[COURT OF APPEAL]

In re ROYLE.

ROYLE v. HAYES.

[1889 R. 6.]

Originating Summons - Jurisdiction - Rules of Supreme Court, 1883, Order LV., r. 3.

A testator directed his trustees to allow his wife to carry on his farming business during widowhood, and to pay to her during widowhood the income of his residuary estate. Four years after his death one of his executors took out an originating summons under Order LV., rule 3, against the other executor and the widow, asking whether a sum of £171, which the testator had handed to his widow shortly before his death, and which stood in her name at a bank, belonged to her or to his estate, and whether she was bound to render to the executors any account of the farming business. The widow objected to the jurisdiction as to the £171, but Kekewich, J., overruled the objection, and made an order declaring the sum to be part of the testator's estate:-

Held, on appeal, that there was no jurisdiction on originating summons to decide adversely to the widow that the sum belonged to the testator's estate, this not being a matter which could be decided in an administration suit, but, the widow assenting to have the case tried, the Court heard it on the merits, and held that the evidence shewed a good gift to the widow.

In re Davies(1) approved.

WILLIAM ROYLE, by will, dated the 18th of March, 1885, gave his real and personal estate to Alfred Royle and George Hayes upon trust that they should allow his wife to carry on his farming business during her widowhood, and to use for that purpose his farming stock, &c., and such part of his personal estate as should be necessary for that purpose, and should pay her the income of his estate during her widowhood, with ulterior trusts for his children. He appointed Alfred Royle and George Hayes executors and trustees. The testator died on the 29th of May, 1885.

On the 13th of May, 1889, Alfred Royle took out an originating summons against George Hayes and the widow Sarah Ann Royle,asking "that the following questions arising in the administration of the estate of the said William Royle may be determined

(1) 38 Ch. D. 210.

under the Rules of the Supreme Court, Order LV., rule 3, sub-sects. (a), (c), and (g), and relief given in respect thereof without an administration of the estate of the said William Royle (that is to say) (1) whether or no the sum of £171 15s. received by the said William Royle on or about the 24th of May, 1885, from Mrs. Hopein part payment of the purchase-money due from her in respect of a plot of freehold land purchased by her from the said William Royle, or any part of the said sum, belonged to the said William Royle and formed part of his estate at his death on the 29th of May, 1885; (2) whether, if the said sum of £171 15s., or any part thereof, belonged to the said William Royle at his death, the use of the same was or is necessary for carrying on his farming business; (3) whether the said S. A. Royle ought to render any, and if so, what account to the executors and trustees of the said William Royle in respect of the farming business of the said William Royle."

The testator was on his death bed when the £171 15s. was paid to him on the 24th of May, 1885. He handed it to his wife, who, during his life, placed it at a bank in her own name. She contended that he had given it to her absolutely.

The summons was heard before Mr. Justice Kekewich on the 1st of June, 1889.

E. S. Ford, for the summons.

Levett, for the Defendants, took a preliminary objection that there was no jurisdiction under Order LV. to decide the first question, and that an action must be brought against Mrs. Royleto recover the money.

KEKEWICH, J. :-

The Plaintiff, who is an executor, comes here for protection and might ask for administration of the estate, in which case, an account of the personal estate being directed, the claim might be adjudicated upon. I apprehend that the Court can decide under Order LV. any point which could be decided in an administration action, and the objection must be overruled.

The case was then argued upon the merits. Mr. Justice

Kekewich considered that Mrs. Royle had not established the gift to her, and made an order declaring that the £171 15s. formed part of the testator's personal estate at his death, and directing an account of what the residuary personal estate of the testator consisted. Further consideration was adjourned with liberty to apply in chambers. George Hayes and Mrs. Royle were ordered to pay the costs of the Plaintiff and of two parties served with the summons.

George Hayes and Mrs. Royle appealed from the whole order, but did not ask at the bar that the order for an account might be discharged. The appeal was heard on the 1st of November, 1889.

Levett, for the Appellants:-

We appeal on three grounds - (1) that there is no jurisdiction to try a case like this on originating summons; (2) that there is sufficient evidence of a gift inter vivos by the husband to the wife; and (3) that there has been no misconduct on the part of Hayes which can justify an order for costs against him.

As to the first point, this case does not come within sub-sects. (a), (c), or (g) of Order LV., rule 3. The question is one which could not be tried in an administration action, but must be the subject of a separate action by the executors against the wife. There is no jurisdiction to determine on this summons any question which could not have been determined in an administration action: In re Davies (1).

[He was then stopped by the Court.]

E. S. Ford, for the Plaintiff:-

The widow is legatee for life, and so the question comes under sub-sect. (a). The widow must be taken to have submitted to the jurisdiction, for she entered into evidence and argued the case on the merits, and the Court could act: Re Turcan (2). A very similar question was tried in an administration action in Fowkes v. Pascoe (3), and if triable in such an action it is triable on originating summons.

(1) 38 Ch. D. 210.

(2) Ann. Pr. 1889, p. 728.

(3) Law Rep. 10 Ch. 343.

[THE COURT then asked Levett whether he would assent to the Court deciding the question on the merits. Levett assented on the terms of the present order as to costs being discharged, and an affidavit filed since the hearing before Mr. Justice Kekewichbeing admitted. These terms were agreed to, and the case was argued on the question whether a gift to the wife was made out.]

COTTON, L.J. (after stating his reasons for coming to the conclusion that a gift to the wife was made out, proceeded):-

Mr. Justice Kekewich dealt with this originating summons as giving him jurisdiction to decide adversely to the widow that she was not entitled to this sum of money, but that it belonged to her husband's estate. The summons gave him jurisdiction to decide points relating to the administration of the estate, questions arising between legatees and the executor. This is not a question between the executor and a legatee as such, but a question between the executor and a person who holds money which he alleges to belong to the estate of the testator, and which she alleges to be her own. In an administration suit the regular course would have been, after directing accounts of the personal estate, to add a special inquiry whether this sum of money had been given to the widow. She then, if she thought fit, could come in and say, "I submit to the jurisdiction, and am willing to have the question tried under this inquiry as if an action had been brought against me." But if she did not do so, there would be no jurisdiction to decide adversely against her in the administration action, that she was not entitled to the money. She has submitted to the jurisdiction before us, and we have therefore decided the case on the merits. The declaration and the order as to costs must be discharged, and the Plaintiff must pay the costs of the appeal and all the costs below, except such as would have been incurred if the summons had only asked for an account of the residuary estate.

BOWEN, L.J. :-

I am of the same opinion; and should not have added anything had we not been differing from the Court below. As regards jurisdiction, the case is one which could not be decided

on originating summons adversely and without consent; it does not come within Order LV. We were asked to apply the doctrine of Re Turcan (1), but all that was there decided was that the bringing a claim gives the Court jurisdiction as against the claimant, - that he cannot invoke the aid of the Court, and then if the decision is against him, appeal on the ground that the Court had no jurisdiction. There was therefore no jurisdiction in the present case; but as the widow has assented to our hearing the case on the merits, we have done so. [His Lordship then went into the evidence, and stated his conclusion to be that the gift was established.]

FRY, L.J. :-

I am of the same opinion on both points. Order LV. was not intended to give jurisdiction except as to matters which could be decided in an administration action. I entirely agree with the view taken by Mr. Justice North, in In re Davies (2). [His Lordship then went into the merits, and stated his conclusion to be that the gift was established.]

Solicitors: Bower, Cotton & Bower, agents for Vaughan, Cheadle;Yeilding, Barlow & Piper, agents for Cobbett, Wheeler & Cobbett. Manchester.

(1) Ann. Pr. 1889, p. 728.

(2) 38 Ch. D. 210.

H. C. J.