Gambar halaman
PDF
ePub

XXVIII.

deaths, the person or persons to be nominated in that behalf Adoption.

as is hereinafter mentioned, to be the guardians of the persons and estates of the said F. B. and G. B. until they shall attain the age of twenty-one years, or until they shall marry under

that age, respectively. Covenant not 3. The said C. B. shall not nor will revoke the appointto revoke ap- ment hereby expressed to be made, and will not by deed,

.

will, or otherwise (except as herein is otherwise provided) appoint or apply for the appointment of any other person or persons except the said C. D. and E. D. to be guardian or guardians of the said F. B. and G. B. or either of them or

their respective estates. Surviving 4. In case of the death of either of them, the said C. D. guardian, may and E. D., before the said F. B. and G. B. shall attain

twenty-one years of age, or marry under that age respectively, , or before the sooner determination of this agreement as is hereinafter provided, it shall be lawful for the survivor of them, the said C. D. and E. D., by deed or will to nominate and appoint any person or persons, as from and after the decease of such survivor, to be guardian or guardians of the said F. B. and G. B., or either of them. And in that event the said A. B. shall and will execute and do all such assurances, acts and things as shall be reasonably required by the survivor of them, the said C. D. and E. D., or of the person or persons so nominated by him or her as aforesaid, for the purpose of confirming such nomination and more effectually appointing the persons or person so nominated to be the guar

successor.

revoke has been upheld, even though the guardian was a creditor of the father: Lecone v. Sheires, 1 Vern. 442.

The appointment of a guardian may be either in possession or remainder. Where several guardians are appointed, the guardianship does not determine on the death of one, but devolves on the survivors ; Eyre v. Earl of Shaftesbury, 2 P. Wms. 103 ; it is not assignable; Bedall v. Constable, Vaugh. 177; Villareal v. Meliish, 2 Sw. 533 ; Eyre v. Earl of Shaftesbury, supra; but the father may authorize the surviving guardian to nominate a person in the place of one who has died : Re Parnell, L. R., 2 P. & M. 379. The appointment may be until the child attains twenty-one years of age or for a less period; if no time is mentioned, the guardianship will continue during the minority in the case of male children, but in the case of females it does not appear to be clearly settled whether it will determine on marriage under twenty-one years. See Mendes v. Mendes, 1 Ves. sen., at p. 91; Roach v. Gowan, ibid., at p. 159.

The subject of guardianship will be fully considered later, tit. APPOINTMENT.

a

interfere in

XXVIII. dian or guardians of the persons and effects of the said F. B.

Adoption, and G. B. respectively.

5. The said C. D. and E. D., and the survivor of them, Father not to and after the death of such survivor, the person or persons to education be nominated by him or her as aforesaid, performing and of the

children (d). observing the stipulations herein contained, shall retain and have the custody, care and guardianship of the said F. B. and G. B. until they shall attain the age of twenty-one years, or marry under that age respectively, to the exclusion of the said A. B. and of any testamentary or other guardian appointed by him, and of all other persons claiming under him. And the said A. B. shall not himself, nor shall any other such guardian as aforesaid, or any person or persons claiming under him, or acting under, by, or with his authority, consent or privity, at any time or in any manner interfere with the training or management of the said children or either of them, or with their or her moral, intellectual or religious education or instruction, but the said A. B. and all other such guardians and persons as aforesaid shall permit and suffer

(d) It must be borne in mind that a stipulation of this kind is Whether a of doubtful efficacy. The question has frequently come before contract by a the Courts in cases of agreements made before marriage between father not to husbands and wives of different religious persuasions, that the religious, &c. children shall be brought up in a particular religion. In Andrew's education of v. Salt, Mellish, L. J., in delivering the judgment of the Court, children is said (L. R., 8 Ch. at p. 636): “We are of opinion that such an

binding. agreement is not binding as a legal contract. No damages can be recovered for a breach of it in a court of law, and it cannot be enforced by a suit for specific performance in equity. We think that a father cannot bind himself conclusively by contract to exercise, in all events, in a particular way, rights which the law gives him for the benefit of his children, and not for his own.” The Court has repeatedly refused to compel a father to fulfil such a promise. See Re Meades, Ir. L. R., 5 Eq. 98; Re Agar-Ellis (C. A.), 10 Ch. D. 49. And after the father's death the bringing up of the children in his religion has been enforced ; Davis v. Davis, 10 W. R. 245; Re Newbery, L. R., 1 Ch. 263 ; Hawksworth v. Hawksworth, L. R., 6 Ch. 539; unless the father has by his conduct abandoned his right to have the children brought up in. his own faith, or indicated a wish to the contrary: Andrews v. Salt, supra ; Re Clarke, 21 Ch. D. 817. But where, after the father's death, the mother had changed her faith, and the child had, under her charge, been for several years brought up in, and acquired the distinctive doctrines of the mother's faith, the Lords Justices refused to remove the child from the mother's custody, or to interfere with the course of religious instruction : Stourton v. Stourton, 8 De G., M. & G. 760.

XXVIII. the said C. D. and E. D. and the survivor of them, and, Adoption.

after the death of such survivor, the person or persons to be nominated as aforesaid, to bring up the said F. B. and G. B. until they should attain the age of twenty-one years, or marry under that age, at such places of residence, under the care of such persons, and in such form of religion, and gene

rally in such manner as they, he or she shall think proper. On breach by 6. If the said A. B., or any guardian appointed by him, or the father of the stipula- any person or persons claiming under him or acting under, by tions, the

or with his authority, consent or privity, shall at any time agreement to be voidable by reclaim or demand the custody of the said F. B. and G. B., adoptors.

or either of them, or shall interfere with their or her training, management, education or instruction, or if the said A. B. shall not perform and observe all and every of the stipulations herein contained and on his part to be performed and observed, then and in any such case it shall be lawful for the said C. D. and E. D., and the survivor of them, and after the decease of such survivor by notice in writing under their, his, or her hands or hand, and addressed either to the said A. B. or to the guardian or other person setting up such claim or demand, or so interfering as aforesaid, to put an end to the agreement hereby expressed to be made, and thereupon the same shall absolutely cease and determine : PROVIDED ALWAYS that in such event the said A. B. or his estate shall be liable to pay and satisfy all debts and liabilities incurred by or in anywise for the benefit of the said F. B. and G. B., or either of them, which at the time of such cesser of this agreement shall not have been paid and satisfied.

IN WITNESS, &c.

XXIX. AGREEMENT for the AMALGAMATION of

tuo limited COMPANIES, and transfer of Business.

ARTICLES OF AGREEMENT made the day Parties.

18—, BETWEEN the A. Company, Limited (hereinafter called the old company), of the one part, and the B.

Company, Limited (hereinafter called the new company), of Covenant and the other part. Whereby the old and new companies agreement.

respectively, for themselves and their respective successors and

of

is to say:

tion.

assigns, hereby mutually covenant and agree as follows, that XXIX.

Amalgama

tion of Com1. That the old and new companies respectively shall

panies. (subject to clause 9 of this agreement), amalgamate with Amalgamaeach other, and to this end the old company shall in manner and upon the terms hereinafter mentioned, sell to, and the new company shall purchase and take to, all and singular the real and personal estate and effects (including capital, funds, and assets), whatsoever or wheresoever situate, of the old company, and also the goodwill and all benefits and advantages whatsoever of the old company of, in, or connected with, or incidental to the business heretofore carried on by the old company at

2. The consideration to be paid by the new company to Considerathe old company for such purchase shall be the sum of £

tion. represented by and to be taken in shares in the new company of 21. each, upon each of which said last-mentioned shares the sum of 11. shall be considered and treated as paidup, and which said new shares respectively are to be allotted in such manner, and to such persons as the old company may from time to time direct, or the certificates of such new shares respectively handed over and delivered in manner hereinafter mentioned. 3. In addition to the said purchase-money of £

Old represented by shares as respectively aforesaid, the to be indem

nified against new company shall as from the

ilities. take upon themselves and bear, pay, and discharge, and well and effectually indemnify the old company and all shareholders therein from, and against all debts, claims, and liabilities whatsoever, and of what nature or kind soever (other than such shareholders in respect only of the sums paid upon or represented by the shares they respectively hold), now subsisting, or existing against the old company, and from and against all claims and demands in respect thereof respectively, and the new company shall also take upon themselves, and well and effectually indemnify the old company, and the shareholders therein, from or against the obligation of paying or discharging the sums of money (if any) which shall or may become hereby payable to shareholders in the old company under the winding-up hereinafter mentioned, to the extent nevertheless, only of the assets of the old company, which may come to the hands of the new company, or of which they may obtain the benefit or advantage.

company

day of

184,

to be wound

XXIX. 4. The old company shall forthwith take all necessary Amalgamation of Com. steps to wind up and dissolve the old company pursuant to panies.

the provisions in that behalf contained in the Companies Old company Acts, 1862 and 1867, and to obtain the extinguishment and

cancellation of all shares in the old company, and the appointup.

ment of liquidators whereby and by whom this agreement
may be in all respects duly and properly carried out and

effectuated.
Shares in old 5. The said several shares in the new company to be
company to be
exchanged for obtained from them as aforesaid shall be dealt with by ex-
shares in new changing them for shares in the old company in the propor-
company.

tions following, that is to say: every shareholder in the old
company for and in respect of and in exchange for every
share he holds therein of 101. and upwards, upon which 21.
has been paid, shall have and take in the new company a 21.
share, whereon 11. shall be treated as paid, and every share-
holder in the old company for and in respect of every two
shares he holds therein of 51., upon which 11. has been paid,
shall have and take in the new company a 21. share, wherein
11. shall be treated as paid, and all such shareholders respec-
tively in the old company shall make, do, and execute all
such necessary acts and deeds as may be required, as well for
transferring, relinquishing, and giving up all shares held by
them respectively in the old company, as for taking to and
constituting himself a shareholder in the new company in
respect of the shares therein which he is to take in exchange,

as respectively aforesaid.
Power of 6. In the event of the old company succeeding in passing
liquidators.

the necessary special resolutions for and in all respects
winding-up and dissolving the old company, as aforesaid, the
carrying out of the stipulations and contracts on the part of
the old company herein contained shall devolve upon, and in
all respects be exercised by the liquidators to be appointed
pursuant to such resolutions, who shall have full discretionary
powers as to the manner and mode of, and the time in which
they realize the assets of the old company, and such liqui-
dators shall be entitled to receive from the new company, im-
mediately upon the due passing and confirmation of such
special resolutions, and without waiting for any realization of
the assets of the old company, the said purchase-money or
certificates for shares in the new company respectively allotted
to such persons as they may direct, as respectively aforesaid,

[ocr errors][ocr errors]
« SebelumnyaLanjutkan »