IN CHAMBERS.

8th and 9th January, 1896. Re ALFRED SHAW, Ex parte Hughes. Insolvency Act of 1874, s. 47-Creditor's petition— Good petitioning creditor-Legal and beneficial Where the legal and beneficial ownerships of a debt are in owners of a debt as petitioning creditors.

different persons, a petition for adjudication of the debtor as an insolvent can only be presented by both the owners, and not by either of them singly.

result which would not otherwise occur. There favour carried into execution. But it must be is nothing in the Act which directly suggests an understood that they take as legatees, described intention to interfere with freedom of testamentary by the term 'creditors," and not under the disposition. The provisions of s. 6, already general law which entitles creditors to recourse mentioned, which protects assignments of policies against the estate of a deceased debtor. made for valuable consideration, were referred to Solicitors for plaintiffs: J. F. Fitzgerald. in argument as indicating that, but for these Solicitors for defendants: F. G. Hamilton. provisions, s. 2 would have had the effect of invalidating such assignments, and that as they had been especially protected, while testamentary dispositions in favour of creditors were not mentioned, the latter were invalidated. I do not think, however, that this would be a legitimate inference to draw, even if s. 6 were not otherwise REAL, J. necessary. But that section might well be introduced, not only for the purpose of removing doubts and of showing that the intention of the Legislature was not to interfere with the freedom of disposition of the insured himself, but also to protect the rights of an equitable assignee, or assignee of a policy under a partial assignment, although the formal right to recover the policy In re Adams, Ex parte Culley (9 Ch.D., 307) and In re moneys were vested in the personal representatives. So far, therefore, from finding in s. 2 an explicit and unambiguous expression of intention to interfere with freedom of testamentary disposition, I am of opinion that the Act does not in any way affect or deal with the power of disposition of the insured himself either in his lifetime or by will, but that the provisions of the second section have merely the effect of depriving creditors of that right of recourse which, under the general law, they would have against the policy during the life of the insured, and against the policy moneys as legal assets in the hand of his personal representatives. In the present case the meaning of the words of the will admits of no doubt. It is not necessary to consider whether a mere charge of debts would have a similar effect, but I am not to be understood as suggesting any doubt on that point. The result, in my judgment, is that the gift of the policy moneys as part of the testator's estate for the benefit of his creditors as a class is valid, and that they are entitled, as objects of his bounty, to have the trusts of the will in their

Hastings, Ex parte Dearle (14 Q.B.D., 184) followed. PETITION by James Hughes, a creditor, for the adjudication of Alfred Shaw, of Brisbane, as an insolvent.

On the evidence filed by the parties it appeared that the petitioning creditor's debt was a judgment debt for £506, being part of a sum of £1,012 due by respondent and another on a guarantee given by them to Henry Hughes, of whose will the petitioner was the executor. It appeared that the respondent had failed to point out property to satisfy this judgment, but that before the presentation of the petition the petitioner had assigned all his beneficial interest in the debt to a third person, Mr. W. H. Sprigg. All the material facts appear fully in the judgment of the learned judge.

Macgregor for petitioning creditor.
Lukin for respondent.

REAL, J. In this case the petitioning creditor had under an agreement a possible claim against the respondent. That claim he assigned to a man named Mr. Sprigg. The evidence shows

same nature in both cases. And I think that, if shall the moneys payable under the policy be possible, some effect is to be given to the words liable to be made available," &c. Upon this it "property and interest" as indicating something may be observed that the word "liable" imports not the same as that which would have been the idea of a risk to which the thing spoken of is denoted by the words "moneys payable," &c., exposed, and which may befal it, at the option of standing alone, although no doubt for some some power over which the person interested purposes, and in some contexts, the two expressions has no control. If, then, the Legislature desired might be synonymous. Now the property and to enact that a testator should not be able by his interest of the insured himself includes both the will to direct that policy moneys, his own formal or legal right to enforce the contract property, should be applied in payment of his contained in the policy, and also the beneficial debts, they have certainly chosen a singular form interest in the policy moneys when received. of words to express that idea. For, according to The title of the personal representatives of a the argument, the property which is forbidden to deceased person, whether he is intestate or not, be applied in payment of debts is the policy is derived from the grant of administration or moneys, and the forbidden mode is the testator's probate. By virtue of that grant the personal will. The enactment then is to be read, "The estate is vested in them, upon trust for the next moneys payable under a testator's life policy shall of kin or legatees, subject to a charge of the debts not be liable to be made available by his will of the deceased. His property and interest for the payment of his debts." That is to say, is different from that of the beneficial the testator's property shall not be exposed to the owners, and is limited to the right of legal risk of the testator's volition. So much for the dominion or control. This right is exactly word "liable." The words "made available " analagous to the legal estate of a trustee to whom raise almost equal difficulties in the way of Mr. land is devised in trust. In either case the Rutledge's contention. For all a testator's property in question is charged by law with the property was already by law available for the debts of the deceased, and the legal estate payment of his debts. To speak, therefore, of a formally vested in the trustee may be taken for testator's will as a means by which it is made so the purpose of paying them. I think that the available, would be, to say the least, a very term "property and interest" expresses this legal inaccurate form of expression. If language were estate as distinguished from the whole legal and found in a statute that was only susceptible of equitable interest in the policy moneys, and that one construction so as to give the enactment the effect of the enactment is therefore merely to any effect, it would be the duty of the court to extinguish the charge of debts to which that legal construe it accordingly, however inaccurate or estate was subject, so leaving the whole benefit of inapt the language might appear; but I think that the estate to the legatees or next of kin. There such an apparent inaccuracy or inaptness should can be no doubt that this is the effect of the lead the court to consider whether there is not enactment in the case of intestacy. I see no some other construction that would give effect to sufficient reason for a different conclusion in the the will of the Legislature. If, therefore, the gramcase of a will. This conclusion is confirmed by matical construction now under consideration is to be a consideration of the operative words by which adopted, I think the use of the words "liable" the protection is afforded, and to which I shall and "made available" must be taken of themhave to call special attention in dealing with the selves to indicate that the protection is against second of the two possible constructions already some risk that might arise from some person mentioned, which I proceed to do. Adopting other than the testator himself, and against some that construction, the enactment will read "nor act that would have the effect of producing a

COOPER, J. I concur.
REAL, J.: I also concur.

Solicitor for plaintiffs: J. F. Fitzgerald.
Solicitors for defendants: F. G. Hamilton. T

REAL, J.

IN CHAMBERS.

8th and 9th January, 1896. Re ALFRED SHAW, Ex parte HUGHES. Insolvency Act of 1874, s. 47—Creditor's petition— Good petitioning creditor-Legal and beneficial Where the legal and beneficial ownerships of a debt are in owners of a debt as petitioning creditors. different persons, a petition for adjudication of the debtor as an insolvent can only be presented by both the owners, and not by either of them singly.

In

result which would not otherwise occur. There favour carried into execution. But it must be is nothing in the Act which directly suggests an understood that they take as legatees, described intention to interfere with freedom of testamentary by the term creditors," and not under the disposition. The provisions of s. 6, already general law which entitles creditors to recourse mentioned, which protects assignments of policies against the estate of a deceased debtor. made for valuable consideration, were referred to in argument as indicating that, but for these provisions, s. 2 would have had the effect of invalidating such assignments, and that as they had been especially protected, while testamentary dispositions in favour of creditors were not mentioned, the latter were invalidated. I do not think, however, that this would be a legitimate inference to draw, even if s. 6 were not otherwise necessary. But that section might well be introduced, not only for the purpose of removing doubts and of showing that the intention of the Legislature was not to interfere with the freedom of disposition of the insured himself, but also to protect the rights of an equitable assignee, or assignee of a policy under a partial assignment, although the formal right to recover the policy moneys were vested in the personal representatives. So far, therefore, from finding in s. 2 an explicit and unambiguous expression of intention to interfere with freedom of testamentary disposition, I am of opinion that the Act does not in any way affect or deal with the power of disposition of the insured himself either in his lifetime or by will, but that the provisions of the second section have merely the effect of depriving creditors of that right of recourse which, under the general law, they would have against the policy during the life of the in ured, and against the policy moneys as legal assets in the hand of his personal representatives. In the present case the meaning of the words of the will admits of no doubt. It is not necessary to consider whether a mere charge | of debts would have a similar effect, but I am not to be understood as suggesting any doubt on that point. The result, in my judgment, is that the gift of the policy moneys as part of the testator's estate for the benefit of his creditors as a class is valid, and that they are entitled, as objects of his bounty, to have the trusts of the will in their

re Adams, Ex parte Culley (9 Ch.D., 307) and In re Hastings, Ex parte Dearle (14 Q.B.D., 184) followed. PETITION by James Hughes, a creditor, for the adjudication of Alfred Shaw, of Brisbane, as an insolvent.

On the evidence filed by the parties it appeared that the petitioning creditor's debt was a judgment debt for £506, being part of a sum of £1,012 due by respondent and another on a guarantee given by them to Henry Hughes, of whose will the petitioner was the executor. It appeared that the respondent had failed to point out property to satisfy this judgment, but that before the presentation of the petition the petitioner had assigned all his beneficial interest in the debt to a third person, Mr. W. H. Sprigg. All the material facts appear fully in the judgment of the learned judge.

Macgregor for petitioning creditor.
Lukin for respondent.

REAL, J. In this case the petitioning creditor had under an agreement a possible claim against the respondent. That claim he assigned to a man named Mr. Sprigg. The evidence shows