1832. Ex parte TINDAL. also of the distributive share, pro tanto, of her husband's estate; a question on the point of double satisfaction. Many similar cases have occurred, all of which were considered in Goldsmid v. Goldsmid. (a) But we do not form our opinion upon the technical ground that an action of debt will lie in point of form, but upon the substance and effect of an absolute covenant, that a man's executors shall pay a sum of money to certain persons upon certain trusts, which, in our opinion, constitutes a debt. Then, if it be a debt contracted, there is no doubt but it is payable on a contingency. There is one contingency as to the distance of time at which it is payable, depending upon the life of the bankrupt; and another, whether the wife or any of the children be alive at the death of the bankrupt, so as to be entitled to the benefit of it. It is possible, that the contingency as to who shall have the benefit of it, may never happen at all, which would be the case if the wife should be dead, and there should be no children at the death of the bankrupt. But it has been urged, that this is not a contingent debt within the meaning of the act of parliament, because it is uncertain whether the debt will ever be payable or not. We think, however, that uncertainty affords no reason why it should not: neither the words nor the spirit of the act require such a restriction upon contingent debts. It surely would put too narrow a construction upon the words of this act, to hold that they are to be confined to cases where the event upon which the contingency rests must happen some time or other; and that because such event may never happen, the debt is not to be taken as payable on a contingency; for though the debt may never be paid, it is nevertheless payable if the contingency does happen, and as such it (a) I Swans. 211. is, strictly and properly speaking, payable on a contingency. One of the classes of contingent remainders is, where the contingency may never happen at all; and it is to be presumed that the legislature in using the word contingency, meant that it should apply to such cases as upon other occasions are held to fall within the meaning of that term. Before the late act of parliament, a very extensive set of creditors claiming under marriage articles had, on various occasions, applied to prove debts under commissions of bankrupt, as appears by the cases of Tully v. Sparkes (a), Ex parte Caswell (b), Ex parte Greenaway (c), Ex parte Groome and Ex parte Winchester (d), Ex parte Mitchell (e), Ex parte Barker (g), Ex parte Alcock (h), Ex parte Taaffe (i), and that class of In many of these cases expressions are used of the hardship of trustees under marriage settlements not being able to prove under commissions of bankrupt. And there can be little doubt but that the legislature had in view this numerous class of cases of trustees under marriage settlements: and we think the words of the present act of parliament are sufficient to reach these cases. cases. But the principal difficulty which has been urged in argument, is, that no valuation can be made by the commissioners within the meaning of the act. If the contingency depends upon the lives of persons in existence, and the order of time in which the various individuals may die, such contingencies are clearly reducible to a matter of calculation, and a valuation may be made of the present worth of the debt; but if the valuation depends upon particular events, which (a) 2 Ld. Raymd. 1546. (b) 2 P. Wms. 497. (c) 1 Atk. 113. (d) 1 Atk. 115. E e 2 (e) 1 Atk. 120. (g) 9 Ves. 110. may 1832. Ex parte TINDAL. 1832. Ex parte may or may not take place, and upon the lives of persons not now in existence, and where it is uncertain whether any such persons will ever come into existence, and if any do, it is still uncertain how many there may be, and the valuation is to be made upon a contingency depending on such a complication of events, then, indeed, it may be admitted that no valuation could be set upon it, as there would be no possibility of bringing such a case within any rules of calculation. And in this particular case, if the calculation must necessarily depend on how many persons there should be connected with there being any children of this marriage, or upon the number of such children, if any, or on the time of the death of these uncertain children, then we should have thought that no valuation could be made of the debt in question, so as to admit it to proof. But we think the valuation is not to depend upon the fact of there being any future children of the marriage, or upon the time of their death. It appears to us such calculation ought to be made merely with reference to the time of the bankrupt's death; and that the valuation is to be simply this, the present worth of 4000l., payable twelve months after the death of the bankrupt. The settlement contains a positive covenant that the debt is to be paid to the trustees at the end of twelve months after the death of the bankrupt. The trustees are, therefore, entitled to receive the whole at that time, as an absolute debt to themselves. They are directed, after receiving it, to lay out the money in securities mentioned in the settlement, and apply the interest and principal in the way therein directed, and in the first instance, the wife is to have the whole for her life. That would be the state of things if Smith had not become a bankrupt. Then how is it altered by the bankruptcy? Suppose the debt to the trustees had not been contingent and had been payable immediately, the trus tees But tees would have proved for the whole debt, without refer- One argument adduced against admitting the present proof is, that this may, in certain events, be a proof for the benefit of the husband, and that, therefore, it cannot be received. If a proof was made for the immediate benefit of the husband, it would be nugatory to allow it to be made, because the benefit of it must go back to the But if, in the multiplied limitations of a marriage settlement, some benefit may eventually arise to the husband, there can be no reason why the whole estate. 1832. Ex parte TINDAL. 1832. Ex parte TINDAL proof should on that account be rejected. Here there are two ways by which the husband might be benefited; one, if the husband should survive the wife and there should be no children. In that case, the money received as the dividends, would go back to the husband's estate; but then the proof would not be considered as having been made for the benefit of the husband, but the whole proof would fall to the ground, and be as if it had never taken place; because the trusts of the settlement, as far as relate to the sum of 4000l., would not come into operation till after the death of the husband. Again, if the wife should die in the lifetime of the husband, and there should be children who survived the husband, but they should die before they acquired vested interests, then, the husband having survived the wife, his executors would be entitled; but that collateral contingent interest to his executors could not be considered as rendering the proof a proof for the benefit of the husband so as altogether to exclude it; on the contrary, such beneficial interest, vesting in the husband's executor, would form part of the estate of the bankrupt. The case Ex parte Grundy (a) was nearly similar to the present; and in that case the trustees were allowed to prove. But as the objection now under consideration was not made there, and the case was determined on the retrospective operation of 6 G. 4. c. 16., that case cannot be adduced as an authority. Upon the whole, we think the demand of the trustees is proveable, upon the grounds and principles which we have above stated. (a) 1 Mont. & M'Arthur, 293. |