June 4, 1898.1
registered in the Land Office as Marine Lot number one hundred and eighty eight and the remaining portion of Marine Lot number one hundred and eighty Kinton or with all and singular the messuages erections and buildings thereon and the rights, rights of extension members privi leges easements and appartenances thereunto belonging or appertaining and all the estate right title interest term and terma of years claim and demand whatsoever of the said Domenico Musso both at law and in equity in the mamo pieces or parcels of ground and premises excepting thereout as in the said Crown Lenses is excepted to hold the said pieces or parcels of ground and premises with their and every of their rights members and appurtenances bereby assigned or intended so to be unto the said Lucia Vittoria Musso her executors administrators and assigns absolutely from henceforth for the respective residues now to come and unexpired of the several terms of nine hundred and ninety nine years therein created by the said several indentures ot Crown lease subject nevertheless to the payment of the Crown renta and to the performance observance fulfilment and keeping of all and singular the covenants conditions reservations and agreements in and by the said indentures of Crown lease respectively reserved and contained.
Then follow covenants by Domenico Musso, for himself and his heirs, executors, and admin- istrators, that the rents, covenants, and condi- tions relating to the premises assigned had been paid, observed, and performed up to the date of the assignment; that the Crown leases were subsisting that he had power to assign, free from incumbrances; for quiet possession; and for further assurance. The deed then pro- ceeds as follows:-
And the said Lucia Vittoria Musso doth hereby for herself her heira executors administrators and assigns covenant with the said Domenico Musso that she the said Lucia Vittoria
In witness whereof the said parties hereto have hereunto set their hands and seals the day and year first above written.
Signed sealed and delivered D. MUSSO
[Seal] by the parties in the pre- LUCIA V. Musso (Beal)
HENRY J. HOLMES,
Solicitor, Hongkong.
sence of
CHINA OVERLAND TRADE REPORT.
real property. It is, I think, clear that the defendant's contention is well founded and must prevail. In Story's Conflict of Laws s. 424 it is said:"The general principle of the common law is, that the laws of the place where im- moveable property is situate exclusively govern in respect to the rights of the parties, the modes of transfer, and the solemnities which should accompany them." This rule is gener- ally, although not universally, admitted by foreign courts and jurists, and it may be said that the English law has shown itself jealous in an especial degree for the maintenance of the rule to the full extent. It necessarily results from this rule that the capacity or incapacity also to take or transfer immoveable property depends, according to English law, on the lex situs and not on the lex domicilii. Here the question is Domenico Musso to transfer certain leasebold as to the power of properties in Hongkong to the defendant, his wife, and as to her right or capacity to take those properties on that transfer, and I am of opinion that this question must be determined in accordance with the law of Hongkong or, in other words, with the law of England as it exists in Hongkong in relation to this subject.
But it must be confessed that there is much difficulty in ascertaining and applying this law to the decision of the questions now before the Court. Here is a case of a gift of lease- holds made by a husband to his wife direct, that is, without the intervention of trustees, Now it is clear that at common law, having
Musso her executors administrators or assigns will during the respective residues of the said several terms of years ray the yearly Crown rents and shall and will observe and perform all the covenants conditions and agreements the cin respectively contained as far as regards the premises hereby assigned and will keep the said Domenico Musso his heirs executors and administrators indemnified against all notions suits expenses and claims on account of the non-payment of the said rents or the breach or non-observance or non-per-regard to the time-honoured but now some- formance of the said covenants and conditions or any of them.
what exploded doctrine of the unity of husband and wife, any such direct gift was ineffectual and did not pass the property to the wife: Co. Litt. 3 a, 168; Com. Dig. Baron and Feme (D 1). See also Firebrass v. Pennaut, 2 Wils. 255. But it is not so clear whether a court of equity will give effect to such an ineffectual gift by constituting the husband a trustee for the wife or, in other words, by treating the attempted gift as equivalent to a declaration of trust made by the husband in favour of the wife. The determination of this question is glosely connected with the consideration of the larger question of whether and under what circumstances a court of equity will perfect an imperfect gift of a voluntary character. Counsel for the plaintiffs cited several cases on this head, and he argued that they established the general proposition that where a donor has not done everything necessary to complete his gift but has left it in an incomplete condition, a court of equity will not interfere to make it effectual by treating the donor as a trustee for the donee. He further contended that this general rule applies to the case of gifts between husband and wife, and that therefore the present case falls within its operation. I think it will be convenient for me to examine the cases decided with reference to the general rule before proceeding to the consideration of the cases which deal with gifts between hus- band and wife.
On the date of the execution of this deed Mr. Musso signed the memorial for its registration, but this memorial was not then registered in the Land Office. On the same date the defendunt executed a power-of attorney by which she ap- pointed her husband Domenico Musso her attorney with full powers of sale, etc., in relation to the leasehold properties mentioned in the deed. Mr. Musso continued in possession of the leasehold properties referred to until the time of his death, at the same time paying the Crown rents thereon and receiving the rents and profits thereof, but the defendant contends that his possession was that of a trustee for her, the assignee named in the deed.
Mr. Musso died on the 16th December, 1896, and it is agreed between the parties that, as regards the leasebold properties in question, he died intestate.
A few days after his death, that is, on the 21st December, 1896, the memorial of registra. tion above mentioned was duly lodged in the Land Office and registered by the plaintiff Vincenzo Pietro Musso di Peralta.
On the death of her husband the defendant entered into possession of the properties, and she has since received the rents and profits -thereof. Apparently also she has paid the Grown rents and performed the other co- venants contained in the deed.
In these circumstances the plaintiffs, as the next of kin of Domenico Musso, come to the Court and ask for a declaration that the deed is null and void and that the properties purport- ing to be assigned thereby form part of the estate of Domenico Musso. They also ask for an account of the rents and profits received by the defendant and for payment by her to the estate of what may be found due on the taking
of such account.
The first question to be determined is with respect to the system of law which is applicable to the case, or, in other words, is the decision to be governed by Italian or English law? It is contended by the plaintiffs that, as Dom- enico Musso and the defendant were domiciled Italian subjects at the time of the execution of the deed, they were subject to Italian law. and that by Art. 1,054 of the Civil Code of Italy gifts inter vivos by a husband to his wife or by a wife to her husband are absolutely void. The defendant does not deny that this is the effect of the Italian law, but she con-
tends that that law has no application and that the case is governed by the English law of
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441
The case of Milroy v. Lord, 4 De G., F., & J. 264, was much discussed on both sides in the conrse of the argument and was especially pressed upon the consideration of the Court by counsel for the plaintiffs. That case was decided in 1862 by the Lords Justices on appeal from a decree of Vice-Chancellor Stuart. The facts there were that Thomas Medley executed a voluntary deed purporting to assign fifty of his shares in the Bank of Louisiana to Samuel Lord, to be held by him upon certain trusts for the benefit of his niece Eleanor Dudgeon, the plaintiff, who afterwards became the wife of the other plaintiff Andrew Milroy. According to the constitution of the Bank of Louisiana the shares were transferable only by entry in the books of the Bank, but no such entry was ever made. Samuel Lord beld at the time a
transfer Thomas Medley's shares, and Thomas general power of attorney authorizing him to Medley, after the execution of the settlement, gave him a further power of attorney authoriz. ing him to receive the dividends on his shares in the Bauk. Thomas Medley lived three during that period the dividends on the shares years after the execution of the deed, and
were received by Samuel Lord and remitted by him to the plaintiffs, sometimes directly and sometimes through Thomas Medley. After the death of Thomas Medley a bill was filed by the plaintiffs against Samuel Lord and
ley to euforce the trusts of the settlement. the personal representative of Thomas Med- The Vice-Chancellor made a decree in their favour, but the decree
was, on appeal, reversed by the Lords Justices, Knight Bruce and Turner. They held that, as it was not the intention of the settlor to constitute himself a trustee of the shares, but to vest the trust in Samuel Lord, there was no valid trust of the shares created in the settlor; that there was no valid trust of the shares created in Samuel Lord because he had not taken the requisite steps to vest the shares in himself, as he might have done under his power of attorney; and that therefore the disposition of the shares. failed, as being an imperfect voluntary gift which the court would not perfect. Lord Justice Knight Bruce said that he did not think the case fell within the principle of decision-in which he took part-in Kekewich v. Manning supra, and found himself. though almost or altogether with regret, unable to agree with the decree appealed from as to the bank shares." In the course of Lord Justice Turner's judgment the law as to voluntary trusts is thus sum. marized, at p. 274:-"I take the law of this Court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property com- prised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferr ing the property to the persons for whom he intends to provide, and the provision will then at the bar and which was a good deal relied be transfers the property to a trustee for the The earliest of these cases which was cited be effectual, and it will be equally effectual if upon by counsel for the defendant was Keke- purposes of the settlement, or declares that he wich v. Manning, 1 De G. M. & G 176. That himself holds it in trust for those purposes; case was decided by the Lords Justices in 1851. and if the property be personal, the trust may, There the facts were that residuary estate as I apprehend, be declared either in writing consisting of money in the funds was be- or by parol; but, in order to render the settle- for the mother for life, and afterwards for must, as I understand the law of this Court, queathed to a mother and daughter in trust ment binding, one or other of these modes
made in contemplation of the daughter's Court to perfect an imperfect gift. The cases the daughter absolutely. By a settlement be resorted to, for there is no equity in this marriage, the daughter assigned her interest I think go further to this extent, that if the the issue of the intended marriage, and for of the modes to which I have referred, the under the will to trustees, upon trust for settlement is intended to be effectuated by one
niece. The daughter's husband died soon after another of those modes. If it is intended to a niece of the daughter and the issue of the Court will not give effect to it by applying the marriage, of which there was no issue, take effect by transfer, the Court will not hold The mother was not a party to the settlement. the intended transfer to operate as a declaration but had notice of it before the husband's of trust, for then every imperfect instrument death. The Lords Justices, Kright Bruce and Lord Cranworth, in an elaborato judgment in into a perfect trust."
would be made effectual by being converted
which all the authorities are reviewed, held that, even if the settlement was voluntary as regarded the trusts in favour of the niece, it was enforcement at the instance of the trustees of a complete alienation. so as to be capable of
the settlement against the daughter, and the trustees of another settlement which she made upon a second marrige inconsistent with the former settlement.
that he
V
There can, I think, be no doubt that this case contains an authoritative exposition of the law under this head. The cases of Richardson v. Malleson, L. R. 10 Eq. 475, which were cited in Richardson. L. R. 3 Eq. 686, and Morgan v.
support of the defendant's contention, would seem, to a certain extent, to qualify the doctrine there laid down. But it is to be observed
that these were decisions of a court of 'first
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