ANONYMOUS. fide settlement of property or to confer any benefit on the infant [ *710 ] defendant. The settlement was intended only to serve as a reason or occasion for the institution of this suit, the object of which is to bastardise the infant. Secondly. The refusal of the trustee on which the suit pretends to be instituted was wholly collusive and unreal. Thirdly. There is no real controversy, for there is no opposition of interest. The infant, who alone has a contrary interest under the trust to that of the plaintiff, by her counsel very properly disclaims and repudiates all right and title under the settlement. Fourthly. The suit pretends and affects to be instituted for the purpose of determining the alleged right or claim of the infant defendant to this small trust property; but in reality it is manufactured for the purpose of compelling the present trial, in an indirect way, of a most important question affecting the title to large estates, namely, the status of legitimacy or illegitimacy of the infant. It is wholly contrary to the principles which govern the administration of justice that any person should be permitted by means of an unreal trust, designed and created for the purpose, to force another person as defendant in a collusive suit to try prematurely and against *his will an important right or title which has not yet arisen or come into possession, so as to admit of its being brought forward and prosecuted in the regular and legitimate manner. I approve therefore of the VICE-CHANCELLOR's decision in the present case; but I cannot at all assent to the principles or reasoning on which his former decision in the case of Gurney v. Gurney (1) was founded. The petition of appeal must be dismissed with costs (2). 1864. Feb. 19. March 1. WOOD, V.-C. [2 H. & M. 1301 DREW v. MARTIN (3). (2 H. & M. 130–134; S. C. 3 N. R. 637; 33 L. J. Ch. 367; 10 Jur. N. S. 356; 10 L. T. N. S. 291; 12 W. R. 547.) An agreement for the purchase of land was entered into in the names of husband and wife, and the husband died before the whole of the purchase-money had been paid. Upon an inquiry in an administration suit as to the real property of the husband: Held, that it did not include the purchased estate, that the purchase enured for the benefit (1) 136 R. R. 168 (1 H. & M. 413). (2) See a similar ratio decidendi in the case of Forrest v. Manchester, Sheffield and Lincolnshire Rail. Co., 132 R. R. at p. 175 (4 D. F. & J. 126). (3) In re Whitehouse, Whitehouse v. Edwards (1887) 37 Ch. D. 683, 57 L. J. Ch. 161, 57 L. T. 761. of the widow, and that the unpaid purchase-money was payable out In this case a decree had been made for the administration of the real and personal estate of Thomas Martin, who died in 1862 intestate as to real estate. In the year 1859 an agreement was entered into in the names of the testator and his wife for the purchase of certain freehold land from a Land Company, the price to be paid by instalments. The agreement was on a printed form, and the stipulations for conveyance, payment of *instalments, and the like, were expressed throughout in the singular number (as regards the purchaser), except that the commencement was altered in ink into the form: "We, the undersigned Thomas Martin and Louisa Martin, agree to purchase," and that the agreement was signed by both. Some of the instalments had been paid in the testator's lifetime, but others had not then fallen due. The widow insisted that the purchase was intended to enure for her benefit after the testator's death, and that the remaining instalments ought to be paid out of his general personal estate. The heir-at-law insisted that the purchase was for the testator himself, and claimed the premises by descent. The question was adjourned from chambers into Court. Mr. Pemberton, for the widow: The agreement is in the joint names of husband and wife, and the occasional use of a singular pronoun in the printed form is clearly accidental. The purchase, therefore, is an advancement for the wife: Soar v. Foster (3), Christ's Hospital v. Budgin (4), Kingdon v. Bridges (5), Vance v. Vance (6). The husband was clearly liable to a decree for specific performance, and the remaining instalments must therefore be paid. out of his personal estate. Mr. Tripp, for the heir-at-law: The distinction between this and the authorities cited is that here the purchase-money has not been fully paid. There is nothing to show that the husband intended to make his wife a gift of the fee, and the property has therefore descended: Caton v. Rideout (7). (1) This lien would now be primarily payable out of the purchased property under the Real Estate Charges Acts, 1867, 1877.0. A. S. (2) But see now the Bankruptcy Act, 1883, s. 47, as to the avoidance of voluntary settlements made by a settlor who subsequently becomes (3) 116 R. R. 280 (4 K. & J. 152). (5) 2 Vern. 67. (6) 49 R. R. 462 (1 Beav. 605). (7) 84 R. R. 189 (1 Mac. & G. 599). DREW v. MARTIN. [ *131 ] [132] Further, even if there were any intention to benefit the wife, she is a volunteer and could not have the agreement specifically performed. Mr. Pemberton replied. VICE-CHANCELLOR SIR W. PAGE WOOD: The point to be decided arises on the inquiry of what the testator's real estate consisted. The property in dispute was purchased by the testator in the names of himself and wife. The contract is rather informal, the singular pronoun having been left almost throughout the printed form; but there is enough to make it clear that the agreement was meant to be a joint purchase by the husband and wife. Some part of the purchasemoney remains unpaid, and, the matter thus resting in contract, the question is what ought to be done? To this extent the authorities, which are numerous and of early date, are quite conclusive that a purchase by a husband in the names of himself and wife is held to operate for the benefit of the wife surviving. If therefore the conveyance had been completed, the widow would be entitled to the land. Her position in fact is exactly the same as that of a child in whose name a purchase has been made. But here the contract is not completed, which raises questions with reference to the payment of the purchase-money, and the effect of the transaction as against creditors in the case of an insolvent estate. At present it is not necessary to go into this last question. The authorities are not very clear whether a purchase by way of advancement is within the 13 Eliz. c. 5(1), though it is held not to be within 27 Eliz. c. 4. The subject was discussed in Glaister v. Hewer (2); but I have not the creditors. before me, and it is not necessary to decide how they would be affected by the transaction. The other point raised in the argument, as to how far the wife, as a volunteer, would be entitled to have the contract completed and the money paid out of the husband's personal estate, did not appear to me to involve any difficulty. Although the wife, being a mere volunteer, could not compel specific performance, still the vendors could enforce payment from the husband's estate, and when they had done so the conveyance would have to be made to the wife surviving. The case has some analogy to Gregory v. Williams (3), Davenport v. Bishop (4), and that class of authorities, wherein the benefit of (1) See Barrack v. M'Culloch, 112 R. R. 60 (3 K. & J. 110). (2) 8 Ves. 195. A purchase in the joint names of husband and wife by a husband with money at his own disposal was voidable on his bankruptcy under 1 Jac. I. c. 15, 8. 5.-0. A. S. (3) 17 R. R. 136 (3 Mer. 582). (4) 65 R. R. 483 (1 Ph. 198). There a The a covenant when enforced by others has been held to enure for a volunteer. Among the authorities I find one case entirely in point. This is a decision of Lord CLARE'S, Redington v. Redington (1), which is mentioned without disapproval by Lord St. Leonards in his work on Vendors and Purchasers. father purchased in the name of one of his sons certain property, and before the *purchase-money had been fully paid became desirous of transferring the benefit to another son; but it was held that he was not entitled to do so, and in the conclusion of the judgment this passage occurs: "One objection had nearly escaped my memory, and that is that by this decree the executor of old Thomas Redington is directed to make good out of his personal estate any balance which may appear upon the account to remain unpaid of the original purchase of Reyhill. ground upon which I made that a part of the decree simply was, that by the agreement of old Thomas to make this purchase for his son Michael, this balance unpaid is in equity as much a debt of his as any other debt of the same nature, and I conceive that his personal estate must be subject to it, more particularly as he has devised it to the appellant Thomas the younger expressly subject to his debts." It is clear that the decree does not rest merely on the paternal relation, but on the principle that, as the vendor could insist on payment, it was not a case of enforcing a contract for a volunteer, but merely a question who was to have the estate. There is a rather singular remark at the end as to the conduct of the appellants, which shows that the case had been vigorously contested, and it is obviously a wellconsidered decision. It The principle of that decision seems to me quite sound. is not the volunteer enforcing the contract, but the vendor entitled to enforce, and the volunteer thus taking the benefit of the estate. The finding therefore in this case must be, that this property is not part of the testator's real estate. DREW v. MARTIN. [134] TAUNTON v. ROYAL INSURANCE COMPANY (2). Directors of an Insurance Company offered to pay losses caused by a gunpowder explosion, although their policies contained an express exception of such losses, at the same time not admitting any legal liability to do so. On a bill by a shareholder to restrain the payments, (1) 3 Ridg. 106. (2) Att.-Gen. v. Great Eastern Rail. Co. (1879) 11 Ch. D. 449; R.R.-VOL. CXLIV. Tomkinson v. South Eastern Rail. 6 1864. Feb. 29. WOOD, V.-C. [135] TAUNTON v. ROYAL INSURANCE COMPANY. [136] it appearing on the evidence that it was usual and advantageous for Companies to make such payments, although not strictly bound to do so: Held, that this was a mode of carrying on the business with which the Court could not interfere, and the bill dismissed with costs. THIS was a bill filed by a shareholder in the Company to restrain the Royal Insurance Company and the directors from paying losses to houses in Liverpool insured against fire with the Company occasioned by the concussion of the air resulting from an explosion of gunpowder on board of a vessel, the Lotty Sleigh, in the river Mersey, on the 15th January, 1864, and to declare the directors personally liable to make good any payments already made. The form of policy was an insurance against loss or damage by fire, and it had indorsed upon it the following among other conditions: "Losses by lightning will be made good by the Company as far as where either the buildings or effects insured have been actually set on fire thereby and burnt in consequence thereof. No allowance will be made for any hay, &c., destroyed or damaged by its own natural heating, nor for any goods which may be destroyed or damaged while undergoing any process in or by which the application of fire heat is necessary. Neither will the Company be responsible for any loss or damage by explosion, except for such loss or damage as shall arise from explosion by gas." The deed of settlement of the Company gave to the directors the power of settling and adjusting claims, and general powers of conducting the business of the Company, including insurance against any kind of casualty, according to their discretion, as might be most for the welfare of the Company. The case came on upon a motion, which was turned into a motion for decree. From the evidence it appeared that eighty-one houses insured in the Royal Insurance Company had been damaged by the explosion, and that the directors immediately resolved to pay claims arising from the explosion, but without acknowledging any legal liability to do so. This resolution was generally known, and the same course was shortly afterwards followed by other Companies. Evidence was given that it had been customary for offices to pay losses by explosion even in cases where all explosions were excepted by their policies, and that it was for the advantage of a Company to deal liberally with customers, even to the extent of paying losses not strictly within the terms of their policies. As an example it was stated that damage to one house by water used v. West Cork Rail. Co. (1883) 23 Ch. D. 654, 52 L. J. Ch. 689, 49 L. T. 420; Kaye v. Croydon Tramways Co. [1898] 1 Ch. 358, 67 L. J. Ch. 222, 78 L. T. 237; Cycling 1 |