No. 15.
Notes of
the Puisne
Judge on the Appeal to
the Full
Court.
8th January, 1936
(Continued)
26
but an express decision as will appear from the wording of the summons in that case.
In re Earl of Carnarvon (1927) 1 Ch. 138 at 148, at 155-If a jointure charged on land does not create a settlement how can a charge on the entire residue create one?
In re Lord Alington (1927) 2 Ch. 253 at 261.
Jointure is on same footing as an annuity.
Re Mr. Macnamara's 2nd point-Equity regards as done that which ought
to have been done-does not apply.
13 Halsbury p.73 n.h.-maxim of very limited application.
Ashburner on Equity 252.
In re Twopenny's Settlement (1924) 1 Ch. 522 at 529. No imperative direction in Will in present case, therefore maxim does not apply. Harbin v. Masterman (1896) 1 Ch. 351-merely gives jurisdiction to Court
to set apart a sufficient sum to answer the annuity.
Carmichael v. Gee (1879-80) 5 A.C. 588.
Submit that unless there is in this Will a direction to set aside then the
authorities are against appellants.
Macnamara in reply.
10
Clause 8 of Will is operative and creates the trusts whereas Clause 20
13 is merely administrative. Under Clause 8 suitable provision for the payment of the annuities have to be made before the trusts mentioned in (a) (b) and (c) of that Clause could be given effect to. Jointure is charged on all the land and the land holder cannot as a profit have any part of this land released therefrom whereas a residuary legatee can from part of the residue set aside to pay an annuity. Asks to reverse decision of Court below.
C.A.V.
17. 2. 36.
Appeal No. 14 of 1935.
Trustees of the Will of Sir C. P. Chater,
4.
Estate Duty Commissioner,
Sir William Shenton for Appellants.
Sd. JAMES J. HAYDEN,
9. 1. 36.
30
Appellants
Respondent
Potter, K.C., instructed by Prentis Asst. C. Soltr. for respondent. Judgments delivered dismissing appeal with costs.
17. 2. 36.
Sd. JAMES J. HAYDEN.