manner in whatever way her authority to do so was acquired, and as she had an absolute power over it, that supports the will, although the special power never arose. The observations in Sugden on Powers (p. 309, 5th edit.) on Dobbins v. Bowman, show that the learned author considered it an authority to this extent. He there says, " But if the testator exercised a power "by will, and it turn out that the power was either not well cre"ated, or was defeated by the happening of a contingent event "subsequently to the will, the divisor's interest at the time of "the will shall come in aid of his disposition, for in a will "there are no particular words required to pass the estate, "but any words that show the intention of the testator are "sufficient." I must therefore decree probate as prayed. Dr. Deane, Q.C., asked for the defendant's cost out of the estate, which the learned Judge granted. 1859. March 23. SOUTHALL AND V. JONES. In the Goods of HENRY BISHOP (deceased). March 30. Administration.-Presumption of Death at Sea.-Lapse of In the Goods of Time insufficient.—Inquiries after Crew of lost Vessel. H. B., on the 20th of October, 1858, sailed in command of a vessel from Demerara bound to London. Nothing having since been heard of the vessel, she was supposed to have foundered at sea with all her crew. On application for a grant of administration to the widow of H. B.: HELD, that the time which had elapsed since the vessel sailed being only five months, the application was premature; that inquiry should be made at Demerara whether anything had been heard of any of the crew who might have survived. Henry Bishop, master mariner, sailed on the 20th day of July, 1858, from Cork, in command of the brig' Zarifa,' bound on a voyage to Barbadoes and Demerara, and from thence back to London. The brig arrived at Demerara towards the end of September, 1858, and on the 23rd day of October following sailed from Demerara with her master (Henry Bishop) on board, bound for London. Since that time neither the HENRY BISHOP. 1859. March 30. In the Goods of at sea. brig, the master, nor any of the crew had been heard of, and it was supposed that the brig, with all on board, had perished J. Eagle, a friend of the deceased, who was at Demerara when the 'Zarifa' sailed, deposed that a hurricane had passed over the West Indies five or six days after the vessel sailed from thence. The vessel was insured, and one of the part-owners of the vessel deposed that the underwriters were satisfied of the loss, and had arranged for the payment of the amount insured thereon. Mr. Swan moved the Court to decree letters of administration of the effects of the said Henry Bishop, deceased, as having died in or since the month of October, 1858, intestate, to be granted to Emma Bishop, his widow. SIR C. CRESSWELL: The underwriters have not yet proved their belief in the loss of the vessel by payment of the policy. Independently of this, I think probably the vessel is lost, but it does not appear that any inquiries have been made at Demerara, as to whether any of the crew have arrived there, or have been heard of. I think also you have made your application too early, and that it would not be safe as yet to grant letters of administration. It is only five months since Henry Bishop sailed from Demerara; he may have been picked up by some ship, and carried to some distant port, whence he has not hitherto been able to make his way home. I am not aware that the Court in a case of this nature has ever acted so speedily. I reject the motion. Mr. Swan: Will the Court name any time when it would feel able to grant the motion? SIR C. CRESSWELL: No; I cannot name any time. Inquiries ought to be made after any of the crew who may have survived. Motion rejected. IREDALE v. FORD AND BRAMWORTH. Administration.-Bankrupt.-Majority of Interests. Practice. Of the two rules for the guidance of the discretion of the Court in granting administration, where parties in equal degree dispute it, viz. "that, cæteris paribus, the male is preferred to the female," and "that the grant will follow the majority of interests"-the latter is the more stringent. The fact of a man having been bankrupt many years since is not to be pressed against him; but when he has been a second time a bankrupt, and under the second bankruptcy no dividend has been paid, quære, whether such bankrupt could be said to have any interest in the intestate's estate? The grant being made to persons representing three-fourths of the interest, their sureties were ordered to justify to the extent of the other fourth; their costs were directed to be paid out of the estate, and no order was made as to costs of the other party. This was a question heard on petition and affidavit, as to the administration of the effects of T. Iredale, who died intestate, a widower, without child or parent, leaving William Iredale his brother, Sarah Ford, wife of T. Ford, Elizabeth Bramworth, widow, and Mary Richardson, widow, his sisters, his only next of kin, and the only persons entitled in distribution. The deceased had been for many years a lunatic, and William Iredale had since 1838 been the duly appointed committee of his person. Dr. Waddilove and Mr. Malcolm Kerr applied for the grant to be made to William Iredale the brother, and relied on the maxim, that by the practice of the Court the male is preferred to the female, as more likely to be acquainted with and able to conduct business. Chittenden v. Knight, 2 Lee, 559. As to the fact of his having been twice bankrupt, in 1827 and 1837, and no dividend paid under the last bankruptcy, Bell v. Timiswood, 2 Phill. 22, would be relied on by the other side; that case was decided in 1812, and there is no reported case since which shows that it has been followed. Iredale offered two unexceptionable securities for the due administration of the estate. Dr. Spinks and Mr. Swan, for the two sisters: It was for 1859. April 6. IREDALE V. FORD AND BRAMWORTH. 1858. April 6. IREDALE v. FORD AND BRAMWORTH. the other side to show that these parties are not proper to be entrusted with the administration. We rely on the general maxim that the grant follows the majority of interests; the corollary from which is, that when persons equally entitled are disputing the administration, the grant will follow the majority of interests, unless there is a substantial objection to the party asking for the grant. Budd v. Silver, 2 Phill. 115; Warwick v. Greville, 1 Phill. 123. Our application is supported by three-fourths of the interests. Two of the sisters apply for the grant, and the third has executed a proxy of consent. It is doubtful whether Iredale under the second bankruptcy has any real interest in the matter. Dr. Waddilove, in reply. SIR C. CRESSWELL: There are several dicta in the books on the subject of the rules which guide the discretion of the Court in granting administration, where the statute does not apply. Dr. Waddilove is right in stating that, cæteris paribus, males are preferred to females; but there is another principle relied on by Dr. Spinks, that the grant will follow the majority of interests, and will be made as desired by the majority of interests. I think this is a more stringent rule than the one giving a preference to males over females. Here threefourths, at least, of the interests desire the administration to be granted to the two sisters; the remaining fourth-supposing the brother has any interest at all, which is very questionable-wishes it to be granted to himself. He has been twice a bankrupt, and as he paid no dividend under the last bankruptcy, it is probable his whole interest would vest in his assignees. In many cases it might be very hard to press against a man the circumstance of his having been bankrupt many years ago; he may have entirely recovered himself; but that is not the case here. It is further said that he has by deed assigned his interest in his property; and he does not deny that he executed such a deed, but says that he is advised that it cannot be enforced in law. Again, with reference to the position of the parties, I dare say he is a respectable man; he has been committee of the person of the lunatic for several years. The committee of the lunatic's estate offers 1859. April 6. IREDALE v. FORD AND to become surety for him, and speaks well of him; and, what is more to the purpose, it may be presumed that the authorities in lunacy were satisfied with his conduct. But there are a good many judgments against him in a rather short time in County Courts; two are unsatisfied, and his explanation as BRAMWORTH. to those that he had made himself liable for debts of his son-in-law-is by no means satisfactory. Mr. Emmett is a wellknown solicitor; but from his affidavit he does not seem to have had much confidence in his own client, for he stipulates that the whole of the business should be transacted in his own office. As to the sisters, they may be in a humble position in life, and their means small; but it does not appear that he has any means at all. On the whole, therefore, but principally on the rule that the grant should follow the majority of interests, and bearing in mind that this is not a case of forcing joint administration, which should certainly be avoided, I think I am bound to grant administration to the sisters; their sureties to justify to the extent of the one-fourth not included in their consent. I shall not condemn Iredale in costs; he had several plausible topics to advance. Those who have succeeded are entitled to their costs out of the estate, and I make no order as to Iredale's costs. |