ORD Vs. ORD

JUDGEMENT

(1.) This is an appeal against so much of the judgment and decree of Mr. Justice Phear, in the exercise of the original jurisdiction of the Court, as declares that the defendant is a trustee for the plaintiff of all the business, stock-in-trade, &c., of the testator, and directs an account of all the said business and of the furniture, and orders payment of the costs by the defendant. We have nothing to do with the other part of the decree which relates to the household furniture, jewels, &c. The only question we have to decide is. whether, under the terms of this will, the husband upon his marriage became the trustee of the wife, and is bound to account to her in respect of the said business from the time of the marriage to the time of the decree. The plaintiff in her plaint does not charge, as I understand it, that the husband was a trustee, or acted as a trustee for her, in respect of the business, until their separation; for she says, that, from the time of their marriage till the year 1867, when they separated, they lived in harmony and peace, and that the husband assisted her in the business. The husband, on the other hand, states that he considered the business as his Own, and therefore there is a conflict between the plaintiff and the defendant as to whether down to 1867 the husband carried on the business as his own, or whether he assisted his wife in carrying it on. But it appears to me that this is not very material, inasmuch as I think that, according to the true construction of this will, the stock-in-trade and the liberty to carry on the business were not bequeathed to the wife for her sole and separate use independent of any husband that she might afterwards marry.

(2.) It is clear that the testator, or those who prepared his will, knew the use of the words absolute use of the person to whom the bequest was made independent of the control of any husband with whom she shall intermarry. "Those words were used in the 2nd paragraph of the will with respect to the bequest to the piece, Jane Dowling, who was then unmarried. They were also used with regard to the bequest in the 3rd paragraph to his daughter, who was then a married lady; for in that bequest it was directed that his daughter should receive during her life the rents of the house at Barrackpore for her sole use and benefit independent of the control or debts of her present husband or any future husband with whom she shall intermarry."

(3.) Having used those words in the 2nd and 3rd clauses of the will, the testator omitted thorn wish regard to his wife in the 4th and 5th clauses immediately succeeding; and then again in the 6th clause of his will he used them in regard to his wife, and directed that the bequest in that clause should be for her own sole use, benefit, and disposal, irrespective of the debts or control of any future husband she may intermarry "with," so that he contemplated that she might marry again, and he provided against it in the 6th clause, as he had provided with respect to his niece and daughter in the 2nd and 3rd clauses.