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articles for ber sole use and benefit. He after wards made his will; bequeathing certain legacies and making other dispositions of his property, and giving the residue of it to trustees in trust for his wife for life with remainder to six nieces absolutely. The furniture, plate, and other articles were, at the time of the husband's death, in the house which had been occupied by him and his wife, and the whole had been used by them in the ordinary way. The Vice Chancellor refused to support this gift to the wife as a trust declared by her husband in her favour, and held that the furniture, plate, and other articles formed part of the husband's estate. He declined to follow Baddeley v. Baddeley and Fox v. Hawks, and based his decision upon the principle laid down in Milroy v. Lord supra, as followed in Richards v. Delbridge supra, which he con- sidered applicable to every case of a gift, with- out any exception as to a gift from husband to wife. He said :-"It was not the purpose or meaning of the husband in writing these letters to constitute himself a trustee for his wife. I can well understand in such case a husband saying to his wife, I mean to give you this as your own, but when you ask me to be a trustee for
you I must respectfully decline. I do not want to be involved in a trust of that kind or in
any trust P'
This is the last decision of the English Courts which I can find on the subject of imperfect gifts from husband to wife. The subject has aince been rendered of much less practical importance in England by ss. (2.) and 50 of the Conveyancing Act, 1881, and ss. 1 (1.), 2, 5, and 25 of the Married Women's Property Act, 1882. By the combined operation of these enactments husband and wife may now in effect deal with one another with respect to property in the same manner as if they were unmarried.
The view taken by Vice-Chancellor Hall in the last-mentioned case us to the effect of Milroy v. Lord has since been adopted in Ireland in Hayes v. Alliance Assurance Co... L. R. Ir. 149. In that case an assignment of a policy by a husband to his wife by deed poll attested by one witness was held not to be a declaration of trust, because the intention of the husband was merely to assign the policy. The report of this case is, I believe. not to be found in the Colony, but I take this statement of its effect from Lewin on Trusts (eighth edition) p. 69 and May's Treatise on the Statutes of Elizabeth against Fraudulent Conveyances, etc., (second edition) p. 423. I have now examined, so far as appears to be necessary, the cases which deal with in- complete voluntary dispositions of property both generally and as between husband and wife. As regards the general question the law appears to be settled by the principle laid down in Milroy v. Lord, followed by Richards v. Delbridge and other cases, Then how does the case of such dispositions of property between husband and wife stand? Is it to be governed by this general principle or by a special principle applicable only to itself? I think the answer to this question must be that the case falls within the operation of the general principle, that is, that imperfect gifts between husband and wife must be tested in
THE HONGKONG WEEKLY PRESS AND
the same way as imperfect gifts between strangers. This view was expressed in explicit terms by Lord Romilly in Price v. Price supra and by Vice-Chancellor Hall in In re Breton's Estate supra. I can find no opinion to the contrary expressed in any of the cases, although no doubt judges have shown a leaning to support, where possible, gifts made by a husband to his wife.
Applying then the principle of Milroy v. Lord, it appears that a complete gift inter vivos of property of any kind may be effectually made in one or other of the three following ways:-
(1.) The donor may transfer the property to the persons for whom he intends to provide.
(2.) The donor may transfer the property to a third person, as trustee for the purposes of the settlement by which he provides for the intended donees.
(3). The donor may declare himself a trustee of the property for the intended donees.
|
But there is the proviso that if the gift is intended to be made by one of these modes but for any reason fails to take effect in that mode,
the Court will not give effect to it by applying another of these modes, and if it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as declaration of trust.
&
(June 4, 1898, and profits of the properties received by the defendant, with the usual accompaniments of such a direction.
with regard to the costs of the suit, as the litigation has been occasioned by no fault of How is the present case affected by these the defendant but by the mistake of her hus- rules P Nothing can be clearer than that band, I do not like to decide the matter with- Domenico Musso intended to give the lease-out giving the parties an opportunity of hold properties in question to his wife, the discussing the question of how the costs are defendant. by a deed of assignment which to be charged and borne, if they should desire Either party will therefore have purported to transfer to her direct the whole to do so.
Irave to apply in Chambers within 14 days of his legal and equitable interest in them. This gift has failed to take effect in the from this date. If no such appplication is way intended in consequence of the operation made, the plaintiffs will have their costs. of the rules of law governing the relations of husband and wife. This being so, the proviso comes into play and the Court is anable to give effect to the gift by applying another of the specified modes of transfer or to hold that the intended transfer operates as a declaration of trust. The result is that the gift which is now impeached cannot be supported by the Court.
I may add that the result would not have been different even if the somewhat more liberal view taken in Baddeley v. Baddeley and Fox v. Hawks had been adopted. For in those cases the Court thought that the donor had spoken and acted in such a way in making the gift as to raise the inference that he had consti- tuted himself a trustee for his wife, Here the evidence before the Court, so far from support- ing any such inference with respect to Domeni. co Musso, is directly opposed to it. There could not be, to my mind, a more simple and absolute tranfer than that made by the deed of assignment in this case.
It is with much regret that I have arrived at these conclusions The consequence of them is that a gift which her husband had of his free will made to the defendant is defeated at the instance of her sons. But the law-or at any rate the law as I conceive it to be-is to
blame for this result. And a like regret at its operation has been expressed in other cases In Firebrass v. Pennant supra judgment is said to have been given against the wife reluctante totâ curiâ. In In re Breton's Estate
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Vice-Chancellor Hall said :--"I unable to support this gift to the plaintiff, the wife, as a trust declared by her hustad in her favour. I am very sorry for it, because it is a monstrous state of the law which prevents effect being given to such a gilt." See also the observations of Lord Justice Knight Bruce in Milroy v. Lord supra and of Lindley and Fry, L. JJ., in Re Shield supra.
There are one or two subordinate points to be noticed.
Mr. Francis argued that the fact of the defendant's entering into possession of the leasehold properties after her husband's death and remaining in such possession had the effect of validating what might originally have been an imperfect title. But I do not find any authority in support of such a proposition, and it seems to be opposed to the case of Price v. Price supra.
the
Some reference was made in the argument at the bar to the question of the effect on this transaction of the Statute 27 Eliz. c. 4 Act for the protection of bond fide purchasers of lauds against frandulent and voluntary conveyances. But in this case the defendant. as assignee of the leasehold properties, has bound herself by express covenants to pay Crown rent and to perform all the covenants of the lease. And in Price v. Jenkins, L. R.. 5 Ch. D. 619, it was held by the Court of Appeal that an assignment of leaseholds to which a responsibility is attached is not a voluntary conveyance within the statute. In that case Lord Justice James intimated a doubt whether an assignment of leasehold property can ever be, strictly speaking, voluntary. The decision in this case, although sometimes doubted. was followed in Ex parte Doble; In re Doble, 26 W. R. 407. in In rê Lulham; Brinton v. Lulham, 53 L. J. Ch. 9 8. and in Harris, v. Tubb. L. R. 42 Ch. D. 79.
The result upon the whole case is that there must be a decree in favour of the plaintiffs declaring that the deed of assignment is nul and void and that the leasehold properties purporting to be assigned thereby form part of the estate of Domenico Musso, deceased, and directing an account of the rents
31st May.
IN APPELLATE JURISDICTION,
BEFORE SIR JOHN CARRINGton (Chief JUSTICL) AND MR. JUSTICE WISE (PUISNE JUDGF).
THE
CHINA MERCHANTS' STEAM NAVIGA- TION COMPANY, LIMITED, PLAINTIFFS
"POWAN," AGAINST THE 8, S.
AND THE HONGKONG. CANTON, AND MACAO BTEAMBOAT COMPANY, LIMITED, PLAIN- TIFFS AGAINST THE S S. "KWANGLEE." Mr. Francis, Q.C. (instructed by Mr. H. L. Dennys, Crown Solicitor) said he appeared for Mr. Pollock (instructed by appellants and Messrs Deacon' and Hastings) for respondents. The motion was under the provisious of Ordin- ance 13 of 1896, section 120, which regulated the Admiralty procedure of the Supreme Court. The appeal was in respect of Admiralty suits 1 and 2, 1898-China Merchants' Steam Naviga- ship Powun, and the Hougkong, Canton, and tion Company, plaintiffs, against the steam- Macao Steamboat Company, Limited, plaintiffs, against the steamer Kwanglee-and the notice was AS follows:-"Take notice that this Honourable Court will on Tuesday, the 31st day of May, 1898, at 10.30 o'clock in the fore- noon, be moved by Mr. J. J. Francis, Q.C., counsel for the owners of the above named steamship Kwanglee, by way of appeal from a judgment of this Honourable Court in its Ad- miralty jurisdiction, delivered in the above actions on the 5th May instant, in so far as that judgment declares the said steamship the Kwanglee to be partly to blame for the collision, the subject matter of these suits, and decrees her to pay a moiety of the damages sustained by the steamship Powan and of the assessors' fees and to bear and pay her own costs in both suits, and in so far as the said judgment omitted to declare the said steamship Powan wholly to
blame for the said collision, and to decree her to
pay the whole of the damages sustained by the Kwangler, together with the costs of both suits, and the assessors' fees; and the said counsel will move for a decree reversing the said judgment in so far as is herein before mentioned, and for a decree declaring the steamship Powan her owners solely to blame for the said collision, and condemning her in full damages and costs." Subject to their lordships' consent his friend and himself respectfully suggested that it would be convenient to adjourn the hearing of that application till next Monday week. Their lordships would have to decide as to whether to sit with assessors or otherwise, or with one. assessor or two. and to make the necessary. arrangements.
Mr. Justice Wise-There is only one point. You are appealing with regard to the project- ing 35 feet beyond the wharf?
Mr Francis-1 am appealing against the decision that the 'Kwanglee was to blame for the collision.
Mr. Justice Wise--That was the only point: in which she was to blame.
Mr. Francis-Do you wish me to open, out the matter in detail ?
Mr. Justice Wise-If it is a pure point of law what do we want with assessors P
Mr. Francis said it might involve a question of experience. As to that portion of the find. ings in the judgment where the court, acting on the opinion of the assessors, declared that they ought to have had a stern light-that by the rules and regulations for the Prevention of› Collisions at Sea they ought to have had a stern: light as a matter of ordinary precaution-
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