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Las diagrammes suivants illustrent la mithode. errata I to t i pelure, on it D 32X 1 2 3 1 2 3 4 5 6 U- in tft^ toll 0|f liwi Kor (jpitario. 3l|j|rf ai from the thnnccvn 5^151011 of the Ijigh Catirt of Justia. -* » Bp-i^vveen LOUIS AMHDEE DES ROSIERS, ASSIGNEE OF THE ESTATE AND EI'FECTS OF THP: DEFENDANT ROBERT WALLACE, xLiMi^niNi (Appellant) Plaintiff, AND ROBERT WALLACE AND ARTHUR WALLACE, ( R i; s lONDENTs) Defendants. ^^i Vt, %■ APPKAIv BOOK. i PARK1-: cS: I'URDC^I. 'ff feOMCnORS FOR APPELLANT. ERASER c\: ERASER, SOLI C MORS FOR RESPONDENT. ^i'oiuion, ©nt,; ADVBBTISKK I'KtNTINIi AND rillUSIlINH (^OMPAXY. 180I. 4 .#••■* ■*;, F|^ Ontario. Jlppcal from tlic Chanccvn'llibbton of the |)igh (Touvt of JIualicc. Between ^ ■ .' .. LOUIS AMEDEE DES ROSIERS, ASSIGNEE OE THE ESTATE AND EFEECTS OE THE DEEENIMNT ROBERT WALLACE. UL^t.j\iMNl AND (Ai'I'Ei.i.ant) P/ai/UiJ/] ROBERT WALLACE AND ARTHUR WALLACE, (Resi-ondents) Dcfcvdants. APPBAL BOOK. PARKi: .S: PUKDOM, SOLICITORS FOR APi'KLI.ANT. ERASER cS: ERASER, SOLICITORS FOR RKSI'ONDENT. l-'onbon, Out. A1>VKI!TI>^|:K IIUNTIM: ami I'lllMslUNi: inMrANV. lii9l. \ I N D KX? ' Statement of Cnpc for Appeal, Pr.EADlNdS : Statement of Claim, Statemenl of Defence, . . EVIUKNI K AT TUIAI, : Ilolieit Wallace, Arthur Wallace, ExHiiiiTS: " A " " B " Vy • • • • "])'■ Juilgnient of Trial Jiulye, Jiuli;nient of Divisional Court, Order of Divisional Court, Reasons ff)r Appeal Reasons against Apjieal, I'AliE. ,. 3 ■'> . . () l() . . li) •20 . . 20 •21 . . -iv, •24 . . 25 2.-) .. 21' 1 fAtlE. .. 3 3 . . 5 . (i l(> .. 1!) , . 20 ■2\ .. -lo 2.") . . 21' En the Court of Appeal for (Ontario. Hktwkks LoriS AMEDRK DKS KdSlKIIS, ASSFdNKK (»K TIIF-: KSTATK AND KFKECTS OK THK DKKKNDANT, HOI'.KRT WALLACK, (AlM'KM.ANT) I'ldiiltilJ, ANI> lior.Eirr wai.i-aii;, and AiiTmiR Wallace, (Hkhpondknts) Defevditvln. statI':mI'M 01^' cash Il> TluH isnn action to set nsiilc n ilfcd as fiauilnlciit and vnii! as airainst crcditorN. Tho action was tried at tho Spring Sittings, A.D , IHOO, ot'tlie Chuncfry Division of tlic TIi;;l» Court of Justico, at London, licfon- tlie Ilonornlil.' Mr. Justice Fcrirnson, when jnd<,'('nuiiit was ijivcn for tlio defendants williout costs The plaintiff tlicrenpon moved tl\c Division,!! Court hy way of api.cai from siu-li jndi,'tii»nt on the fourth day of Soptendicr, A.D., LMtU, jn.l.^nitnt l.ting res.rvi il an.l ati.rwards nivcn, al- firnnni,' tlie jud;^rnent of the trial jud^'e. The plaintiir tliercfore ajijuals from such ju.'-nu nt to the C( urt of A| juid. STATHMHNT OF CLAIM. 1. This action islirouLrht under, and hy th" authority of, an order of Ifis Ifonor .Tiid:,'r T),'vvis, 20 dated the !)th day of F'ehruary, 1«S0, in the nai f the plaintiff Louis Anieay his dthts in full, or knew himself to be on the eve of insolvency, and the said deed referred to in tho said oth paragi-a|)h hereof was made by hiin with ir.tent to defeat, delay or prejudice the .said The Bank of London in Canada and his other creiliiois or give the defendant Artiiur Wallaci' !i I'reference over the said The I'ank of L >ndon in Canada and his .said other creditors, or at all events, the making of the said deed had such effect. S. The said defendant Arthur Wallace acccpti'd the said deed in the said .■)th paragraph mentioned with the intent to defeat, delay or prejudice the said Ihe Bank of Lomlon in Canada and the other creditors of the said Robert Wallace and with intent to obtain a preference over them. an The iilaintifls claim : 1. That the said deed ,.!' the ITlh day of February, A, 1). LSSH, nny ]>,u .f declared fraudulent, null an 1 v. .id a-i against the said The Canada, and that the .same may lie set aside or cancidled. 2. That the interest of thedefcndant Robert Wallace in the said lands nuiy be sold to satisfy the claims of the said The Hank of L )n Ion in Canada, ;}, That tlie said The iJank nf bMiidon in Canaila may havo such furtlier and other relief as the iiatur.' ..t' the ease re(|uires. The plaintiffs propose that this action be Uv■^ at Loudon. Dcdivereil this sixteenth day of Se])t(MnbM, .\ I) bSS'l, by Parke \- rurdoiii, .if the City of VOL mdon, in the County of Miiidlesex, solicitor-^ i^.i ihf plaintiffs. •(• ^JjJ ^^^ COCyt-^^^^ -- / c was HI ! uve of liy liiin t /^ / 'V t-i 1.^. c ^ / c > /^ ,^/' /'<^ (^ ' V f' / / c/ <,<_ i^ 1 / i>t . -/. STATEMHNT OF DEFENCE. 1. Tho defendants deny all tho alle<|atii)iH ciintaiiiol in the plaintirt's .statement of claim except as are hereinafter admitted, and the aiiinissions herein made arc made for the purposcn of this suit only. 2. The lands in the statement of claim iiu'iitioned wore p\irchasod for the ])iirposo and with the object and intention of |)rovi(liiig a home fur the defendant Arthur Wallace and liis cliildron during his life, and then to be held and enjoyed a.s a home for the children of the defendant Arthur Wallace. 3. That besides the defendant Robert Wallace, the defendant Arthur Wallace, has five 10 daughters. 4. That after the |)urchase of said lands ami with the object aforesaid, the defendant Arthur Wallace, expended large sums of money in erecting a house and other-necessary building-! and making other improvements on said lands, and the same ever ,'*ince has been and now is occupied and used as a homestead for the defendant Arthur Wallace, and his children. 5. The conveyance of said lands was taken in the name of said defendant Robert Wallace, but were held b}' him on the trusts aforejaid. 6. The subsequent conveyances referred to in the statement of claim were made upoii and subject to and in pursuance of the same arrangement and understanding, and the defendant Arthur Wallace now holds the said lands and pmiiises for his own use durin^' his life, and then 20 for the use and benefit of all his said children fnr the juirposes aforesaid. 7. The said The Bank of London in Canada were awaie and had notice that the said lands were held on the trusts herein set out when the ali'iged debt or liability was contracted. 8. The defendants specially deny the allegations contained in the Gth, 7th and Sth para- graphs of the plaintiff's claim. 9. The defendants further say and submit that the children of the defendant Arthur Wal- lace, other than the defendant Robert Wallace, aiv nec(!Hsary parties to this action. 10. The defendant Arthur Wallace, submit-, that in any event he is entitled to a lien on said premi.sea for the moneys expended by him in erecting buildings and making in)provemenis thereon. 30 11. The defendants deny all the allegations of fraud or fraudulent intent alleged against them in the plaintiff's statement of claim. The defendants pray that this action may hu liisinissed with costs. Delivered this thirteenth day of September, A. D. IMS!), by Fraser \- Fraser, of the City of London, in the County of Middlesex, solicitors for the defendants. )f claiin |)urposoH 111 with cliildrcn ifendanb has five t Arthur 11^-! and iccupiod Wallace, poll and tl'endant nd then id latidn l\\ para- ur Wal- lien on /emeniH ai^airist r ,t J A ' f ■ / o ({. y.' /^ ' i. / City of EVIDHNCH. ROBERT WALLACE, sworn, examined by Mr, Purdom. Yon are one of tho defendants ? I am. Wliou (lid you tir.st go into business ? In bsTO. Were you alone? I was in partnership for ii few inontiis with William Green, How much did you jmt into the business! I put in about $1,500. Father advanced me Sl,200, and I had some few hundreds of my own. My ledger would show about the amount. How long did Green remain in with you ? Only about six months. Then ho retired. What kind of busino.ss was it ? Clothing business. 10 It was clothing and gents' furnishings? Yes, How much did he take out of the busiue.s.s? He took out very little with the exception of what he drew during the time he was there for his living. Since then you have been carrying on liio business yourself? Yes. His Lordship. — Was Green carrying on the business before you commenced ? No, wo formed it. We commenced together. Mr. Purdom.— Did you make anything iliiiing the first three or four years ? Yes, wo did very well, and made money. Green retired anil I continued it alone. You had no one in partnership with you ? No. During the first three or four years you made monoy ? Yes. 20 How much did you make 1 We must have made over $30,()()0.()0 the first three or four years. Do you mean yourself ? Yes. The business was very prosperous the first three or four years. Then it was about that time that you purchased tliis lot? In 1872 I think it was. You went into business in 1870, and in IHli y,>u jiurcha-sed alot from whom ? From Street and Beecher. Is that the deed you afterwards got of it >. (Exliibit A.) Yes, it was sold by Beecher, Street & Beecher the attorney.s for this mati. Is the considoratioi correctly stated in that ? I have no doubt so, yes. And you yourself personally paid $2,322. ;17 ' I paid that amount. 30 After that you built on the property ? The lot was bought for a homestead, aiul father and myself combined and built on it, father suppiyiii;j most of the funds for the house. How much did you supply, ami how much ijid lie sii|i|)ly; produce your books and .show us ? (Books produced.) I put into the building, himl, buil^liiig, furidtuie, all tittintrs to make our home complete, the amount of SG,328.10. Of tluU amount there woulu be probably over $2,000 for fuiiiiture and ornaments and fitting up ttie place. You put into the liou.se over $!■,()()() ? No, that is the whole thing. Yon have no record of what your father put in ? No; he gave mo money and I paid it out to the contractors, about Si.OOO. You and your father had a conversation thru what was to be done, as to how the title was 10 to be taken ? No, we did n^t. No conversation whatever ? No, not a wonl lietwerii us as to the title. Nor whether it was to be to your father fm lite, and on his death to the rest of his children ? No. At the time when tiie whole thing was paid tor I made father a life deed in the thintr and /() Z ^:r^/V /;./y- ( < / i 7 / / V « ^ r/ / '// o o o -'//"> i ' / ( 7ir /Ai<^y cbarrrpil all tho nionoy 1 had put into tlio estate td my own personal account. Wo started the thing a.s a homestead, an,l it was a gift t« llicni on niy j.art omirciy. After everything was paid for I charged eveiything to my personal account, witliiJrawing it entirely froni my assets. That is the deed you made at the time ? In 187G, yes. VVo agreed to build the i)laco to- ffother as a homestead for the family. Father left tho tlung entirely to myself in the way ot ar- rangements, and I took all the active work of the thing, my place of l)usiness heing more con- venient then, and he let everything go tlirou-h my hands. The whole business was N,, sir ; not till after I gave him that. Am I to understand that at the time this d^cdwa-^ made your father did not understand that yr)u bad ,so made it ? Oh, yes ; I am sure of that. And yon and he had no conversation whatevur? No conversation whatever. You are positive of that? Yes. You were e.xamined before and said " in isTil after it was finished and I think all the 40 accounts paid up, I transferred it to hi.n; he in-iste.l and said as the thb.cr was a trust for the fannly that he should have it in his natne " ' Yes; as soon as he saw the deed, but he did not see the ileeil at that time. " And I transferred it then to him and gave him a read that over aoain. no life .- interest in it " ? No. Will you '■ In ].S/(., after it was fini.shod and I thirdc a!! the accounts paid up,T transferred it to him ; he insisted an.l sai.] as the thing was a trust for the family that he should have it in his name and 1 transferred it then to him and gave him a lif. title in it"' That, I think, does not r-ad ' jmj^^^ lO '" ' , If', H'&tut ' /- l^vu^ /f /-((// /nf^-t /■; an till' exainin.itioii oix-inrcii. It soeins tn me the examination docs not follow in re^^nilar rota- tion. Tlieru is sonio hieiiks in tliat. Tliat is tlio (i- ,t e.caniination. and tlicro .soiMns to bo .some breaks in it. 1 c )iii I not have said tluit, bucaiisc we had no consultation a'lout this deed till after I handed it to him. When was that ? .S^irnc years after it was made out. What was the nndiTstanding between your father and you ? It was that we wore to build a homestead for the family wliieh was to bo occupied as tliat while the fandly held to^^ether. Tliat was the only nndeistandinc *• After your father's death ? It would still remain a homestead for those who stayed at 10 home. That was the way it should have been. Would your father have a ri^ht to iniiko a will? I suppose he woul.l. lie has other property as well as this Were you to make a deed of f,dft at that lime to your father? At the time the property wa,s built we had no definite understanding. When I made him this life deed he said it was not right, that as head of the family the deed .shoiiM l>e in his name. That was alter the deed was drawn. Ib.w long after? Two or tliree years atu-r I hold the deed in my possession for .some time without showing it to him. As .soon as h" saw the deed he objected at once, and snid that was not as he would wish it, that as head of the iuHise he wi.shed to have the thin;^ in Ids own name 20 and I agreed at once to make it so. This was about when f The deed was inado in ISTO; it would Ijo two or three years after. In 1878 was the first definite pivnuse (hat pas.sed from you to your father to give liini an absolute deed ? About that time afterwards. The first conversation tii.at occured between us I agreed lo give him the deed, It made no dillenmce to me. It was a trust between us, and it made no difi'erence to me whether he held the title or whether I did. He never paid you th.e money that 3011 put in the building ? No. I g.ivo him that numey. After 187(i how di 1 your business pn.sper ? 1 may say that after niak 11- that transfer my e.state .showed a sur|)lus of l)etween S21,()il() and S22,Oi)0. His LonD.siflP,— Was it after the transfer in 1880 that you had the surplus ? The suipbi.s ■"0 I speak of was after the am -unt was charged to my.seh. Afier paying for everything I hid that surplus, and not considering that amount at all, taking that out entiielv. Mil PuRr)OM.--After that you continued (.11 in the business ? I dhl. Did you from 1.S78 till 1888 make any nmiv money than 3011 spei:t ? No sir. You went behind during those years } 1 uvnl behind very seveivly .soin- of the years. Tell us each year \\ -.w much you wt.mt belmnl for the whole period of ton years ^ I lost very heavily in outside investments duiing that time His Lordship.— Fu.m nian> causes you uvm liddnd > Yes. In .Tamiary 18S(! my e.stafe showed a surplus of .S!l,7.")}- .')2. ' Mlt. PuiiliOM. — You made an a.ssig mcnt 4-0 think it was Augu.st 1887. Was there an\ ig the last examination I said that'' f thonohi probably it was not veiy mucirditV.'renV I see that in Brushed your memory up since '. V„u wi,|, me to speak from memorv ; I ,lid not have my books here then. In Sept.miber 1887, befo.e the lailure of the Ontario fnve.st.ncnt Association m}' estate showed a siii-|vbis of ^X.S.'iStiL'. '1 the benefit of vour creditors when ? In ],SS7; I „ . , , 'V mat(u-ial variation of your ln.siness between Januaiy 188r, and Au-rtmt 18s7? JJunny the last examination 1 said that f ' ' ■ -■ • - ' ■A .%. ,'ular rota- tO 1)0 SOIIU! I u ? Yes. Did you owe him money apart fnun your iMisincHH ? Ho mado no claim. Did you owe him money ? He linl mivaiici^d mo *2,()00 at differeiit times in my KuHinoHH. Did you owe your lather money the same us you owed other creditors? I did not consider 1 owed him the same as the othei' creditors. He advanced mo Sl,-<'0 when I stalled business I think, and then afterwards he advanced uie ?8li(). That wa,4 given to you as a son ? Yes, he never made any claim on me for it. 10 Then your father was not a creditor > No. Mr, Purdom,— E.Kcept for the STOO oi 8mi() to the Bank of London ? H(> paid .*7,-j() which he endorsed to the hardt. And he would l« a creditor of yours lor that amount ? He ranked on my estate for that. Mil. (jiuiiONH, — Money ho paid since ihc iaihire ? Yes. Mil. PuHDOM, — And he was liable on that note straight along, and has been for some years ? That was only a three moi\ths' note. He had endorsed for you ? Yes, for a while. For .several years ? Yes, I tliink thxt ycaf probably. Prior to your failure ? Yes. 20 Ills LoiiDsiiii'.— He had not paid anythin- till alter the assignment? It was not due till after the assignment. What was this amount ? ^7,50. He paid that ? Yes. Mil. rnilx.M.— After your a.ssignnient ? lie paid that to the Bauk of Lon-hm. Did you between 1876 and the time of your assignment frecpientiy get extensions In mi your creditors? No, no more than the oidinary way. In 187(5 I did not need e.xtensions ; I had a larj^e surplus in my business. When did you first get notes renewed ? I could not tell you that. I was trading with one house to a very large extent, and I would remit them on account, and very often my i"iterost ac- nO count wouM lie in excess. I was making intm^t in tho.se ilays. < on.e up a little nearer when you ha.l a 'm clu.se years ? I may have had to renew then. You did not meet your obligations? No, I would renew occasi(jnai:y. Common thing to renew ? Not very cjiiimnii. Did you ever get any extension from your creditors as a whole ? No. Any house I was trading a good deal with, they wouhl ivriow the note if I asked them to d,, it. What have you lost .since the first of January, I'SSO? Fir.st of Januarv l8S(i, the years' business of 1880 and 1887, showd a los, of^TSSli Our stock taking"was at' the end of the year. 'i hat is fill' one yeai' ? Yes. 40 That wa.s till what date } That wa.s nj) to the end of .January 1887. What did you lose between January ISs? and' your a.ssignmcnt, August 1887 ? The difler- ence between the balances at Septend.or ]S,S7, ami the end of Januarv 18,s7, is abor.t §.-,00 January 1887, and September 1887, the ditF.Kuce between those dates' when stock was taken after the assignment. With tho.sc two exceptions, the .S70() a,„l s,-,o(), your assets would be in the same condition in August 1S87 as they were in January bssc^ j p,.t,,s,ime they would. A on which ho c^aHu / a C'((rJ. was taken condition '.'I 10 Mu. (iiiiMDNs. Nut, u-i til value ? Nil, !>»t n^ to valiin. The ntock was (akon and tho books wurn cl iscd ill Si'ptciiiln'r, Ills Liiuusiill'.— Kidiii tliat ynu kiw.w aloiit the tiino of tho OMHigmnent you woio ahout 8t.')00 wnisi' tliim in .Fanuary, 1SS7? Yes. Mu. riiiDoM.— With tlio.ie two fxci'vtions, tho *7<)0 and ;?.'i{)(), your assots would ho in Septi'inhor, 1H>s7, in ftloiit tho samo comlitiuM n-i in January, t8S(l ? Soiiu'iliin'/ ahout tho .same. Ills Loiiiisiiii'.— Tho '$~X) and tlu' r*j(l() added t()j,'ctiior would nIiow tlm dilftiionco liotweon tho value ni (liu estate at tlio tiuio of tlie as^'iiinont and January. l.^Sli f Mit. (JiiuiDNs.— That is, thi! hook value? Yoh. ]i) JjIk I'riiiin.M.- Till' iiiilv thiiij,' that ucciiiied during; that time was tho failuro of tho Ontario Inve.-tnieut? That and the faihuo of the lUiik of London, which ilrow away tho support I had hoon havipf,' from it. How much stock had yuu in the < intariu InvcHtmont ? I had 100 KJiarcs, ^>0 paitl up. That woidd lopresont? It cost nie ovei JKoOO. I had wiped od an aninunt of it in order to brinj,' tho stock to the market value. What were you carryinj,' it at in January, 188G? At iJS.oOO. By the failure of the Ontario Invostinuntyou had lost this ii?:i,500 ? Yes. Tlis LouDsiiii'.— In Jnniuiry, ISSti, yon were carrying stock of tho Ontario Investment As- sociation whicli you valued at ><.},.')0O ? Yes. 20 This resulted in a lo.ss ? Yes. The IJaiik of London luid boon holding that as collateral for my loans. Mi(. ruuDO.M.— And that was the only M'curity you had lieyond your personal security? Bevoml father's enihusemcnt for a certain atii'unt. ' For the !?70() ? Yes. When you made your assif,'nment in hs7, what was tho statemont of your assets and liabilities subniitti d by you ? This is the .stat<;nient : my liabilities were i?2'>,Nt)0. What was the date of that statement i Sijitember. This was after stock taking. September, 18871* Yes. Mercliamli/.e, j|[l,184!)2; open accounts, $;5,J110.'20 ; real estate, *(i,()00. ."0 How much wore tho assets ? i?28,.')t)0, not counting the Ontario Investment. The Ontario Investment was not countci as an asset at all ? No. Liabilities $2r),800 and your assets win if2S,.')00 ? Yes. Showing that surjilus of lf8,0()() or S^l-.OOO ymi made an assignment on account of tho lo.ss of $"'3,500? My creditors in Montreal, as .soon as they saw tiu! failuie of tho liank and tho Associ- ation, wrote me to come down with a stateincnt of my aliaiis. They insisted it would no* bo possible for mo to pull ihrougli and meet those ainouni.s, as thoy no duubt would bo demanded, and they insi.steil on niy making an a.ssignment And the only ditloionco was between tho ?i 700 and tho $!{,.')00? Yes ; ahout that. What dill your estate pay on the dollar wlien it was wound up ? It is not wound up yet. 40 Tliey hold still toy real estate and other thinj^rs. How much has it paid ? It has paid ali,)nt t-.'J cents. How nuich more can it pay ? 1 hnv- in. i^..^. Do you think there will be five con' I 1110:,' gob .'^lit of it? I could not say. Of cour.se if they coxdd realize on the proj erty th r. v: d i.. -i great deal more. I cannot tell you. You won't risk an opinion as ':. 'adi tic. tli.To would bo or not? No. Up to date, two years, nearly three years alter the assignment was made, all they have been able to ge. out of it i.s 4 > cents on the dolliir f 1 think so. (I tho books wore about ;oul(l bt) in lit tbo saiuo. ICO botweoa tlio Oiitnrio |)|)()i't I had lid up. it in order cstim^nt As- ;()! lateral for il security ? y> , ( f t /^. ( t I Y assets and real estate. f tho loss of the Associ- )tild not, he duinanded, hat. mid up yet. )f course if oil. !y have boon I 1 •t 11 What, hccanio of your ostati; ? who got the part of it that was sohi ? My estate was adver- tised in the usual way very extensively, and it was bought in by chief creditors, and continued on under the name of my brother-in-law siuce. What is your brotheriii-law's name ? Mortimer. His wife would be entitled to a share in this property ? Hia wife does not live at home. Slie would not have any interest in the property at all ? Not under present circumstaucos ; no. Yoti are carrying on business to-day at the old stand in your brother-in-law's name'? It is being run in bis name. 10 And you are running it ? Yes. Neitlier I nor anybody else would know liut it was the same old establishment? I wish you could have shown a way to get out of it. You did not lose anything by the Bank of London ? E:;cept the support that I had been leceiving from them, which was withdrawn, anl my security was witlidrawn. Your security was not good without the support of the Rank of London ? Not good with- out the security they were holditig for me. The Ontario Investment was the cause nf your failure ? The Ontario Investment and the withdrawal of the support of the IJank of Lmdon. And the class of as.sets you had at the time of your failure is the same kind as you had fur ten years prioi'? Yes ; st ck an>\i told bun the same story you hav? tiil-i us to-day; No. She don't live at home. Your other married sisttT ? .She is living nt home now. She was not living at homo tho'ii I \m IL was adver- cunbiaued t home, imstaiicos ; no'? It is ? I wish liad 1)0011 ^0()<1 with- it and tho )u iiaii fur c solicitor 3 |iroperty lid him to 1 tru-it tor •as simply I' iiiLMiiory, oud imiiu.'- diltoieiit I any iliHrr- i ti'ust for rcc trift to family I She don't 12 Would your hrolhcr James liavc any iiitciest ? No, not while hv was away ffom home. It Was ,siiii|)ly til Ik; a iilacc for the laiiiily tu coiau to. There \\n> notliin-- deliiieil ? No. Tlie real fact of the matter wa.s that that Iion.so was Imilt like every other house, intended it to livi! in I Yes. It was intended U< lie n^'d e in lii^ name? Ilu ohjected to the life deed all the time, he .said he should have tli(^ thini,' iti his name as head (4' the family, and 1 a^iced to let hiiu have it in that wa^', and I aj;reed to it at once. And if youi estate had lieen womid uput the time you made that deed it would not have paid 100 cents on the dollar? I am not proiinred to say that. If I were allowed to wind it up myself I think I could have ^ot out of it. As a matter of fact you haie had a shortage of Slo.OOO in paying up 100 cents on the dollar? As midii as it went into the hands of the assignee I had no control on it. So far the a>-sigiiees have only I'uid al" ut+r) cents on tlie dollar ? That is about it. That wt.uld leave i?ir),()()0 still tujpaid ? Ithink so. 20 What assets are tlieie to make uji §15 000 or the half of it ? I do not say tiie assignee could have done .so. if allowed to wind it up myself 1 have no doubt I CLiuld iiave done so. What assets are theie? The property i-i untouched yet I understand. Is it unencumbered ? Yes. Ills Lonnsiiif.— What do you nuan by Muiiig if you were allowed to wind it up yourself, do you mean if you were allowed to carry on tii business ? Yes. Supposing you stopped the business and t- k the existing assets for the jiurpose of releasing the amcunt to pay debts ? Possibly I could imi have realised innnediately, but in a reasonable time 1 think I could. If the a.s.sets you had in 1880 had lieen ivloased by you as best you coidd in a reasonable •'^o time, that is, without carrying on tlir busin-s, what is your ojiinion as to their jiaying the liabilities? To stop the business at tli;it tinv it wrndd be hard to say. A business running coidd be realised \ipun to a grea'er extent than -iie stopped. I meant if f were allowed to con- tinue and dispose of the stock, if 1 had lieen aiiijwed to continue for the imrpi.se of windimr it up. In IS.Sti if you had .simply madi' up youi min 1 to wind up yw business in a business way, tha: is, continue it and get rid of your stock fur the pinpise of winding up only, you are then of what oiiinion.' That I could have ]iaid evi'iviMdy. But it would have been ditleieiit if ymi h:il ,i,,pp,.d the buMiiess - Yes. We could not re. alisc on them to the same exten'. K) ,M u. rii{noM.--An> ? a year aftei wards yoiir heaviest creditors thought it was impossible to continue? Thoui,dit it w.uld 1.,. unfair to allowth,- Bank and Loan Company to get their share out bcfiiro the other creditors were paid. .\re v.ui now carrying on the bu-im-. f,,r ih,, credii-rs or for your brother-inda.v ? In l.rnther-iuduw's name, an 1 u .w b,.!,,.; w ).n 1 up. .\nv monev made inn>. estate Ho is the actual avsigme then ? N.- !,,,■ ,i,,, i,,.,,,,,), ..f the old estate, for the benefit of the present estate In i.gaid to this sale I neiv -.tv tl;.)! \ „„, ..tv|..av..ri!,.r ,,, ,,,..,!,-,. ^ ^jj{„ „f ,jj^. my the present V home. It , intended ere was no :fid upon ic he was not it, and he he said he ; it in tliat i not have vind it up mts on the it. lie CC U,>f <«•> oon r ■ furniture? Yes. ' ^"^J"' '^'^'^^ 'i">"t •'S2,0l)() of ,t went into You have lived with your father always? Yes. Your sisters living ther-o too ? Yes. You are unmarried ? Yes. Have you ever paid any boai-d these 20 years ? No. Who kept the house ? Father And T (rqv.mV^af „ • . t Y„„ iJe livcl th,.e wi.H„„ ',44 Lfjl-dT yI " ' '""""' '" '"^ ""'"- Y,,u did „„t„„„„t lhi,a»,„ assctMall? S„,„„, novc- have ,i„c. 1«7B Did you render these ,tate„K.„l,.i„v»,„.v„i,„„,„|i,„,,, ,uT , r , explained to niv ereditois what I ha.l done '""' "' "'" '"""'''"' ' 40 At'thl^lrt "'"' " ' '"»''^- i- "■'»' T^»>' ''■'■'■ to til"''" '"" '"™ '"'" '"'" ""'"■"™" '^- '« y''"> Ve,, not every year ,„, ,,,„„ «,„„ Whs anything put in that statement as l,f.,„„„ * • , , . Written off at the time ? Yes ' '" ^•"'''^ «'™P"«<^'J "f ^.is property? No. There is an item carried over of real estate nr Yes. The Bank of Commerce objected to the loan tiom the Bank of London. Bank of T "T ""T^;': !r"*T"' ^"'"' '^^ ''' '""•'^ -^ ^""''"" •'-- •>•"" ^^ I-y ••!> ? The rJank ot London failed themselves. i ^ i Then your creditors felt it would Ije impo.,ible to pay off thi. money ? Yes None .It*!"',- ""' '"^ '"''"''" '" "'■''"» *" -"-'>'^"'^'' "f defrau.ling your creditors ? I)_id ever any such idea enter into your he.l? U nesvr occurred t.. me that I had any in- c^ : itlh!;;' ^"^'^^^^ ^ ''"'"" '''' --- -• •"-'- "^^'' ■->■ ^''- --y ■-•' ^i. last 40 The statements between 1870 and 1880 did „„t inclinl,. this property ? No ^evel• was counted as your asset ? No. You have always lived together as a family ? Ye< And still live together? Yes, Your father put into this property al.out 84,.^,)()? j u,ink tliat was th. an,onnt Have you any .lea of the present vair.e of the property > I could not say. It ^eems in ,ne It It was sold to-day it would not realize nior. tl,a„ .>?(l ooo. The rest of j'our creditors refused to havonn,.*!*- . i -n n • .• . ., -».<■ i-(Mia\e anything to do with this action ' Yes, I wrote k lerty ? it the dence assets! tlio nnel )ney the waH Mr. 1 to fj^ot rhe r.s ? in- last lt(! !.■) telliiir; the inspector of tlie contPiniilatcil notion of tho Bank of London, nml lie replied sayint^ they wei'e (iuito satistici!. Gault Brothers were creditors for S>1!I,()00 ? Yes. And they refused to join in any nctinii.^ \cs, and they understood tlie position. RE-ExAMrxKf) Bv Mn. Purdom.-— Gauit BroUiers are the same (irni tliiit l«%'lit in the stock, and still make inoM.-y out of vou as a customer? I would he very ^dad if they did. They lost money on nic. 80,000 you still thouirlit was tlie real estvto of Nathaniel ReM's ? j h,.],] n-al estate Roid's place where Hie Federal ISaiik hoiiglit aftoiwards. 'J'hat was his interest in it. 10 In charginjj this money to yourself you wore the only person interested in it? Yes And you kept the accounts of your Ihmhoss by it-ielfand not of your home ; ymi did not put the numey amongst the assets that you ha'l invested in the home ? I charged up everyth'n" to real estate till it was paid for, and then in one lump I charged it all hack to myself. Instead of giving my father the cash I built the plawand done the active W(.rk, and then charged the amount 1 ack to my own account. In making up your atisets and liabilitiw you did not include that i No. It formed no pa't of your business as.suts? No. You had no partner / No. It did not matter whether you charged it to yourself or not ? It made a dilference to my 20creditor.s. You spoke almost as if you were living with your father on cliarity ? Oh n.., 1 did not. What have been your expen.ses a year? My expenses would be in the n'ei-hhurhood „f 81,000 to SI, 00. Do you keep any account of it? Ves. Give us the heaviest year you had and the-mallcst year you had ? In 18SS it was a little overs 1,000. Now give us the heavie.st one ; that is tlii' sinallest? No, that is is.s;). Give us the heaviest ami the .smallest ? I will have to go through f.ou. the time 1 sla.t.'d business, 20 years. .SO Pick me .mt the largest one ? Next, is aba 81,200. I thi.d< you will find they run in that neighborhood all through. You said they wouhl largely exceed that nnsnme occasions ? Tney i.robaldy w.^ild ex,.,, .,1 that .some years. In 188.5 it is 81,07 !•. ' ' You kept fast horses ? I have never kept last horses. Kejit a pretty good turn out ? Yes, a familv horse. Have you given me the largest year that y^n have there ? No, [ do not know that I h-uv Give me the largest year that you had ? P.rl.aps 1 will have to go back 1 :> or -.) vears I think you know pretty w.dl w.ere the exin-risive vears would come in ? " * ' Ml?. GiUBONs.— I do not think you need trwil.le to show that. Mr. Pcrdom.— Your account with the hank conimenced in 1 8S4 ? Yes And .since then you owed them ab.ut .?.l,0(iOor 8d,<)00 ? Yes, it would run ab ,ut tint Mk. Gnu..0NS.-Always suppo.sed to ho .s,.,,.! . it was secured up to a certain an.mnt bv this Ontario Investn.cnt collateral. I think tl,,.,,„„unt was 87,;50(). and all above .^(J ()■),) r.,tl • endorsement; it miLrht have ijcen .Sf;,.'>(i(i Practically all secured ? Ves •J he I0.S.SCS to the bank is l,e,cause ,e the w,,,,,-,,. investment. < V,.. „„.i,.,.l., .pi,^,^. ^.,,,,_ 40 ner s sidered it a good account at the time. "' "'^tar-io Investment ? Yes, entir (.■IV. k in2 vou id'i not '111,' eail the my A\c lilt ,m1 ATIUHJK WALLA('I< » IVIi uu! um: ui [lie Hi'IciKiaiits f Yi Jb >\vnrn, examined Dy Mr. PiirJorn lou and your son l.iiilt a lumsi' to!;;other? Yo,« w"„;";l,u;: rr' ;;'.;;:;;:° ""■""' "" '•" ''''''■ ™" '°' »"- 1"-™'-' f- -• Ami yon owuefj it ! Yoh. Af((«r lu. paid for the lot who Rot the dceil of it ? J couhl n.>f tnll . n • > •iced for y,.a,s afu'r. '^ '°" ^"" anyth.n- about th., A''t''''H'Hnt WashoUirlltwhooot th0(k,l(.f it? Mv son • T I .f^ H 11 . You ha I some iniflifit conlidtMice in hiii,' Yes. Di.l y'<- ^'-i-.^. *^() XT T ' '" ■ .0,, i,.:;i;:';:;:-^^:rr ;: !:::r *:r' ' ■ "■« '■""' ■"■ '"- -*■»■ '■^- »-a„.Uo „„lc„ 11,0 ,„„ ],i, „„; .„i,| ;,,"." "'"■»'• "'■" 1"» »>" ™> « .■.■rt.ii,, .xa,ni„„ti.M, ,„i,| •«ad astate,n..nt to him and ask if it is u'l' 'y" "'''"' ''"' "'''""' '" '''" ^•■'^■a"iination you can t la.o J-;„,li.h case in .e^nni to that: wlKev,"'!,'" " '! "V""-"' '^"^'^°''^ "^ ''> '''^^''. Thero is ;-fts a ruling that the witness is adver.. U ^.''"''""'""^ >^ ""^ at liberty to lead until he 40 Jt >-'m,etin.,s assumed ti,at wl,en you call an .,ppo. ctvsarily so. You put the witness in th,. l.,x as "■ |""vcs an adverse witness then nent he ,s nccessMily adverse, hut that is n„t ,H a s-ood witness, and examine hin, like any oiU.u ' u- you .et the rulin. At all events the ca l "'^^^ ' !'". '"'""■^ "' ''''^■•' Mn. PfRD„M, to witnc^s-Y.n, s,, H ''"^""'^' " '•* '"^^•V'">'' all doubt IWP I did not. "• '""'.^'^" never .saw (or-tome years after the ^V""n"^'' And the whole thir,^ cos( between No. In any of them ? No. Are you satisfied with the dwd now I hin satisfied now. You are satisfied when you yot a d.dnf the whole thin-? Y.s • I thmk n>v . ■„ l „ i right to give me everything he liked. If 1 l,a,l the means n.^-self I wo d I T " cent, but 1 had not the means and he furnish,,! the money to.eti.er with n. ilf ' " And nowyou say hegives it t(Moual.w.liiiely in lS7(i? Decidedly 20 The deed ought to have been .nade out inthe first place the san.e us it is now > Yes Ih^'n your defence talkin- about it bein. in trust for the family is not cnn-.-nt (,' v clau.se C o defence) ; is that correct or incon.ct: That is not corr.ct^J f,: I " , - ^ """' ^ on do not know anything about that even? No. Know nothing about the instructions for thedefence ? No ; because I f hon„l.f . was my own an.l I had a perfect right lo it, "''^ '"^' l""'l'^'>ty Then its being to you for life a".! then tol^held in trust for the benefit .,f tb. , Vl i • not correct? It doe.s not suit me. '''"' '-'"l''''^'" i'^ You want the whole thing ? Decidedly Ih. What iuterest have your chil.lren in the pi„„erty ? No interest onlv „.1.„f r ■ ., .0 Then the Oth clause setting up that theylaeisary p,:!:: ".^ ^i;: ''^'r , do not know whether you would call it a mistakeor not. iL-y have no in r / 1 porty except what I give them. !'"-> "avt no interest in that pro- Then the st.>ry is this : in isy-' y.ur son ho-.-ht the lot and paid a little over ^•> OOO . Tl lot was pu.chased by auction. 1 went with hi,,,,, buy the lot It w. ■ In T" " an.l ^en ho transacts, all the business after t... ^^ 't n! ^^ • : ^■'' ""^^•" ^"^ ''-■ n 874 he got a deed in fee in his „wn na„.,. > I I „„t know a . vthi , 'ab.ut that In 1870, you allowing hi,„ t,, ,)„ all the bM.ir,,;,, ? | did ' He made a deed by which vou lu'eim,. fl,., i , know notiung about that. ' " '""'"' *'"■ '"'■' ""' '^^ ^■""'' ''^■^^" "^ -as his i I 40 In 1880 he makes a deed of the whole thin-t^ ..„ -/ ir . . and gave it to me one night some years er ' ", ' '^ 'f ^ l!"' 1"^' ''^'^' ''' '"^ "^" him I would not take tLat, 1 w nted it „ "' '" ^ ^'^"''"'' '' '"^'-■'^ ''"'' t'''-' in it. "'"'^'""' '" •">■ "^^» "'^'"'^ ^^'itliout putting any life Did you give him anything for the Mionev 1.. 1,. I ,f ■.. xt ,- son money when he started business. ' ''"^ ""° " ' ^""""- ^ "''^'■^"^•-1 '"y Was it to be for the monev von hml n,i,.„ 1 , . vanced it to him the same as a.fv M ' l^ t '" "'"/ \ ^ ""^ '^' ^"> "-^' ^ -'- ' jM'IKl L'sent ad (i or a IIW ity lu- lu- III, 18 Was the deoi] to pay yon for the money ailvanco liiiiy about who made tlio iloeds out, ami never saw You trusted ycur son to do everything ,' Yes, and would trust hinUo-d, And J ? I know nothing about it. I know thoui till recently lay. 10 I you did not ascertain for niauy years after that it wa.s in your own name ? I di.l not And you did not pay your sou hack the money he put into the house I I did n )t Gave no value fo, the deed ? No; only to put n,y money into the i-roperty^he same as you would It you were building a liouse. ' 1 J ''■"' «ame as Cros.s-E.\.\mined by Mr. Fiaser : lild'stm r" "";! "'"' f v""' '""' ^"" ' "' '^'^ "^"' ^^''^'^ '- -"- '- -- •">-•',. And still lives with you ? Yes. He is not a married man ? No. He makes mv hmiv, ,. ....f ^ i\ i i Ti • I 1 1 , •^ comtortahlo wlien ho comes into if This land was purchased at an auction sale >. Yes. You Mud your son wei'e both there ? Ycv And you left the transaction of the husiikss to him > Yes that I!:::,;";: ;:;:;' f':;;.:;;":""" ^ ■'''• '-^ "-' ' *■ -- "" '-"»■ »» tha. „oc„ Wiiat did you sav when vou saw that' Iravp Jf l.^,.i. *„ i • t i , •2«it .a, „„. i„ acc„,.,,„„„ ».i.h\l,e wljlfauf, '':;,t:" ' ' "°"" ""' """ '"'°-"- And that was the tirst you knew of it? Yes. And you would not have it at that time ? Decidedly not ^ mi always supposed you owned that property ? CVrtainly Did you do anythiuir with it .Miioe von m,. ;• i av„ i i How was it assessei^ It h s b^'a^ IJ: i, ,^""'" f'' ""^''"""" '' "'' "^ ^»"'''- Otej a8i,c.s,.i m my name for years, and is assessed to me now. Ve.s. will, tin 'if King Street property .> And always was? Ye.s. Di.l y,.„ J„ anything d.o ,vith it,rfs„i„g.., ,,,„,, Not „, I t„„„ „f \\ ho drew the will ? William R. .\[eredith On that occasion you unde,tooi< to ,ieal wiih the pmoert v ' Is U.I, particular property specitleally um,u.,v,d in this les, it is. When was it made ? KJth of March, LSh.'i That will was ext..cutcl at thuc time? V,.^ | ,1:,.; 1 , i ,1, . ,. , , per.sona], between my children "iHMMltiie lest r,f niy properly, real ami So that you had it in y(;ur mind then tt.ar vi„ , i ,1 ■ 40 decidedly. """' ■^"" "^^''""" H"M"-operty at that time .' Why And had the right to dispo.se of it asyo,, ,ho„,|„ (j^ , wanted to. = ^ • Re-P:x.AMI.VKD, by Mr. Purdom ; I suppose the a.^ssuient to' you would ho ,|„it„ H-d,' owned It tor li(e, and after my death I sunna.J " ', You did not l-.nowauvtldngah,utSr""!^ ''' ' r""' """ '^ ng about it. ■ ■' ^'"-•J^f^nc.pnt in to tins action ? I ,lid not know a, Yes; I could will it to you if I as you owned it I'Pose .some one el e would own it thinu life.? Yes. I uiy- ^ 19 Your son Robert lias done evoiythiai; ? Yes, my son Robert and hi^ attorney did every- thino'. I very seldom bo in a convt of justice. I guess this is the second time in my life. Close of ))laiutift"s case. Mr. Qfp.hons. — We have just two witnes.-ses.tho liook-kueper to jirovo that this was taken out of the assets, the iJC,300, liut that see.ns to be admitted, and Mr. Sm.irt the mana,ij;er of the Bank- but I do not think I will call him. Me. Purdom. — If there wa.s a statement given wo cai.nut tind it. Mr. GiiiJiONS. — The manager ni' the Bank says there was a statement ;,'iven. 10 EXHIBITS. EKHIBIT " A." This Indenture, made in dai)licate the twenty-first day of February, one thousand eight lunidred and seventy-four, in pursuance nithe Act respecting short forms of conveyances. Between Robert Gibson Davisson, of the City of San Francisco, in the State of California one of the United States of Ameiica, merchant, of the first part, and Robert Wallace, of the Citv of London, in the Province of Ontario and Duminion of Canada, merchant, of the second pait : Witne.s,seth, that in consideration of twenty-three hundred and twenty-two doUars and thirty-seven cents of lawful money of Canada, now paid by the said party of tlu^ second part to the said party of the first part (the recei|it whereof is hereby by him acknowledgedj, he, the .said party ot the first part doth grant, rika?eand convey unto tlie said party of the second part 20 his heirs and assigns forever : All and singular that ceitain parcel oi tract of laml and premises situate, lying ami heini'- in ' the said City of London, being composed (flats numbers eight, eleven and twelve, aceordin"- to a survey o' lots numbers eleven ar>d twi'iv.. on the south side of Fast Dundas Street, and lots numbers eleven and twelve on the roitli Mik' of East King Street, made for tiie said Robert G. Davisson by Samuel Peters, Fsipiire, Provincial Land Surveyor, fthe said lot eight having a frontage of forty-four feet and nine in^h^•^ on Colborne Stieet, and the said lots eleven and twelve having each a frontage of foi'ty-four fiot on King Street), To have and to hold unto the said jiartydf the second part, his lieirs and assigns to and for his and their sole and only use forever. Siil,j,..ct, nevertheless, to the reservations, limitations, SOpi'ovisocs and conditions expressed in the uii^'inal grant thereof from the Crown. And the said party of the first part Ciiveiiants with the said party of the second part that he hath done no act to incumber tlie said liiii'is, And the said part} of the first part releases to tlio said iiarty of the second pait all his claims upon the said lands. In witness whereof the .said parties hereto iiave hereunto set their hands and seals. Signed, sealed and delivered \ i"Jli^J*''5^*l*^'i^H.9^ r ^d. IKJIVFRT GIHSOIS' DAVISSON. [i,. s] Sd. CECIL BROWN. I Received on the art, doth grant unto the party of the second part during the period of the natural life of the |)arty of the second part, 20 All and singular that certain parcel or tract of land and premises situate, lying and being in the said City of London, being composed of lots numbers eight, eleven and twelve, according to a survey of lots numbers eleven and twelve on the south side of East Dundas Street, and lots numbers eleven and twelve on the north side of East King Street, maile for the said Robert G. Davisson by Samuel Peters, Ksipiirc, Provincial Laud Surveyor, (the said lot eight having a front- age ot forty-four feet and nine inches oiiColborne Street, and the said lots eleven and twelve having each a frontage of forty-tour feet on King Street), To have and to hold unto the party of the seconti part to and for his sole and only use during the period of the natural life of the party of the second part ; Subject, nevertheless, to the reservations, limitations, provisoes and conditisns expressed in 30 the original grant from the Crown. And the party of the first part covenant- with the party of the second part that he liath done no act to encumber the said lands. In witness whereof the said parties herctihave hereunto sot their hands and seals. Signed, sealed and delivered^ V Sri Rn«T \xrArr Ani.^ r^ s.l Sd. in presence of M. 1). ERASER. ) Sd. ROBT. WALLACE. EXHIBIT " C." This Indenture, made in duplicate tlie seventeenth day of Febi'uary, in the year of our Lord one thou -and eight hundred and eiglity-six, in pursuance of the Act r('s|iueling short forms of 4,0 conveyances. Between Robert Wallace, cf the City of London, in the County of Middlesex ,ind Province of Ontario, merchant, an unmarried man, df tJie first |)art, ami Arthur Wallace of the same place, insurance agent, ot the second part. one ion- nce ace. ad-' the be the lon- ,'of (ith the ing iiig ots a. nt- ilve use in ith s.] )rd of ICO ue, 21 Witne.sseth that in consideration of one dollar of lawful money ot'Canaila, iiuw paid liy the said party of the second |iait to the -iaiJ party of the first part (the receipt whereof is hereby by him ackno\vled<'ed), he, the said party of the Hrst part, doth frrant unto tho said party of the second part, his heirs and a.ssij,'ns forever, All and sin s-iid lot 10 eight having a frontage of forty-four feet and nine incln's on Colborne Street, a .r <:. ■ \id lota eleven and twelve having each a frontage nf forty-lour feet on King Street, To have and to hold unto the said party of the second part, his heirs and assigns to and for his and their sole and only use forever , subject, nevertheless, to the reservations, limitations, provisoes and conditions expressed in the iiiii,'inal grant thereof from the Cnjwn, The said party of the first part covenant*) with the said j)arty of the secoml pait that ho hath the right to convey the said land to the said party of the second jiart, notwithstanding any act of the said party of the first part. And that the said party of the second part shall have quiet possession of the said lands free from all incumbrances. 20 And the said party of the fir.-,t part coveuants with the said party of the second part that he will execute such further assurances of the said lands as may bo recpiisite. And the said party of the first part covenants with the said party of the second part that he hath done no act to encumber the said lands. And the said iiarty of the first ])art release to the said party of the second part all his claims upon the .said lands. In witness wheieof the said parties hereto have hereunto set their hands and seals. Signed, sealed and delivered ) in the presence of [ Sd. ROBT. WALLACE. [l. s.] Sd. M. D. FRASER. ) 30 Received on the day of the date of this Indenture from the said party of the second part, one dollar, the consideration mentioned. Witness: Sd. ROBT. WALLACE. Sd. M. D. FRASER. EXHIBIT " D." This is the last Will and Testament of me, Arthur Wallace, of the City of London, in the County of Middlesex, Esquire. 1. I give and devise my dwelling house and premises on the north side of East King Street, in the said City of London, lining compD-cdof lots numbers eight, eleven and twelve, according to the registered plan of lots numbers el.'vori and twelve, on the south side of Dundas Street '^^ East, and lots nuntiers eleven and twelve on the north side of East King Street, in tho said City of London, to have and to hold the same uuto my wife Letitia during her natural life without impeachment of waste and subject to the wtale of my said wife therein, 1 give and devise the same unto my son Robert. by the of lie Elst lot ots Coi- ns, ho uy rce lat lat ms s.] I't. ty it, et y it lie 22 2 I "-ivo ail 1 Uoiiuoatli iiiito my sai.l will' all my liounoholil f'liniitiiro ami housoholtl effects. 3. The piovinion hoieiu mado for my said wife h iu lieu of dower. 4 Ail the rest residue ami I'emaiiulc'i' of all tlic real and por.sanal estate whereof I am or shall did iiosHesrted, I f^ive, devise and bdiueath unto my said son Robert, and William Ral|)h Mereditli, of the .said City ot London, Esi|uiro, their heirs, oxeciitorH, administrators and assiii[nH upon trust that they or the survivoi' of them or the executors or administrators of such survivor do and shall sell, n^alize and convert the same into money with all convenient speed and invest the proceeds thereof in such manner ds they or he shall see tit (including,' in buiMinj,' or loan societies, or comjianies' stocks, shares or deliontures), and to pay the income, proceeds and profits 10 thereof, includin<,' the income, proceeds ami jirotits of my said residuary estate before its conver- sion unto my said wife durinjf her naturallit'e, in trust for the support of herself and the support of ray unmarried dautjhters (while tliov live with their mother), and upon and immediately after the decease of my said wife, or if she shall not survive me, after my decease to pay and divide the whole of my said residuary estatii and the proceeds thereof eipially between all my daughtei's. o. T authorize and empower my trustees and trustee to postpone the sale and conversion ot my said residuary estate or any part theieotas they or he may see fit if they or he shall deem it expedient to do so. G. I authorize and empower my trustees and trustee witli the consent in writing of my said wife to advance any part of tlie prospective or presumptive share of any of my daughters to her 20 or them if they or he shall deem it expedient to do or to apply the same for her or their benefit as they or he may deem best, and this povrcr may be exercised notwithstanding the minority of the beneficiary. 7. If my trustees or trustee shall deem it necessary for the support of my said wife and unmarried daughters to use a part of the corpus of my said residuary estate or the proceeds thereof for that purpo.se, they jv he may do m. 8 I appoint my said son Robert and the said William Ral[)h Meredith to be the executors of this my will, and I declare that any executor or trustee who is or may be a practising lawyer, shall be entitled to the like remuneration for services ])erf'ormed by him on account of my estate as if he were not a trustee. 30 In witness whereof I have hereunto set my hand this sixteenth day of March, one thousand eight hundred and eighty-three. Signed, published and declared by the testator, Arthur Wallace,> as and for his last Will and Testament iu our presence, who were present at the same time and did attest and subscribe the .said Will as witnesses thereto at his request in his presence and in the presence of each uthiT. 8d. T. G. .MEREDITH, Of the City of London, Solicitor. Sd. J. TYTLER, Of the same place, Law Student. / VSd. ARTHUR WALLACE. >Ct8. 1 or il|)h ,<,'ns Ivor vest loan )fits ver- port iter Icicle ,ers. ti ot n it said her t as the and 3ed8 tors yer, tatc and IE. 23 JUDGMENT. • • to setaside acoiivfyauce boaiiriK tlati- tlio I7th of Kcl.riiary, IHHC. If that The action is ^ ^ , tmnsaction there ini^'ht l.e soino ditliculty ii> inaintaiMing vvere the ^'^^'"""jf,;^,^ ! \ ^Ii ,ot .ven then l.o a vv.v .t.un, ca.. against it. Hut when the conveyance although tu. ^^^^ ^^^,^ ^^^^^^ ^^^^ ^^^^^^^^^^^^^ ^^^^^^^^^ ^^^^^^^^ ^ : : ;:ZT:^ZXZ:T:n a Jl. .ale. .. ... ,.,.0. .. .n.ih.in. upon it a home- ? « f,.r tho father's faniilv. Robert, the son, then having l^een prosi-erous n. ousu.. ss, ami hav- ZiX:^:^, «i>u-i. i.is .atla., .ui not, an., Kohert then an., always sin.e therea.ter esidinc. with his taUier and amongst h.sfalhei . family, a .u.Kl.n.r was constructe.l n,,on he lot lOthat wL bought for the purpose of a h,m,ostea.,i and a residence for the am.ly. lo this, llu her being then in prosperous circumstances a. a merchant, contributed largely, say between «>,.))a ardlsOOO The father not being so prosperous contributed to the erection ol the building still more larcely say »4,00() or 85,00(». The conveyance fiom the vendors was taken to Robert, and Robert pai.l the purchase money. The purchase was in the year 1«72, the conveyance was on the 21st of February, 1874, to Rob.rt, In 187C Robert, through his solicitor, had a convey- ance drawn up whereby he purported t.. transfer the pr.>perty to his father for life. As soon as this was made known to the father the father objected and said the conveyance ought to be to hiia in fee. This was some two or three years after the conveyance had been actually drawn, but unknown to the father. As soon as the lather objected Robert at once agreed to make a con- '70 veyanco to him in lee, saying that he thoiishl it was right that it should 1... s.. Robert appears to have been .successful in busines.s. and at or about that time had a surplus m his business of over gi-n, 000. The father was not well mH. Robert's evidence is clear and distinct that within two or' three years after 187C he promised to make a conveyance in fe'^ of the place to his fatlier, the intention of course being that it shald be a homestead, to which a prosperous son had contributed largely, and the father had also contributed largely. The father's evidence is that as soon as he learned of the conveyance tuhim for life he objected, saying that it ought to be to him in fee. He does not know precisely how long after 1870 this was, but he does not in any way contradict the evidence of his son. Then the evidence of the i)romise on the part ot Robert to make the conveyance is uncontradicted, and as far as the father's evidence goes it 30 circumstantially supports the evidence that the promise was made. There wa,s then the moral obligation on the part of Robert to make till- conveyance, but like many matters of the kind it lay over and was not done for many years afterward.-. In 18S(i this conveyance was made, the one that is now attacked. At that time lUert was not well otl', but the evidence does not show that he was insolvent or on the evt .,f iasolvency, althougli this is argued from sub- sequeni facts. I think the law is, and it has been decided to be I think by .Mr, Justice Strong, when Vice Chancellor here on authority of decided law, that where there is a ni'Mal obligation resting n|H,n a parly to make a conveyance, and in imrsuaiice of that obligation Ik; does make it, that the quality or character of fraud cannot be altrihuled to it. Now, 1 think the conveyiince thiit is 40 attacked is a conveyance standing in thi^ liosition. I think there was what has been called a moral oblbmtion on the part of Robejt to make the conveyance in fee to his father pursuant to his promise so to do, which promise \va~ made when Rol»ert beyond all don})r, was in a finan- cial position enabling him to make a gilt or any conveyance that he jdeased of his property, havin<' as before stated, a large surplus, a surplus of over $:iO,000. I'nler these circumsta- '••■s I think the plaintiff must fail, i think i]w eouveyance is perfectly good. But as the con- veyances as they stood seemed to imiicate that something was wrong, and to allord .some reason hat iiig leii ICO ne- av- Iti'i- lot ert )()0 4til| liid wua oy. I as I to wn, iOIl- ;ars s of liin her had Lhat I bo t in [jart s it oral <\ it the not uih- V'ice i|H,n tlio t is li a lant lan- -'■ty, ■ Cl'S con ison 24 for litigation and contesting the matter, ami as this statoincnt ot ilolunct! liocs tint cNtaiiy aid Judgments, on which they rely. 2. The evidence abundantly supports the findings of the Trial Juilge o.: all questions of fact found by him in favor of the defendants, 3. The land in question was purchased as a homestead for the family and should have been vested, at the time of the purchase, in the father Arthur Wallace, and the conveyance impeached was intended to carry into effect, and did carry into efi'ect, the original intention of the parties. 4. The circumstances and evidence show, and the Trial Judge h... found, that there was no intention on the part of the defendant Roliert Wallace in making said conveyance to defeat his creditors, but on the contrary the evidence supports the praiseworthy and honest rather than the fraudulent view of the transaction impeached, and the conclusion of the Trial Judge should 20 not therefore be interfered with. Ex parte Kelly, 11 Chy. D., 300. E.r parte Htubbin, 17 Chy. D., 58. Ex imrte Mercer, 17 Q. B. D., 290. Can- v. Garfield, 20 0. R., 2ls 5. The Bank of London, the real iiiaintiffs, had notice before dealing with the defendant Robert Wallace, that the lands in (piestion did not belonLC to him, and were not liable for hia debts, and should be taken to have dealt with him on this undor,standing. (i. There is no evidence that the defendant Robert Wallace was insolvent or unable to pay his creditors in full when he made the C'liveyance in (jiiestion. The Hank, the oidy complaining creditor, was secured, and the subsequent insolvency of the defendant Robert Wallace was caused by the failure of the Bank of Londdii and the Ontario Investment Association, and, but 30for these unlorseen disasteis, the said did'.iMant would have been in a p')sition to pay all his creditors in full. M. J). FPwVSER, April ISth, 1S91. Coumd jar Defendants. Mw