1863.

In re KEYNSHAM COMPANY.

THIS company was being wound-up voluntarily (25 & 26 Vict. c. 89, s. 129) under a special resolution of the 22nd of June, 1863. A creditor of the company was proceeding against it in an action at law.

July 16, 24.

Under a voluntary windinghas jurisdiction.

up, the Court

to stay actions by creditors against the company.

Upon grant

ing an injuncaction by a

tion to stay an

creditor

Mr. Baggallay and Mr. Roxburgh, on behalf of the official liquidator, moved for an injunction to stay the further proceedings of the creditor in the action. They argued that the Court had jurisdiction to stay the action against a comat law under the 138th section, which empowered it to pany, during a voluntary exercise, in respect of calls or "of any other matter," winding-up, the powers which the Court might exercise if the Com- the Court required the pany were being wound-up by the Court. [The MASTER liquidators to of the ROLLS: I think it gives the Court jurisdiction, ditor access give the crebut you must make out a case. This case differs to the proceedings, and from one where the winding-up is in Chambers, for gave to the there I know what funds there are to pay the credi- creditor his tors.] The object of the act is to prevent one creditor the time he from sweeping away the assets, and that all the creditors may be paid pari passu (a). The affidavit up. shews that there are sufficient assets to pay the creditors, and that in two months we shall be able to pay every debt. By the 133rd section (b), upon the appointment of liquidators, the powers of the Directors cease, and therefore the action cannot now be properly defended.

costs down to

had notice of the winding

The MASTER of the ROLLS.

I am disposed to grant an injunction, on the terms of

(a) Sect. 133, par. 1.

(b) Par. 5.

your

1863.

In re KEYNSHAM COMPANY.

your allowing the Plaintiff at law to have access to all the proceedings, so that he may know how the windingup is going on, and I will give him liberty to apply to the Court.

Mr. Beales afterwards appeared and resisted the injunction; but

The MASTER of the ROLLS said, all he could do, if asked, would be to give the creditor leave to answer the affidavits.

The matter was not further pressed.

July 24.

Mr. Beales said there was a difficulty in the registrar's office as to the costs of the creditor, and he now asked for the costs of the creditor at law and of the motion.

The MASTER of the ROLLS thought that the practice was analogous to the staying actions by creditors after a decree for administration, and that here the creditor ought to have his costs down to the time when he had notice of the winding-up, such costs to be added to his debt.

PASKE v. HASELFOOT.

1863.

THE

July 3, 31.

in

A power was

given to A. B.

so

to appoint a

per

fund, by will, to

his wife alone, pur- or to his wife and such of

his children

direct. The

sively to five seven children:- -Held, that the appointment was valid.

out of his

HE testator Robert Charles Haselfoot, who died 1849, gave and bequeathed to his executors much money as would purchase 4,000l. £3: 10s. Cent. Bank Annuities, which he directed to be chased accordingly. And he directed them to stand possessed thereof, "upon trust for his cousin Thomas as he should Theophilus Paske for life, and after his death, upon wife died, and trust to pay one moiety to Ann Paske, the daughter of A. B. appointed the Thomas Theophilus Paske, and " pay, assign and fund exclutransfer the other moiety or equal half part thereof to the wife of him Thomas Theophilus Paske alone, or to her and all or such one or more exclusively of the other or others of the child or children of him, Thomas Theophilus Paske, in such shares and proportions, at such ages or times, and in such manner and form, as he Thomas Theophilus Paske should, in and by his last will and testament, or any codicil or codicils thereto, direct, limit or appoint. And in default of such direction, class, the limitation or appointment, and subject to any which death of some should be made, did and should stand possessed of the bers of that class, before last-mentioned moiety, in trust for all the children of the exercise of Thomas Theophilus Paske who should be living at the time of the decease of Thomas Theophilus Paske.

The testator died in the same year, and the money was duly invested. Susan Emelia, the wife of Thomas Theophilus Paske, died on the 18th of August, 1858, in his lifetime. Thomas Theophilus Paske made his will on the 10th of November, 1858, in which he stated the death of his wife, and recited the powers above men

tioned,

Where there

is a power to

divide a fund

amongst the

members of a particular

of the mem

the power, will not prevent its exercise in favour of the survivors.

1863.

PASKE

v.

tioned, and professed to exercise it, by dividing the stock equally between his three sons William, Edward and Charles, and his two daughters Anne and Fanny, HASELFOOT. in equal shares as tenants in common, omitting his two other children. The question was, whether, after the death of his wife, who was named as one of the objects of the power, and who, at all events, was to take something, he could exercise the power, when it was no longer possible to give her any share of the stock.

Mr. Selwyn and Mr. W. Morris, for the excluded children, argued, that the power authorized an appointment either in favour of the wife exclusively, or to the wife and any of his children; but that no appointment could be made in favour of the children to the exclusion of the wife. That no appointment could be made to a deceased object, and that the attempted appointment to some of the children was invalid. That consequently the moiety of the fund went, as in default of appointment, between all the seven children living at the death of Mr. Paske.

Mr. Baggallay and Mr. Wickens, for children in whose favour the appointment had been made, argued, that the power had not been destroyed by the death of the wife, and could be validly exercised in favour of the children or any of them; Boyle v. The Bishop of Peterborough (a); Ricketts v. Loftus (b); Houstoun v. Houstoun (c); Butcher v. Butcher (d); M'Ghie v.

M'Ghie (e); Sugden on Powers (f).

The MASTER of the ROLLS.

The point on which I reserved my judgment in this case is a very short one, but one on which I have felt some hesitation. The question is, whether Thomas Theophilus Paske has duly exercised a power of appointment conferred on him, which he has attempted to exercise by will in favour of five of his children, excluding two from any benefit therein. In truth, the question resolves itself into this: whether he could, in the events which occurred, exercise the power at all.

After fully considering the cases on this subject, I am of opinion, that the appointment is good and must be supported by this Court. It is quite settled, by a series of cases, beginning with Boyle v. Bishop of Peterborough (a), that if a power of appointment be given to a person to divide a fund amongst the members of a particular class, the death of some members of that class before the exercise of the power will not prevent the donee of the power from exercising it. in favour of the surviving members of the class; even though, if the deceased persons had been alive, they must have had a share. Most of these cases on the subject were cited in the argument before me, but no one is, in my opinion, more decisive on this point than Woodcock v. Renneck (b). There a testator gave to the survivor of a gentleman and his wife power, by will, to divide a sum of stock amongst their children, in such shares and proportions as the survivor should think fit. At the decease of the testator, there were three children; but at the decease of the survivor of the donees of the power, there was but one child, the other two having

(a) 1 Ves. jun. 299.

died.

(b) 4 Beav. 190, and 1 Phil. 72.