Had the defendant in this case refused to allow the plaintiff to participate in the enjoyment of the joint property there would undoubtedly have been an infringement on the defendant's rights.

In an action of ejectment between cotenants of real estate a refusal by one of the tenants to permit the other to enjoy the common property has been held equivalent to turning him out. Roberts v. Moore (1860) 3 Wall. Jr. 292, Fed. Cas. No. 11,905. The court here said: "It is true, as a general rule, that the possession of one joint tenant, or tenant in common, is the possession of the other; and that a mere failure to account for the proceeds by the tenant in actual possession does not amount to an ouster. But there need be no actual turning out. A refusal by one joint tenant, or tenant in common, to let his cotenant come in, or to participate in the enjoyment of the common property, is equivalent to turning him out. It is a question of intent by the actual occupant, and this intention may appear as well by actions as by words. It requires no special or verbal notice, but may be inferred from outward acts. Open and notorious claim of ownership, and exercise of exclusive right, amount to actual ouster." J. T. W.

[ENGLISH COURT OF APPEAL.]

MARTIN v. MARTIN.

L. R. [1919] Prob. 283.

Permanent alimony – Income of respondent — Computation — Voluntary allowance.

Upon an application for an order for permanent alimony by a wife who has obtained a decree for judicial separation, the court, in assessing the amount to be paid by the husband, will take into consideration a voluntary allowance made to him by trustees under a discretionary trust to apply the income of a fund for the maintenance and support or otherwise for the benefit of all or such one or more exclusively of the other or others of the husband, wife, and their issue.

Malo v. Malo (1786) 2 Swabey & T. 657, note; Clinton v. Clinton (1866) L. R. 1 P. & D. 215, 14 L. T. N. S. 257, 14 Week. Rep. 545; Moss v. Moss (1867) 15 Week. Rep. 532; and Bonsor v. Bonsor, L. R. [1897] Prob. 77, 66 L. J. Prob. N. S. 35, 76 L. T. N. S. 168, 45 Week. Rep. 304, followed.

- Review of order allowing.

An order fixing the amount of permanent alimony to be paid to a wife who has obtained a decree of separation, in making which a voluntary allowance payable to the husband in the discretion of trustees has been taken into account, may be reviewed by the court in case the trustees

subsequently formulate a scheme for the application of the income of the trust fund for the maintenance of the husband and his wife and issue, who are the sole objects of the trust, and may be discharged or suspended.

Decision of Lord Coleridge, J., affirmed.

(June 24, 1919.)

APPEAL from a decision of Lord Coleridge, J.

The petitioner, Ida May Martin, was married to the respondent, Noel Martin, on December 3, 1898. There was one child of the marriage, a boy of about nineteen years of age. A few years after his marriage the respondent began to suffer [284] from epileptic fits, and was in 1914 certified as a lunatic. In August, 1917, the petitioner left him under advice, and he then went to live with his mother, where he was nursed by a woman with whom he afterwards committed adultery and with whom he was now living.

On May 9, 1918, the petitioner obtained a decree for judicial separation.

On November 30, 1918, the petitioner presented a petition for permanent alimony, in which she alleged that the respondent "is now possessed of or entitled to the income amounting before deduction of tax to the sum of 430l. per annum, or thereabouts under the will dated October 20, 1899, of his father, the late William Martin, of the city of Birmingham, architect, and of whose will the present trustees are believed to be the testator's widow, Esther Jane Martin and his son Herbert Martin."

In answer to the petition the respondent made an affidavit in which he stated: "I was entitled to the income from a sum of 10,000l. under my father's will as alleged in the said petition, but I have forfeited the said income by bankruptcy and am now being supported by a voluntary allowance made by the trustees of the said will. Save as aforesaid I have no property, means, or source of income whatsoever."

Herbert Martin, the petitioner's brother and one of the trustees of the will, also made an affidavit in which, after repeating in effect the same facts with regard to the nature of this income, he stated that "for the year 1917-1918 the net income from the said fund was 3931. 4s. 4d. This income the trustees have in

their discretion applied for the maintenance of the respondent, who has no other means or resources. The respondent is of unstable mind. He is subject to fits, and has been admitted under certificate to a lunatic asylum. Owing to his condition he requires someone to constantly look after him, and also having regard to such condition and age of his mother (eighty years) he cannot become a resident in her home."

The respondent was adjudicated a bankrupt on April 2, 1910. By the will of William Martin, the respondent's father, the [285] trustees were directed out of the share of his son Noel Martin in his residuary estate to provide and set aside a sum or fund of 10,000l. and to stand possessed thereof and of the investments from time to time representing the same (thereinafter referred to as "Noel Martin's trust fund") "upon trust to pay the income thereof unto or to permit such income to be received by my son Noel Martin until he shall assign, charge, or otherwise dispose of the said income or some part thereof, or become bankrupt, or do, or suffer, something whereby the said income if belonging absolutely to him, or some part thereof, would become payable to, or vested in, some other person (whichever of the said events shall first happen), and if the trust hereinbefore declared shall determine in the lifetime of the said Noel Martin then in trust during the remainder of the life of the said Noel Martin to pay and apply the income of Noel Martin's trust fund for the maintenance and support or otherwise for the benefit of all or such one or more exclusively of the other or others of the said Noel Martin and his wife and his issue for the time being (if any) or if he shall for the time being have no wife or issue living then for the benefit of all or such one or more exclusively of the other or others of the said Noel Martin, and his brothers, sisters, nephews, and nieces for the time being in such manner in all respects as my trustees in their uncontrolled discretion shall think fit, and from and after the decease of the said Noel Martin then in trust to pay out of the income of Noel Martin's trust fund the sum of 501. a year clear of deductions to his widow (if he shall leave a widow) during her natural life and subject to such payment from and after the death of the said Noel Martin my trustees shall stand possessed of the capital of Noel Martin's trust fund in trust for the children of the said Noel Martin or any of

them, or any of their issue, in such shares if more than one, and in such manner as the said Noel Martin shall by any deed or deeds or by will appoint, and in default of such appointment, and in so far as any such appointment shall not extend in trust. for all the children of the said Noel Martin, who being male shall attain the age of twenty-one years or being female shall attain that age or marry in equal shares, and if there shall [286] be only one child the whole to be in trust for that one child."

By an order dated May 21, 1919, Mr. Registrar Barnard ordered that "Noel Martin, the respondent, do out of his present income and until further order pay or cause to be paid to Ida May Martin, the petitioner, permanent alimony at and after the rate of 2l. 10s. per week, to commence from the date of the final decree in this cause and to be payable weekly. Free of income tax."

On June 2, 1919, Lord Coleridge, J., on an appeal by the respondent affirmed the Registrar's order.

The respondent appealed.

Micklem, K.C., and W. O. Willis, for the respondent. The question is whether under the circumstances of this case there is any fund out of which the court can order alimony to be paid. The trustees take the view that their discretion under the will ought not to be fettered.

[Warrington, L.J.: The court has no jurisdiction to interfere with the discretion of the trustees.]

There is no case in which an order has been made for alimony where the husband was only entitled to such an allowance as the trustees should in their discretion think fit to make him. Haviland v. Haviland (1863) 3 Swabey & T. 114, 32 L. J. Prob. N. S. 67, is in the respondent's favor. It was there held that the court ought not to order payment of alimony out of a voluntary allowance. In Clinton v. Clinton (1866) L. R. 1 P. & D. 215, 14 L. T. N. S. 257, 14 Week. Rep. 545, the order was made in the form that the alimony should be payable only so long as the respondent was in receipt of a rent charge which was voluntarily paid to him by the trustees. In the present case the wife could have gone to the trustees and asked them to exercise their discretion in her favor. It is a good ground for setting aside the order

that the husband has no moneys coming to him. The judge made the order in order to put pressure on the trustees. It would have been open to the petitioner to take proceedings under § 116 of the Lunacy Act 1890 (53 & 54 Vict. chap. 5).

[Warrington, L. J.: The trustees appear to have thought only of the husband and not of the wife.]

[287] The trustees have always been ready to make a reasonable allowance to the wife. The judge had no evidence before him of any money payments being made to the respondents. It is submitted that the court should adopt the course taken in Clinton v. Clinton, supra, and ascertain from them their views. Where it is not shown that any money payments are being made to the husband it is a novel thing for the court to make an order for alimony against him. In the present case the money has been applied by the trustees in payment of the respondent's rent and housekeeping bills. In Moss v. Moss (1867) 15 Week. Rep. 532, and Bonsor v. Bonsor [1897] Prob. 77, 66 L. J. Prob. N. S. 35, 76 L. T. N. S. 168, 45 Week. Rep. 304, it was admitted that money had been paid to the husband. In the present case the evidence is that the respondent has been maintained but has no property. The court will not impose an obligation on him to pay money unless it is satisfied that he has the means to discharge it. It cannot be said in this case that there is any money coming to the respondent.

[Warrington, L.J., referred to r. 92 of the Divorce Rules.] [Bayford, K.C.: Maintenance is governed by the Matrimonial Causes Act 1907 (7 Edw. VII. chap. 12). Rule 92 comes in as the result of § 22 of the Matrimonial Causes Act 1857 (20 & 21 Vict. chap. 85).]

It is submitted therefore (1) that the respondent has no money out of which the alimony can be paid; (2) that there are no means of enforcing an order for alimony, if made; and (3) that where there is a mere discretionary trust in favor of several persons and there is no evidence that it has been wrongly exercised the court ought not to make an order fettering the discretion of the trustees. The order of Coleridge, J., was therefore wrong and ought to be set aside.

Bayford, K.C., for the petitioner. The evidence is that the trustees are paying the whole of the income of the fund to the