102 / 324
the term of years to the Crown because the word
" forfeited " in the Mortmain and Charitable Uses
Act, 1888, s. i (i), was to be construed as meaning
"liable to be forfeited" and accordingly the land
comprised in the lease would not vest in the Crown
unless and until Her Majesty took steps to enforce
the forfeiture.
Per Earl Jowitt :—The Court of Appeal had
decided in
Morelle p. Watenvorth
in which a leasehold
interest had been transferred to an Irish company
without licence to hold lands in mortmain that an
automatic forfeiture to Her Majesty had resulted
and the Court of Appeal rightly decided in the
present case, that they ought to follow this previous
decision. We have, therefore, to consider whether
Morelle, Ltd. v. Watertvortb
was rightly decided.
The consequences of the decision in that case are,
indeed, far-reaching.
It would follow that any
person holding a short unexpired residue of a
leasehold interest would merely have to transfer
that interest to a company without licence to hold
lands in mortmain to bring about the result that
the unexpired residue would be vested in Her
Majesty, so as to make Her Majesty liable under
the covenants contained in the lease. Such covenants
commonly involve an obligation to repair and, at
the end of a long lease, such covenants may, and
generally will, involve onerous burdens.
It is not
improbable, if this be good law, that many leasehold
interests involving onerous burdens will be trans
ferred indirectly to Her Majesty by the simple
expedient of transferring such interests directly to a
company without licence to hold lands in mortmain.
(Attorney-Generalv. Parsons
(1956). i
AllE.K.
65.)
Note :—The Court of Appeal had held that there
was an automatic forfeiture of the residue of the
term assignee! to Arffe, Ltd., notwithstanding that
the assignment was by registered disposition and
the terms of s. 80 and s. 23 of the Land Registration
Act, 1925.
In the House of Lords it was not
necessary, in view of the majority decision, that a
decision should be reached on this question. Two
opinions were expressed on it. Earl Jowitt doubted
the conclusion of the Court of Appeal, but Lord
Morton of Henryton dissenting, considered that
the Land Registration Act, 1925, did not negative
forfeiture. A consequence of the present decision
is, therefore, that
Morelle, Lid. v. Wakelmg
is over
ruled in so far as it followed the ratio decidendi of
automatic forfeiture, but stands as
regards
the
effect of s. 23 and s. 80 of the Land Registration
Act, 1925.
Must an executor or trustee inform beneficiaries of his
benefit under a mil or settlement ?
Yes, said the High Court. In exercise of a special
power of appointment given to her by a settlement
made in 1893, Mrs. M., by her will, appointed
property to the plaintiff and C. (without words of
severance).
In 1930 Mrs. M. died and the plaintiff
and C. (both of whom were then infants) became
immediately jointly entitled to the fund appointed
to them.
In 1934 counsel gave a written opinion
to the trustees that the plaintiff and C. took as
joint tenants.
The plaintiff attained his majority
in February, 1939 and C. in February, 1942. The
trustees of the settlement did not inform the plaintiff
of his rights under the settlement and appointment
and no part of the capital or income was paid to
him. On March i9th, 1942, C. wrote to her solicitor
asking him to pay the dividends into her account
at Martin's Bank, Kensington.
In September,
1942, C's share of the trust funds was transferred
to her.
Held by Havers, J., in an action for damages
for conspiracy:
(i) Immediately on his attaining
the age of twenty-one years the plaintiff became
entitled to receive one-half share of the income as it
became payable notwithstanding that the
joint
tenancy had not, as regards the capital, been severed,
(ii) The trustees of the settlement of 1893 were
under a duty to inform the plaintiff on his attaining
the age of twenty-one that he had an interest in
the capital and income of the funds subject to the
settlement of 1893; but there was no duty on the
trustees to give the plaintiff legal advice or to inform
him of his right to sever the joint tenancy, although
they would be bound to disclose on demand any
document relating to the trust including the opinion
of counsel,
(iii) The trustees were under a duty
to pay the .income of the plaintiff's share to the
plaintiff on his attaining the age of twenty-one
years without any demand by him;
and also to
pay the capital to the plaintiff and C. as joint tenants
on C.'s attaining the age of twenty-one years without
any demand by them, or, after severance of their
respective shares, to each of them without any
demand.
Per Havers, J.:—" Some argument was addressed
to me on the question whether or not the plaintiff
was entitled to income on attaining twenty-one. I
can see nothing in the Trustee Act, 1925, which
lays -down, or by inference indicates, that the trustees
ought not to pay income to the plaintiff on attaining
twenty-one, or the capital to him and his sister on
both attaining twenty-one.
So far as an executor is concerned, I am bound
by the decision of the Court of Appeal in
Re Lewis
(1904) 2
Ch.
656) to hold that there is no legal
duty on him to give notice of the terms of the legacy
to the legatee. I see no reason, however, to extend
this doctrine, which has no attraction for me on
94