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![handle is hein.slavery/ssactsengr0891 and id is 1 raw text is: PAGE V. COX
[163] PAGE V. Cox. Nov. 18, 1851 ; April 20, 1852.
[See In re Flavell, 1883, 25 Ch. D. 93. Considered, Byrne v. Reid [1902], 2 Ch. 735.
See also Lindley on Partnership, 7th ed. pp. 469, el sel.]
A tradesman bequeathed his residuary estate, including his stock-in-trade, to trustees,
with a direction to convert into money all such parts as should not consist of
leaseholds or money in the funds; and to invest the same and pay the annual
income to Sarah, his wife; and after her decease to Mary, his wife's sister; and
after the decease of the survivor of Sarah and Mary he gave his residuary estate
to another person absolutely. After the date of the will Mary married, and her
husband and the testator entered into partnership, under articles which contained
a proviso that if the testator should die during the partnership, leaving a widow
surviving, such widow might, if she should think fit, continue to carry on the
partnership business with the surviving partner, and should be entitled to the
testator's share in the profits and excess of capital ; and if the testator should leave
no widow, or his widow should not desire to enter into the business, or if the other
partner should die during the partnership, the surviving partner to take upon
himself the partnership business and property, accounting and paying for the same
as therein directed. The testator died, leaving his widow, who, under this provision,
claimed his interest in the partnership. Held, that the provision in the articles
took the testator's share of the business wholly out of the provisions of the will,
and that the widow became entitled, under the partnership articles, to such share.
A trust may well be created in the absence of any expression importing confidence;
and the obligation on the surviving partner created by the partnership articles,
with reference to the legal interest in the partnership, did not in substance differ
from a trust, and therefore the articles of partnership created a trust in favour of
the wife, to arise on the death of the testator leaving a widow surviving, which
would attach on the property as it should then exist.
Thomas Page, the testator, carried on the business of a boot and shoemaker, and,
at the date of his will, he was solely interested in that business. By his will, dated
the 18th of August 1832, he gave certain specific legacies, and devised and bequeathed
the residue of his real, leasehold and personal estate unto and to the use of the
Defendant, Cook, and another, upon trust to convert into money such parts of his
residuary personal estate as should not consist of leasehold premises or money in the
funds, and to invest the produce thereof, and the ready money of which he should
die possessed, as therein mentioned, and during the life of his wife, Sarah Page, to
pa the rents and profits of his said real and leasehold estate, and the dividends and
annual produce of such investments, and of all such stocks, funds and securities, as
he might be possessed of at the time of his decease, unto the said Sarah Page, for
her separate use, without power of anticipation ; and, after her decease, during the
life of Mary Elizabeth Green, his wife's sister, to pay the said rents and profits,
dividends and annual produce unto the said Mary Elizabeth Green, for her separate
use, without power of anticipation ; and after the decease of the survivor of Sarah
Page and Mary Elizabeth Green to convey, assign and make over the said real and
leasehold estates, stocks, [164] funds and securities, and other his residuary personal
estate, to William Page, his heirs, executors, administrators and assigns.
Some time after the date of the will, and before December 1839, Mary Elizabeth
Green married James Shattock; and on the 24th of December 1839 the testator
entered into partnership with Shattock. Articles of partnership, dated the 24th of
December 1839, were entered into between them, whereby, after reciting that Page
had agreed to take Shattock into partnership with him in his said business, it was
agreed that the partnership should commence on the 25th of December 1839, and
continue for the term of their joint lives, determinable on twelve months' notice by
either party; that the present stock-in-trade of Page, including his shop-fixtures,
tools and implements of trade, which had been valued at the sum of £1000, should
be taken as capital to that amount brought into the partnership by Page; that any
10 EARE, 163.](ViewImageLocal?handle=hein.slavery/ssactsengr0891&div=1&collection=&method=preview&ext=.png&size=3)