intention must be clear, ib.
A mere reference to time when personal estate may be received, not

sufficient, ib.
Or a mere direction to invest legacies beyond the expiration of one

year from the testator's death, ib.
Interest will be given from the death, on legacy given in satisfaction

of a debt, 291
Or where real estate is charged with the debts of another, ib.
Or where there is a direction to pay it before twelve months have

elapsed, ib.
Or on a legacy from a parent, or person in loco parentis, to a child, ib.
But not to an adult, ib.

'NtOT where parent has provided maintenance aliunde, ib.
Nor to a natural child, or stranger, unless maintenance directed, ib.
Nor to a wife, ib.
Distinction between commencement of payment of an annuity and of

interest on a legacy for life, ib.
Person having a life interest in residue, entitled to income from tes-
tator's death, 292
But not to the income of that which is wanted for payment of debts,

Tenant for life of land must keep own interest of debts charged

thereon, ib.
Interest from testator's death on legacy charged on land, ib.
From what period when land is directed to be sold for payment of

legacies, 293
Where time fixed for payment of legacy, interest due from that time,

Except where a legacy is left by a parent, or person in loco parentis,
to an infant, when it will be allowed from the death of testator, for
maintenance, ib.
Whether legacy be vested or contingent, ib.

1174 INDEX.

LEGACIES— continued.

Though child be en ventre sa mere, 293

Or accunnilation is directed, ih.

Not payable where sum is allowed for maintenance, ib.

Unless it be insiifficent and legacy be vested, ib.

Not allowed out of legacy where another fund is provided for main-
tenance, 294

Exception not extended to relatives other than legitimate children, ib.

Unless the testator puts himself into loco parentis, ib.

Or his intention appears in the will to allow maintenance, ib.

Legacy to be paid at a future time, with interest, interest payable
from the end of a year after testator's death, ib.

Interest, how payable, when realization of assets occupies a long
time, ib.

Rate of interest on legacies, ib.

When given free from legacy duty, 295

Gift of legacy duty, on a specific legacy, ranks as a pecuniary
legacy, ib.

It must abate with pecuniary legacies, ib.

Legatees exempted from legacy duty cannot call upon other legatees to
abate upon deficiency of residue to pay duty, ib.

In what ciirrency paid, ib.

As to the exchange and expense of remittance of legacy in foreign
coin, ib. See Abatement of Legacies — Ademption — Conver-
sion OF Residue — Marriage — Marshalling — Repetition of
Legacies — Satisfaction.


Takes effect from what time, 74

Affects persons purchasing during pendency of suit, ih.

Registration of, necessary unless express notice be given, ib.

Special case amounts to, when, ib.

Foundation of the doctrine of lis pendens, ib.

How far purchaser from a defendant pendente lite is aft'ected by the

right of another defendant, 74, 75
Doctrine of, is equally applicable against plaintiffs and defendants, 75
Only applicable to property in relation to which a direct question is

raised in the suit. ib.
Assignee affected though contract, completed during the .suit, was

entered into before, ib.
Purchaser during a suit for general administration not affected by, ib.
Secus where in a suit a particular estate is charged with a particular

trust, 76
Not applicable to an ordinary partnership suit for accounts, ib.
Nor to an administration suit, ib.
Nor to the winding up of a Compau)'- as against individual contribu-

tories, ib.
Purchaser whether bound by equities arising out of matters in question

in the suit, 77
Final decree not binding on purchaser, ib,
Secus where decree is not final, ib,

INDEX. 1175

LIS FE^BENS,— continued.
As a decree to account, 77

To affect purcliaser must be close and continuous, 77, 78
AVhether it exists after dismissal of a bill, 78
Does not affect particular person with a fraud without a special

notice, ib.
Is not notice for purpose of postponing a registered deed, ib.
Does not create a lien on property, ib.
Or excuse purchaser from completing his contract, ib.
Puts him upon inquiry into the validity of the plaintiff's claim, ib.
In suit to execute trusts of a voluntary settlement, purchaser for value

not bound by, ib.
Doctrine of, considered hard against purchaser for value, ib.
Favour shown by Coiirts to, ib.

Power given to the Court to vacate registration of lis pendens, 78, 79
Liability of solicitor for neglecting to register, 79


Equity will not give effect to assignments partaking of the nature
of, 811, 812. See Equitable Assignment, 5


Doctrine as to, 699. See Infants, 3 — Legacy.


As to testamentary gifts proJdbiting or tending to a prohibition of

Conditions in general restraint of, both by the Roman and our own

law, void, 179
Or such as lead to a probable prohibition of marriage, 180
Secus, if of a limited nature, ib.
As against marriage with a particular person, ib.
Or a native of a j)articular country, ib.
Or a person belonging to a particular sect, ib.
Or which prescribes ceremonies of marriage, ib.
As of the Quakers, ib.

Or which prohibit marriage until a reasonable age, ib.
But condition not to marry a man of a particular profession invalid, ib.
Condition against a daughter taking the veil or attaching herself to a

convent valid, ib.
Roman law as to conditions restraining widows from marrying, 181
Gift, by our law, during widowhood valid, ib.

Conditions requiring consent to marriage void by the Roman law, ib.
Valid by the law of England, when, ib.
Lord Rosslyn^s account of the adoption of the Roman law in equity,

182, 183
Distinction between conditions precedent and conditions subsequent

1. Conditions precedent tvith respect to marriage.

Conditions precedent on devise of land, or charge to be raised out of

land, on marrying with consent, valid, ib.

1176 INDEX.

MARRIAGE— con<inu«?.

Though there be no limitation over, 183

Legacy to daughter, upon marriage before a certain age, with consent,

does not vest on marriage before that age v^'ithout consent, ib.
Limitation over immaterial, 184
Legacy or annuity to daughter, provided she does not marry before a

certain age, does not vest on marriage before that age, ib.
Even if the marriage be with the consent of the testator, ib.
Doubtful Avliether condition precedent in case of a personal legacy

requiring consent generally, be valid without a bequest over, ib.
With a bequest over it clearly is, ib.
Or there is another provision on marriage without consent, ib.

2. Condition subsequent with respect to marriage.

Condition subsequent, if general, in restraint of marriage, invalid, ib.

Whether in the case of a bequest of personalty, ib.

Of money arising from land directed to be sold, 186

Of a mixed fund, ib.

Secus in the case of a charge on land, ib.

Even if restraint be not general, it will not be valid, ib.

As where the condition is against marriage with a particular person, ib.

Or restraining a widow from marrying again, ib.

Unless there is a gift over upon breach of condition, ib.

Or gift to widow is made to cease on marriage, ib.

Or to a man on his second marriage, 187

Condition subsequent requiring consent to marriage in terrorem
merely, if there be no bequest over, 188

Though there be a diminished gift to legatee on marriage without
consent, ib.

Or the power of diminishing the legacy be delegated to another, ib.

Secus, where there is a gift over of the legacy on marriage without con-

Online LibraryFrederick Thomas WhiteA selection of leading cases in equity, with notes (Volume 2) → online text (page 128 of 133)