A B MILLER Vs. FGFERGUSON

JUDGEMENT

(1.) (After stating the facts and the questions to be considered his Lordship proceeded to consider the law on the point.)

(2.) Law?In this case, I will deal with the law before dealing with the question of construction. The authorities to be considered are not many: Williamson V/s. Naylor (1838) 3 Y&C (Ex) 208, Alder-son V/s. Petrie (1873) 25 WR 361-n, Ashley V/s. Ashley (1875)1 Ch D 243; Ashley V/s. Ashley (1876) 4 ChD 757 and In re. Macdonald (1889) 59 LJ Ch (ns) 231, Wilson V/s. Church (1911) 106 LT 31 and the-following text-books: Daniel's Chancery Practise, pp. 890-2, 897-8; Seton, Edn. 7, forms 2417 and 2429 ; and English Rules of Court, Order 55, inter alia, Rules 56 and 65, and forms in appendix I, Nos.5 and 6, at pp. 1699 and 1701 of the 1931 rules. I will take these authorities in the above order.

(3.) In Williamson V/s. Naylor (1838) 3 Y andC (Ex) 208, there was a trust by will of one-fifth of the estate of the testator to be distributed rateably amongst 52 persons mentioned in the schedule to the will. It was held, and this was the crux of the case, that these persons were not legatees but creditors whose debts were revived by the will. The one-fifth amounted to a sum of ?3999. At p. 212 this amount is referred to as having been set apart for the creditors. Of the 52 creditors named in the schedule to the will, only 22 had come in and proved before the Master, and in the result these 22 creditors were allowed to receive and appropriate the whole amount towards satisfaction of their debts to the exclusion of the 30 who did not come in. The real point of the case is that, for reasons good or bad, the schedule to the will was not accepted as equivalent to proof of the debts and the Court actually found only 22 to be creditors. The reasons are indicated at p. 215 of the original report (inter alia that there was no knowing whether the debts had or had not been discharged). The principle applied is not different from that so clearly expressed in David V/s. Frowd (1833) 1 My andK 200, to which I shall again refer, namely, that the Court is perfectly entitled to distribute among those whom it "discovers" to the exclusion of other creditors whom it does not "discover" subject to certain reservations of the right in favour of those others.