HE question in this cause related to the validity, in equity, of a devise made by a surviving trustee of the trust estates, having regard to the particular expressions used in the will creating the trust, and to the fact, that no express power of appointing new trustees was thereby given. The circumstances which gave rise to the question are as follows: Richard Titley, the testator, by his will dated in 1844. July 1. 6. 8. A testator de vised real and tain trusts, sidered, the testator in tended to be performed by his trustees named, and the survivors and survivor, 1828, devised and bequeathed his real and personal "their signs, or by the executors or administrators, of the survivor. The will contained no power to appoint new trustees. The surviving trustee devised and bequeathed the trust est ates and powers to A., B., and C., upon the trusts of the first will: Held, that this devise and the appointment of A., B., and C. as trustees, were valid. Where a trust estate is limited to several trustees, and the survivors and survivor of them, and the heirs of the survivor of them, the surviving trustee does not commit a breach of trust by not permitting the trust estate to descend, or by devising it to proper persons, on the trusts to which it was subje ct in the hands of the surviving trustee. Semble. 1844. ROWLEY v. ADAMS. did so far consent to and encourage the business being carried on by the surviving partners, that although they did not take any active part in carrying on the trade, it may be properly said, the business was carried on by the surviving partners with their concurrence; and for these reasons, and because there was no direction to ascertain the state of the assets on the 1st of January 1825, I am of opinion that the thirteenth, fourteenth, fifteenth, and nineteenth exceptions must be disallowed. The findings of the Master upon subjects of the sixteenth, seventeenth, and eighteenth exceptions, appear to me to be in accordance with the evidence; and the exceptions must, for that reason, be overruled. I think that Mr. Coote was acting for the executors as well as for George Wyatt during the negotiation. The twentieth exception relates to the real estate, and was not argued. (a) (a) This exception was subsequently argued, and the further directions and costs disposed of; see post. An appeal to the House of Lords is however pending. vised real and personal estate, on cerwhich, as the Court con THE question in this cause related to the validity, A testator dein equity, of a devise made by a surviving trustee of the trust estates, having regard to the particular expressions used in the will creating the trust, and to the fact, that no express power of appointing new trustees was thereby given. The circumstances which gave rise to the question are as follows: Richard Titley, the testator, by his will dated in 1828, devised and bequeathed his real and personal estate to his wife, his son Richard, and Robert Tebbutt, tain trusts, sidered, the testator in tended to be performed by his trustees named, and the survivors 1 and survivor, and by the heirs and as "their signs, or by the executors or administrators, of the survivor. The will contained no power to appoint new trustees. The surviving trustee devised and bequeathed the trust est ates and powers to A., B., and C., upon the trusts of the first will: Held, that this devise and the appointment of A., B., and C. as trustees, were valid. Where a trust estate is limited to several trustees, and the survivors and survivor of them, and the heirs of the survivor of them, the surviving trustee does not commit a breach of trust by not permitting the trust estate to descend, or by devising it to proper persons, on the trusts to which it was subje ct in the hands of the surviving trustee. Semble. 1844. ROWLEY υ ADAMS. report thereof (a); and thereupon the parties were to be at liberty to apply to the Court for such further order as should be necessary, and the usual accounts were directed to be taken of the testator's personal estate, debts, and legacies, and the Master was to inquire as to the real estate. In his judgment, on making this order, Lord Cottenham noticed, that the Plaintiffs were claiming their legacies out of a specified part of the testator's estate, and could not be in a better situation than a legatee of such specific part would be, and that no specific legatee could recover the thing bequeathed, without proving the existence of the thing bequeathed, and that it was not wanted to satisfy prior charges. The Master made a separate report, dated the 12th of June 1837, and thereby found, from such evidence as was before him, that hops belonging to the brewery business at the testator's death were, according to one estimate, of the value of 7993l. 15s., and, according to another estimate, of the value of 48931. 15s., and that, besides the book debts owing to the bankers, the partnership was indebted to other persons to the amount of 17,4631. (b); and he expressed his opinion to be, that, by reason of the non-production of the books of account therein mentioned and the circumstances therein contained, he could not take the account of the partnership dealings and transactions by the order directed to be taken, further than before mentioned, and that he had no means whatever of taking any account as between the individual partners in the business. (a) See Turner v. Corney, 5 Beavan, 515. (b) He also found that the Exceptions stock of malt on the premises at the death of the testator was worth 13,015. 16s. Exceptions were taken to the separate report, and the Master made his general report on the 1st of May 1838, and the cause came before me on the exceptions and for further directions. The exceptions were overruled, and on the 9th of May 1839 it was referred back to the Master to make the inquiries which I have before particularly mentioned. (a) This order was reheard before the Lord Chancellor, who confirmed it (b), and, in pursuance thereof, the Master made his report of the 16th of December 1843, which is now under consideration. The general result of the Master's report is, that at the time of the testator's death the partnership assets were of the value of 89,9617.; that the debts owing from the firm to strangers amounted to 39,748., leaving a surplus of somewhat more than 50,000l.; that the firm was indebted to the testator in more than 57,000l.: and the Master has concluded, that the executors might, without their wilful default, have obtained out of the assets, and for the testator's estate, a sufficient sum to pay the two legacies of 12,000l. each, or might have obtained security for them. It is obvious that the Master, although he has used the utmost diligence, has not been able to obtain results satisfactorily shewing the state of the assets and liabilities of the firm. Having used his best endeavours to obtain accurate results, he states, in his different reports, that, save as he has done, he is unable, in consequence of the non-appearance of the books relating to the partnership, to state the property and effects of the partnership existing at the testator's death, or by whom they (a) Antè, p. 596. (b) 4 Myl. & Cr. 534. were 1844. ROWLEY v. ADAMS. |