Payment of Pecuniary Legacies
| Date | 01 November 1955 |
| Published date | 01 November 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00327.x |
598
THE
MODERN
LAW
REVIEW
VOL.
18
and his trustee in bankruptcy:
Thompson
v.
Earthy
In;
Bendall
v.
MacWhirter.14
(2)
Alternatively, that the wife had a true equitable interest,
but that in his discretion the judge was prepared to make
an order
for
possession:
Jess B. Woodcock
Q
Sons Ltd.
v.
Hobbs.15
If
in addition the mortgage had been in the common form
employed in
Barclays Bank Ltd.
v.
Bird,lB
and embodied a power
of attorney in favour of the mortgagee to execute a legal mortgage,
the subsequent clothing of the equitable interest with a legal
estate would have put the mortgagee in the virtually impregnable
position of a legal bona fide purchaser.
As
it
is, the conception of the licence to occupy land is again
subdivided. The contractual licence is apparently a true equitable
interest,17 while that arising from desertion is a mere equity even
when fortified by
an
order under section
17.
One sympathises with the judge who
is
faced with the task of
determining hard cases in this rapidly developing field; but the
divergence of judicial opinion places a heavy burden upon the
practitioner, the more
so
when, as in this case, the decision
impinges upon the existing rules. In
Westminster Bank Ltd.
v.
Lee
Is
the rules of equitable priorities have been affected; we
must now reconsider each equity ‘anew for the purposes of priority,
in the light of the decision that the deserted wife’s licence to occupy
the matrimonial home is to be classified with a mere right to upset
a transaction.
By way of postscript, it may well be asked what object there
can now be in the wife’s applying for an order under section
17
of
the Married Women’s Property Act,
1882,
for possession of
the matrimonial home. Since
Westminster Bank Ltd.
V.
Lee
it
would seem to operate only as a judicial recognition of her rights
without affording her any additional protection.
HAMISR
R.
GRAY.
PAYMENT
OF
PECUNIARY
LEGACIES
A
TROUBLESOME
question arises where
a
testator has both given
pecuniary legacies and left part of his estate undisposed of.
Do
the next-of-kin take the undisposed-of part (subject only to
its rateable share of the pecuniary legacies),
or
do they take
it
subject to all the pecuniary legacies? Until the decision of
Mr.
13
[1951]
2
K.B.
596.
14
[1952]
2
Q.B.
466.
15
[1955]
1
W.L.R. 152; [1955]
1
All E.R. 445.
16
[1954]
Ch.
274.
17
Errington
v.
Errington
[1952]
1
K.B.
292
(C.A.),
but
cf.
[1955]
3
W.L.R.
18
[1955]
3
W.L.R.
376; [1955]
2
All
E.R.
883.
376, 382
and
[1955] 2 All E.R. 883, 888.
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