1838.-Feary v. Stephenson. for his own use, to the whole of the property: he also stated that he had separated from his wife in consequence of her misconduct. Mr. Pemberton and Mr. Thompson, for the plaintiff. Mr. Kindersley and Mr. Stuart, contra, for John Dixon. Mr. Perry, for the trustees. THE MASTER OF THE ROLLS held that the plaintiff was entitled, for her separate use, to the income of the trust funds.[1] FEARY V. STEPHENSON. 1838 November 16; December 7, 8. One of several co-plaintiffs mortgaged his interest and became insolvent pending the suit. A supplemental bill was filed by the other co-plaintiffs against the mortgagee and the provisional assignees alone: Held, that the defendants in the original suit, who were accounting parties, ought also to have been made parties to the supplemental suit. THE original bill in this case was filed by Samuel Feary, A. Manning, and W. C. Bromley, and Elizabeth his wife, against Joseph Stephenson, and William Read, (trustees under the will of John Stephenson,) Elizabeth Ste phenson the executrix, and other parties interested in the residue of [*43] the testator's estate, for an *account of the real and personal estate of the testator, and for payment of one-eighth part thereof, to which Elizabeth Bromley, as one of the children of the testator, was entitled. W. C. Bromley and Elizabeth Bromley, it appeared, had assigned their share to Feary, in consideration of a sum of 6007.; but Feary, by a memorandum endorsed on the assignment, admitted this sum to be the money of Manning, and that he was a mere trustee for him. Feary afterwards purchased of Manning, and became entitled to one-half of the said share. These facts appeared on the original bill. Feary subsequently assigned his interest to Reeves, by way of mortgage, and afterwards took the benefit of the insolvent debtors' act. A supplemental bill stating these circumstances, was then filed by Manning and Bromley and his wife, against Reeves and the provisional assignee alone. The original and supplemental suits now came on for hearing. Mr. Kindersley and Mr. O. Anderdon, for the plaintiffs. Mr. Pemberton and Mr. Jeremy, for the defendants, the trustees, objected to the case proceeding, on the ground, that Stephenson and Read had not been made parties to the supplemental bill. Mr. Cooper, for one of the defendants, referred to a case of Lloyd v. Meredith.(a) (a) At the rolls, 15th March, 1838, unreported. [1] The decisions in this and the preceding case are, evidently, merely corollaries from the decision in Tullett v. Armstrong. 1838.-Feary v. Stephenson. *THE MASTER OF THE ROLLS:-The original bill was filed by [*44] three persons, alleged to have an interest in the testator's estate, and it was answered by the accounting party; Feary and Manning and Bromley and wife were the parties to whom the defendants were called on to account. The bill is brought to a hearing, and then it is admitted that Feary has no interest; therefore, as it now stands, the suit is prosecuted by a party who has no interest; and it is then alleged, that there is another suit to which the assignees of Feary are made parties. I must have some authority produced before I can allow this case to go on. The cases in which the interest of a defendant has devolved upon another person, raised a very different question.[1] The case stood over to produce authorities. November 7.-Mr. Kindersley and Mr. O. Anderdon. It is not necessary to make the original defendants parties to a supplemental bill, unless they have an interest in the supplemental matter. This was decided by Sir John Leach in Bignall v. Atkins.(a) The same objection, as in the present case, was raised in Greenwood v. Atkinson, (b) but it was overruled by the ViceChancellor. What possible interest can the trustees have in the matters stated in this supplemental bill? their liability is neither increased nor diminished. Where, in the progress of a suit, a child comes into esse, and who, being one of a class, becomes interested in the subject matter of the suit, it is the practice to file a supplemental bill against that child alone, and not to make all the other original defendants parties thereto. Again, where in the progress of a suit it becomes necessary to revive, the bill of re- [*45] vivor is not filed against all the original defendants, but only against the party in respect of whose interest the revivor becomes necessary. No advantage can result from allowing this objection, but the expense of the suit will in this, and all other similar cases, be uselessly increased by making all the original defendants parties to a new bill. They also cited Redesdale, p. 62. Mr. Cooper, for another defendant. Mr. Reynolds, for the provisional assignee. THE MASTER OF THE ROLLS, without calling for a reply. There being no authority produced, I am bound to allow the objection. An accounting party ought to know, who it is, that calls upon him for an account. The case is just as simple as this, a party calls for an account, and the defendant, at the hearing, is ready to account, and he is then for the first time informed, [1] As to the necessity of a plaintiff's having an interest in the subject in controversy, see The King of Spain v. Machado, 4 Russ. 225. Cuff v. Platell, id. 242. Makepeace v. Haythorne, id. 214. Tallmadge v. Pell, 9 Paige, 412. Egan v. Heenan, 1 Flan. & Kel. 39. Page v. Town. send, 5 Sim. 395. Clason v. Lawrence, 3 Edw. Ch. Rep. 53. Oakey v. Bend, id. 482. 1838.-Feary v. Stephenson. that some of the plaintiffs have no right to call for such account, or that one of them has transferred his right to some one else of whom the accounting party never heard before. Is it possible to support a record in such a state? I regret the extra expense to which the parties will be put by allowing the objection, but it would be much more to be regretted, if an accounting party were to be ignorant to whom he is to account, up to the very time of the hearing. The cases cited have nothing to do with the present; the case of a defendant's interest being transferred is very different, for the plaintiffs remain the same to the end.[1] In the cases referred to, where the interest of one [*46] of the defendants was transferred, the only thing *necessary was, that the plaintiff should bring before the court a proper substitute for such parties.[2] [1] Where trustees, defendants, are changed pending a suit against the trust fund, it is not absolutely necessary to bring them before the court although the plaintiff has a right to do so, before a decree; and in that case, supposing the cause to be at issue, it should be done by a supplemental bill. The North American Coal Co. v. Dyett, 2 Edw. Ch. Rep. 115. And see 10 Sim. 239, n. 1. [2] In Dyson v. Morris, 1 Hare, 420, Wigram, V C., said; The question then is, whether the mortgagor ought to have been made a party to the supplemental bill. I do not mean to decide any general proposition with respect to the cases which require that the defendants to an original bill should be parties to a supplemental bill. If compelled, which I am not, to express an opinion upon that point, I should rather incline to say, that the cases in which the parties to the original bill were necessary parties to a supplemental bill, were those, in which the interests of the original defendants required that such new parties should be before the court, and that the cases in which the parties to the original bill were not necessary parties to the supplemental bill were those in which the new parties are brought before the court in respect of the interest of the plaintiff, or of the new defendants. It is sufficient, however, in this case to say, that the decision in Greenwood v. Atkinson, (5 Sim. 519,) which was come to after argument, was followed in the Attorney General v. Pearson, (7 Sim. 302,) in Semple v. Price, (10 Sim. 238,) and was not disapproved of by Lord Langdale in Feary v. Stephenson. Upon these cases, I observe only that the practice which they establish cannot possibly work injustice in this case. The original and supplemental causes are heard together. The mortgagor has a right to insist that the decree shall provide for the reconveyance of the estate upon payment of the mortgage money, and it is only for the purpose of such reconveyance, that the executors of E. T. are necessary parties to the cause. If the court cannot by means of the original or supplemental bill make such a decree as the mortgagor is entitled to, the suit must fail; but if the original and supplemental bill do enable the court to make the decree to which the mortgagor has a right, it is obvious that he has no reason to complain of the form of the record." In a subsequent case, Jones v. Howell, 2 Hare, 342, 350, the ViceChancellor speaking of his previous decision, says. "In Dyson v. Morris, I stated my impression of the general rule on the subject of making parties to the original bill, parties to a supplemental bill to be, that the original defendants were necessary parties where their interests required that the new defendants should be brought before the court for the purpose of deciding questions between the original and new defendants: and that the original defendants were not necessary parties to the supplemental bill, when the new defendants were brought before the court to contest some question with the plaintiff, in which the original defendants had no interest. To this rule there may be exceptions and cases not calling for its application. In Dyson v. Morris, I availed myself of the direct authority of Greenwood v. Atkinson, and the tacit authority of the other cases, to make that decree which appeared substantially just, and by which expense would be saved. The executors of E. T. in that case, enabled me by decree, and at once, and without further litigation or inquiry, to give the mortgagor, (the cbjecting party,) all he asked against those executors, 1838.-Grafftey v. Humpage. The cause was allowed to stand over, with liberty to add parties by amendment, or otherwise. Mr. Pemberton asked for the costs of the day, on the ground, that his clients not having been made parties to the supplemental bill, they had no opportunity of raising the objection by their answer, and His Lordship, on that ground, ordered the plaintiffs to pay such costs. 1838: July 13, 14; November 8. GRAFFTEY V. HUMPAGE. By a marriage settlement certain specified property of the wife was settled, with an ultimate limitation, in default of children, to her next of kin, and the husband covenanted to settle any property which his wife, or he in her right, should thereafter, during the coverture, succeed to the possession of, or acquire on like trusts. At the time of the marriage, a sum of money, which was not mentioned in the settlement, stood settled, in trust, for the wife for life, with remainder to her children, with remainder as she should appoiut, and in default thereof, "to her executors, administrators and assigns." The husband survived the wife, there were no children, and the wife made no appointment: Held that, after the death of the husband and wife, the next of kin of the wife, and not the representatives of the husband, were entitled to the fund. The words "executors and administrators" have in some cases been construed to mean next of kin, but the words "executors, administrators and assigns" do not admit of that interpretation. ABRAHAM HALL, by his will, dated the 3d October, 1793, gave 40007. to trustees, on trust, to pay the interest thereof to his wife and daughter equally, share and share alike, for their sole and separate uses, independent of any husband; and after the decease of either of them, the whole interest was to be paid to the survivor of his wife and daughter, for her separate use for life; and after the decease of the survivor, the interest was to be applied to the maintenance of the children of the daughter, who should be living at the death of the survivor of the wife and daughter, till *they attained [*47] the age of twenty-one years, and the capital was to be transferred to such children, when they attained twenty-one, equally. And in case the danghter should die without leaving any such children, (which event happened,) the testator gave one moiety of the sum of 4000l. to his brother John namely a conveyance. The mortgagor obtained by the decree in Dyson v. Morris, at once, and without litigation, all he asked: there was nothing more to try; and I availed myself of the authority of the cases referred to for the purpose of saving expense, when I could at once give the objecting party all he could claim as the ground of his objection. The case may be very different where I cannot at once give the objecting party all he asks: where the rights of the co-defendants are to be litigated inter se, and I cannot immediately decide and secure those rights. Where there is or may be-a case between co-defendants, which each as against the other, claims the right to litigate-the rule of the court, as I understand it, is, that every defendant shall have an opportunity of stating upon the record the case he relies upon against every party to the cause with whom he may have rights to litigate. I think Greenwood v. Atkinson was not meant to deeide anything opposed to this principle, &c. &c. Feary v. Stephenson supports the same proposition. In the application of undisputed principles to individual cases, differences of opinion must inevitably occur," &c. And see 10 Sim. 239, n. 1. 1838.-Grafftey v. Humpage. Hall, and the other moiety (which was the sum in question in the cause) to such persons as the daughter, whether covert or sole, should by deed or will appoint, and in default of appointment, to the executors, administrators, or assigns of the daughter. After the date of the will, and in 1794, the testator's daughter married the Rev. George Vowell, by whom she had no issue, and he died soon after the marriage, in the testator's lifetime. The testator died in December, 1800, and in the beginning of 1807, Mrs. Vowell, the testator's daughter, then a widow, was, under his will, entitled to the interest of the 4000%. as to one moiety in possession, and as to the other moiety in remainder, after the death of her mother Anna Hall, for her life, to her separate use; and a moiety of the capital was limited to her executors, administrators, or assigns, subject to the contingent interest of children, and to an absolute power of appointment in herself. She was at the same time entitled absolutely to the sum of 50667. 13s. 4d. 3 per cent. consolidated bank annuities, standing in her own name, and to the sum of 45007. sterling, which was vested on securities in her own name. In that state of things, and previously to the marriage which afterwards took place between Mrs. Vowell and Thomas Humpage, a settlement, dated the 25th day of March, 1807, was executed by and between Mrs. Vowell of the first part, Thomas Humpage of the second part, and Joseph Wilson, [*48] John Clayton, and Samuel Mills, *who were trustees, of the third part; and thereby, after reciting that Mrs. Vowell was possessed of, or entitled to the 50667. 13s. 4d. 3 per cent. consolidated Bank annuities, and the 45001. sterling, and that it was agreed that those sums should be settled as thereinafter mentioned; and that all such future fortune which Mrs. Vowell should acquire or succeed to, should, when the same should accrue to and vest in her, be also settled as thereinafter mentioned and further reciting, that, in order to such settlement of her present fortune, she had transferred the 50667. 13s. 4d. 3 per cent. annuities, and the securities for the payment of the 45007. had been assigned to the trustees; it was witnessed, that, in consideration of the intended marriage, and for making some provision for Mrs. Vowell and Thomas Humpage, and the issue between them to be begotten, it was declared and agreed, that the trustees should stand possessed of the 50667. 13s. 4d. 3 per cent. consols, and the 4500l., after the marriage, on trust, to pay the interest and dividends to Mrs. Vowell, and her assigns, during the joint. lives of herself and her husband, for her separate use; and after the decease of either, to the survivor for life; and after the decease of the survivor of them. in trust, for all the children of the marriage, as thereinafter mentioned; but in case there should be no child of the marriage, and Mrs. Vowell should survive Thomas Humpage, upon trust, for her absolutely; but in case she should die in the lifetime of her intended husband, then, after his death, on trust, to assign and transfer the trust funds, to such persons as Mrs. Vowell should appoint; and in default of appointment, upon trust, to pay, assign and |