[CHANCERY DIVISION]

In re STANLEY.

TENNANT v. STANLEY.

[1905 S. 2683.]

Will - Construction - Power to Invest in Stocks and Securities of Companies - Companies not registered in the United Kingdom.

A testator empowered the trustees of his will to invest moneys in (amongst other things) the "stocks, funds and securities (not payable to bearer) of any corporation or company, municipal, commercial or otherwise":-

Held, that the clause was not confined to the stocks, funds and securities of corporations and companies formed or registered in the United Kingdom.

The meaning of the word "company" explained.

SIR HENRY MORTON STANLEY, G.C.B., M.P., by his will dated November 29, 1899, after making certain specific and pecuniary gifts, devised and bequeathed his residuary real and personal estate and effects to trustees upon trusts for sale and conversion and out of the net income, during the joint lives of his wife and his adopted son, Denzil Morton Stanley, to retain certain annual sums, and subject thereto to pay the net income to the testator's wife for life for her separate use without power of anticipation, and after her death to hold the trust premises, as to one half for the adopted son if he should attain the age of twenty-one years, and as to the other half in trust for such person or persons and for such purposes as the testator's wife should (subject to a proviso thereinafter contained) by deed appoint, and in default of and subject to any such appointment, in trust for D. M. Stanley if he should attain the age of twenty-one years.

Clause 15 of the will was as follows: "I declare that my trustees may at their discretion invest any moneys liable to be invested under the provisions of this my will in their names in or upon any of the parliamentary stocks or public funds or in Government securities of Great Britain or India or any British colony or dependency or any foreign country or State, or upon freehold, copyhold, leasehold or chattel real securities in Great

Britain, but not in Ireland (such leasehold and chattel real securities to be upon hereditaments held for a term of which not less than fifty years shall be unexpired at the date of investment), or on life interests in real or personal property, together with a policy or policies on the life on which the property is held, or in the capital stock of the Bank of England, or in the stocks, funds and securities (not payable to bearer) of any corporation or company, municipal, commercial or otherwise, or in any annuity, whether permanent or terminable, and whether now existing or hereafter to be created, the payment of which is charged on the revenues of India, or in any other mode of investment for the time being authorized by English law for the investment of trust funds, and may at the like discretion vary or transpose any such investments (including the investments for the time being constituting the appropriated funds) into or for others of any nature hereby authorized."

The testator died on May 10, 1904, and an originating summons (to which Lady Stanley, his widow, and D. M. Stanley were defendants) was taken out by the trustees for the determination of the question whether upon the true construction of the will the power given by clause 15 enabled the trustees to invest the trust moneys in the stocks, funds or securities (not payable to bearer) of (a) any corporation or company formed or registered in the United Kingdom, but carrying on business abroad, and (b) any corporation or company formed or registered outside the United Kingdom.

Northcote, for the trustees, stated the facts and the questions arising on them.

R. J. Parker, for the tenant for life. There can be no doubt that the words include companies registered here although they carry on business abroad.

On the other point it is contended that the words include corporations and companies formed outside the United Kingdom.

There are only three kinds of corporations known to the law of England, viz., those established by royal charter, statutory corporations, and corporations by prescription. The testator's words are not to be so confined as to include only

those three kinds of corporations. Corporation is not the only word used: some meaning must be given to the word "company," and it is submitted that the words are wide enough to include municipal corporations and commercial or business-carrying-on companies abroad, although they are not corporations within the meaning of the English law. The word "company" in s. 161 of the Companies Act, 1862, has been held to include a company registered in France: Ex parte Fox. (1)

W. Ernest Hollams, for the infant. The investment clause does not include the stocks, funds or securities of corporations or companies formed or registered abroad. Where a testatrix directed money to be invested in "any of the public funds, or in Government or real or leasehold securities, or upon the stocks, shares or securities of any railway or other public company," Byrne J. held that "public company" meant a public company in the United Kingdom only: In re Castlehow. (2) As pointed out in that case, apart from the information of experts, the Court has no knowledge of its own as to the constitution of foreign companies.

The context of the will is against the inclusion of stocks of foreign companies.

[He also referred to Edwards v. Thompson. (3)]

R. J. Parker, in reply.

BUCKLEY J. No reason has been suggested by any counsel in the argument of the case, and no reason occurs to me, why a corporation or company formed or registered in the United Kingdom should not be within the words "any corporation or company, municipal, commercial or otherwise," merely because it carries on its business abroad. In my judgment the clause in question extends to the class referred to in part (a) of the summons, namely, to any corporation or company formed or registered in the United Kingdom, but carrying on business abroad. But there is more difficulty in answering the question whether the clause extends to the class referred to in part (b) of the summons, that is, to any corporation or company formed or

(1) (1871) L. R. 6 Ch. 176.

(2) [1903] 1 Ch. 352.

(3) (1868) 38 L. J. (Ch.) 65.

registered outside the United Kingdom. The words "any corporation" if found without a context might possibly - I do not say they would - mean a corporation which is such according to our law. But the words are "any corporation or company." The word "company" has no strictly technical meaning. It involves, I think, two ideas - namely, first that the association is of persons so numerous as not to be aptly described as a firm; and secondly, that the consent of all the other members is not required to the transfer of a member's interest. It may, but in my opinion here it does not, include an incorporated company. The words "corporation or company" here mean, I think, an incorporated body or an unincorporated body which is "municipal, commercial or otherwise," and which is of such a kind as not to be what is commonly called "a firm." The power is to invest "in the stocks, funds and securities (not payable to bearer) of any corporation or company, municipal, commercial or otherwise." If I were meaning to speak of the New York Central Railway Company of America or the Canadian-Pacific Railway Company, and wished to describe it by some one single noun substantive, what word could I use other than "company"? I could not say "firm"; I must speak of it as a "company." If I were to give to the words in the will the restricted meaning which I am asked to give by counsel on behalf of the infant, I should have to say that debenture stock of a great Canadian railway or the ordinary or preference stock of an American railway was not stock of a "company commercial or otherwise." It seems to me that all such undertakings are within the meaning of the words. The phrase "municipal, commercial or otherwise" must not be strained too far, but it does, I think, include any corporation or company of that kind.

It has been pressed upon me in argument that if the entire will is read, the words "any corporation or company" may mean only such as are English. I do not think there is any context in the will which is sufficient to control the words in that sense. I think I ought to give their full meaning to the words "any corporation or company, municipal, commercial or otherwise"; and I hold, therefore, that the trustees are at liberty to invest in the stocks, funds and securities (not payable to bearer) of any

corporation or company, notwithstanding the fact that it is not formed or registered in the United Kingdom.

Solicitors for all parties: Trower, Still, Freeling & Parkin.

F. E.