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TMI Blog1958 (7) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... very helpfully discussed by counsel in argument on the basis of alternative views as to the general law, but I do not propose to deal with any of them except those which arise on the footing that the position is as below stated. First, it has been axiomatic since before the days of Blackstone's Commentaries that, at common law, there can be no assignment of the office of executor as it is an office of personal trust. Leaving out of consideration certain specific statutory provisions (such as those of the Public Trustee Act, 1906), which do not apply to the present circumstances, it follows that the rights, powers and duties, of an executor cannot be assigned by him: nor can an executor properly assign property he holds by virtue of his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held to have vested or be today vested in National. Thirdly, it has been made clear by the speeches in Nokes v. Doncaster Amalgamated Collieries Ltd. [1940] AC 1014; 56 TLR 924; [1940] 3 All ER 549; 11 Comp Cas 83 that schemes and orders made by virtue of sections 206 and 208 of the Companies Act, 1948, can only transfer such rights, powers, duties and property as are capable of being lawfully transferred by a party to the scheme if no such sections of the Companies Act existed. It is not necessary in a scheme to exclude specifically from its operation things incapable of such transfer as general words in the scheme and any order in furtherance thereof must be taken to operate in a manner not repugnant to the general law of Engla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative of any deceased person, be continued by or against the transferee company." On a normal construction of the above words the present action is not one ordered to be continued by National. If, contrary to my view, the above words "personal representative" had in the context of the scheme as a whole to be construed as referring only to a " personal representative who had been granted probate, " then the order would purport to cause a right or duty of Grindlays as an executor to be carried out by some third party, would contain a provision repugnant to the general law of this country, and would to that extent have had to be treated as of no effect. There is no other provision in the scheme or order that can lay upon National a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 and 208. Thus, whichever I adopt of the rival interpretations of clause 7(1) put forward by Mr. Tolstoy and Mr. Oliver Smith, respectively, as to whether or not, on its proper construction, clause 7(1) purports to prohibit the continuance of the present action, Grindlays in law can and indeed should continue to act as first plaintiffs in it. It has been submitted by Mr. Oliver Smith that the vital words in subsection (1), upon a natural construction, mean exactly what they say and purport to constitute a relevant prohibition. Mr. Tolstoy has put forward a more intricate argument to the contrary an argument which included a submission that there has been an unusual use of the words "take out" in relation to probate. For the purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be granted to them or their syndic or nominee in the event of one of the wills being proved. Reference has been made to rule 30 of the Public Trustee Rules, 1912, as amended, Public Trustee Rules, 1912, as amended. Rule 30(1): "Any corporation constituted under the law of the United Kingdom or of any part thereof and having a place of business there and empowered by its constitution to undertake trust, business and being either ( a ) a company incorporated by special Act or Royal Charter, or ( b ) a company registered (whether with or without limited liability) under the Companies (Consolidation) Act, 1908, having a capital (in stocks or shares) for the time being issued of not less than 250,000, of which not less than 100,000 shall h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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