London Chartered Bank of Australia v William George Lempriere and Others
| Jurisdiction | UK Non-devolved |
| Judgment Date | 06 February 1873 |
| Date | 06 February 1873 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 574
ON APPEAL FROM THE SUPREME COURT OF THE COLONY OF VICTORIA.
Mews' Dig. tit. Banker, IV. Customers' Accounts, 1. Relation to Customer; tit. Fraud and Misrepresentation, IV. Practice, 6. Evidence and Onus of Proof; tit, Husband and Wife, IV. Wife's Property, A. Separate Property, 1. Generally, i. Words sufficient to create, vi. Money at Bank, 4. Wife's Debts and Liabilities, a. Ante-nuptial, b. Post-nuptial, i; tit. Powers, II. Creation, c. Property or Power, 3. Life Interest with Power superadded. S.C. L.R. 4 P.C. 572; 42 L.J. P.C. 49; 29 L.T. 186; 21 W.R. 513. See Adamson v. Hammond, 1873, L.R. 3 P. and D. 147; Outram v. Hyde, 1875, 24 W.R. 268; Mayd v. Field, 1876, 3 Ch.D. 593; National Bank of Australia v. United Hand in Hand and Band of Hope Co., 1879, 4 App. Cas. 391; Ex parte Jones, In re Grisell, 1879, 12 Ch.D. 490; In re Harvey's Estate, Godfrey v. Harben, 1879, 13 Ch.D. 216; Pike v. FitxGibbon, 1881, 17 Ch.D. 466; In re Lady Hastings, 1887, 35 Ch.D. 101; In re Roper, Roper v. Doncaster, 1888, 39, Ch.D. 489. See also Married Women's Property Act, 1882 (45 and 46 Vict. c. 75).
IX MOORE N.S., 426 LONDON CHAE. BK. OF AUSTRALIA V. LEMPRIERE [1873] [426] ON APPEAL FROM THE SUPREME COURT OF THE COLONY OF VICTORIA. THE LONDON CHARTERED BANK OF AUSTRALIA,-Appellant; WILLIAM GEORGE LEMPRIERE and Others,-Respondents * [Feb. 4, 5, 6, 1873]. The property of a married woman, settled by an ante-nuptial Settlement for her separate use for life, with remainder as she should by Deed or Will appoint, with remainder in failure of appointment to her Executors or Administrators, is an absolute settlement for her sole and separate use, without restraint or anticipation, and vests in equity the entire corpus in her for all purposes. A., a Widow and the Administratrix of her deceased Husband (who had died intestate), and entitled to Dower as to his real estate, and to a third of his personal estate, being about to contract a second marriage, executed with her intended Husband a Settlement, whereby she settled the estate she was so possessed of and entitled to, to her sole and separate use, with power of appointment by Deed or Will, and with his consent gave a Letter instructing her Bankers to keep separate accounts, and to consider any private overdraft by her on her own account secured by the administrative deposits in their hands. At this time two sums of 6000 and 8000 were in deposit on such account, and subsequently various other sums were, from time to time, paid in by her to the same account, and placed at interest with the Bank, who allowed her to overdraw her private account on the strength of the arrangement so made. By her Will she executed the power of appointment reserved to her by the Settlement, and having at the time of her death overdrawn her private account to a considerable amount, the Bankers claimed, as against the parties interested under the Will, to retain the sums so paid into their hands, on account of the administrative account, and especially the sums of 6000 and 8000, so deposited with them, in payment of the sums due to them on account of the overdrafts made by her on her private account, and brought a suit in the Supreme Court of the Colony of Victoria to enforce such a lien. The Supreme Court dismissed the suit. Held, by the Judicial Committee, reversing such decision, that, whether or not the Bankers had notice of the Settlement (which fact was uncertain) the Letter of instruction to them by A. was a valid execution of the right reserved by her, as regarded the two sums of 6000 and 8000 then in their hands, and in the absence of fraud gave the Bankers a lien on those sums for any future overdraft that might be made in accordance with the terms of such Letter. The dictum of Lord Justice Turner in the case of Johnson v. Gallagher (3 D.F. and J., 494), as to the liability of the separate estate of a married woman for debts contracted with reference to such estate, approved and adopted. The case of Shattock v. Shattock (Law Rep. 2 Eq., 182) dissented from [9 Moo. P C (N.S.) 451-456]. If the relief sought by the Bill is based on fraud, the failure to prove it is fatal; but if by striking out of the Bill the charge of fraud there is sufficient equity stated and proved, and the charge of fraud is only subsidiary, it is a matter only affecting costs [9 Moo. P.C. (N.S.) 460, 461]. This appeal was brought from a decree of the Primary Judge in Equity of the Supreme Court of the Colony of Victoria, dismissing the Appellant's [427] Bill, and also from a decree of the full Court on appeal dismissing an appeal from that decree with costs. The question arising on the appeal was, whether the Appellant, by virtue of a Letter, dated the 4th of April, 1862, was entitled to a lien on the share of Mrs. Aitken, deceased, in the estate of her first Husband, Jeremiah George Ware, late of Koort Koort Nong station, in the Colony of Victoria, and in particular on two sums of * Present:-The Lord Justice James, Sir Barnes Peacock, the Lord Justice Mellish, and Sir Montague Edward Smith. 574 LONDON CHAR, BK. OF AUSTRALIA V. LEMPRIkRE [1873] IX MOORE N.S., 428 8000 and 6000, deposited by her with the Appellant's Bank, notwithstanding a Settlement made on her second marriage, and her appointment by Will in exercise of a power in such Settlement contained. The Appellant's Bank was incorporated by Royal Charter, and carried on the business of banking in the Colony of Victoria. The several Respondents were the Trustees of the Settlement made on Mrs. Aitkin's second marriage; James William Manifold Aitkin, her second Husband, [428] and William George Lempriere, the Executors and Trustees of her Will; the children of Mrs. Aitkin by her second Husband; the legal personal representative of Jeremiah George Ware of the estate not administered by Mrs. Aitkin, the original Administratrix; the Receiver appointed in a suit of "Ware v. Ware" for the administration of Jeremiah George Ware's estate, instituted in the Supreme Court of the Colony of Victoria; the six children of Mrs. Aitkin by her first Husband; and the Trustees of the Settlement executed on the marriage of Mary Hickling, one of such children, with Frederick James Hickling, and which comprised her interest under her Mother's second marriage Settlement and Will. The Respondent, the National Bank of Australasia, was the Assignee of a legacy of 5000, given to James William Manifold Aitkin by Mrs. Aitkin's Will; and the Official Assignee of James William Manifold Aitkin, whose estate was, on the 16th of May, 1870, placed under sequestration for the benefit of his Creditors, was also a Respondent. The material facts of the case were these : - J. G. Ware died intestate on the 2nd of October, 1859. His personal estate was of great value, and consisted chiefly of stations or runs, and stock and other chattels thereon, to one-third share of which Anne Young Aitkin was entitled as his Widow. He also owned other real estate, in which Anne Young Aitkin was entitled to dower. On the 16th of November, 1859, Letters of Administration of the personal estate of the Intestate were granted by the Supreme Court of the Colony of Victoria to his Widow, afterwards Mrs. Aitkin. In the month of March following a suit was insti-[429]-tuted in that Court in its equitable jurisdiction by the Respondent, J. G. Ware, one of the children of Mrs. Aitkin by her first Husband, for the administration of the estate of the intestate, which is still pending. By an Order made therein on the 14th of March, 1865, the Respondent, Joseph Ware, was appointed Receiver and Manager of the rents and profits of the real estate and stations of the Intestate. During her widowhood, Anne Young Ware kept two accounts with the Appellant's Bank at the Geelong branch. One was a private account, and was opened and kept simply in the name of Anne Young Ware, and the other was an administration account, and was opened and kept by her as Administratrix of the estate of the Intestate in the name of " Anne Young Ware, Administratrix." On the 9th of March, 1860, Anne Young Ware authorized the Bank to honour cheques of her Son, the Respondent, John Ware, who was her Agent in the management of the Intestate's estate, drawn on her administration account. On the 20th of March, 1862, Anne Young Aitkin, then Anne Young Ware, Widow, intermarried with the Respondent, James William Manifold Aitkin. The share of Anne Young Aitkin in the personal estate of the Intestate had not been ascertained at the time of her second marriage, and it was not, in fact, ascertained until the Master in Equity made his general report in the suit of " Ware v. Ware," on the 20th of December, 1865, but all the debts of the Intestate had then been paid, and she was then to the knowledge of the Bank entitled to a large sum in respect of such share, and was also then entitled to a further sum for arrears of rent or income, in respect [430] of her dower in the real estate, of which there had been no assignment. In contemplation of such marriage, there was executed a Settlement, dated the 19th of March, 1862. By this Settlement Anne Young Aitkin with the privity and consent of James William Manifold Aitkin, assigned unto William George Lempriere and William MacRobie all her right and title to Dower in the real estate of the Intestate, and all income then or thereafter to become due to her in respect thereof, upon trust that W. G. Lempriere and W. MacRobie, or other the Trustees or Trustee for the time being of the Settlement, should during the life of Anne Young Aitkin pay to her, for her sole and separate use, but without power of anticipation, all moneys which might come to their hands under the assignment 575 IX MOORE N.S., 431 LONDON CHAR. BK. OF AUSTRALIA V. LEMPRIERE [1873] and after the death of Aime Young Aitkin, as to all...
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