1839.-Brainbrigge v. Blair.

vested in him as such provisional assignee as aforesaid, in trust for the benefit of the creditors of the said insolvent debtor ;" and submitted, "that he was entitled to be paid by the said complainant, or in such other manner as this court might be pleased to direct, all the costs, charges and expenses incurred by him in respect of this suit."

Mr. Reynolds, for Mr. Sturgis, asked that the plaintiff might be ordered to pay his costs of suit, on the authority of Peak v. Gibbon,(a) Woodward v. *Haddon, (b) and Weaving v. Count,(c) urging, that [*494] as a mere ministerial officer under the insolvent debtor's court, and having no interest, he ought to have these costs.

Mr. Pemberton and Mr. Hallett, for the plaintiff.

Mr. Kindersley and Mr. Goodeve, for other parties.

THE MASTER OF THE ROLLS-I think I mnst allow these costs, though I confess I do not perfectly understand the reasoning of the cases cited. It would be perfectly right in a case where it is clear that the assignee has nothing in his hands to pay his costs. Even if he should afterwards receive any assets, it would seem that they would be the proper fund out of which to pay his costs. I give the costs because the cases authorize it.[1]

The common decree for a foreclosure was made, and it was ordered that the plaintiff should pay Sturgis's costs, and add them to his security.

1839: May 28.

*BAINBRIGGE v. BLAIR.

[*495]

The bankruptcy of a trustee is a sufficient ground for his removal from that office, although he has obtained his certificate, and the trust property is in the hands of a receiver.

MR. PEMBERTON and Mr. James Russell, in this case, asked for the appointment of three new trustees, in the place of three trustees appointed by

(a) 2 Russ. & Myl. 354

(b) 4 Sim. 606.

(c) 6 Sim. 439.

[1] Lord Langdale's scruples as to allowing costs to the assignee in cases like the above, have been sustained by other judges in subsequent decisions, and it seems to be now settled, that he is not, under ordinary circumstances, entitled to them. In Thompson v. Kendall, (1840,) 9 Sim. 397, Shadwell, V. C., allowed the assignee of an insolvent mortgagor his costs, who had disclaimed, was willing to release to the mortgagee, and had distributed the assets of the insolvent among the creditors, but notwithstanding was compelled by the plaintiff to come to a hearing. These were equitable circumstances for allowing costs, without placing the allowance upon any general rule. And in a still later case, (in which Boswell y. Tucker was cited,) Appleby v. Duke, (1842,) 1 Hare, 303, Wigram, V. C., proceeding as well on general principles as the case of Hunter v: Pugh, before Lord Cottenham, (ibid. 307, note,) refused the provisional assignee costs from the plaintiff. The material part of the judgment of the Vice-Chancelor, is quoted by the Editor, 9 Sim. 400, n. 1. A similar decision was made in Cash v. Belcher, 1 Hare, 310. And see Collins ▼. Shirley, 1 Russ. & M. 338, and n. 1, 2, ibid.

1839.-Lindo v. Lindo.

the will of the testator: the ground for the removal of one of the trustees was that he had become bankrupt.

Mr. Wright, for the bankrupt trustee, objected to his being removed. He argued that there was not a sufficient reason for his removal, the bankrupt having obtained his certificate in 1836, the trust estate not having lost any thing by his bankruptcy, and there being no fear of any future loss, as the estate was in the hands of a receiver; secondly, he objected, that the testator having by his will given to the trustee certain benefits attached to his office, he ought not to be deprived of them.

Mr. Kindersley, Mr. Piggott, and Mr. S. Sharpe, for other parties.

Mr. Pemberton, in reply, said that the fact of the trustee not being a responsible person was a sufficient ground for his removal from the office.

THE MASTER OF THE ROLLS-I think this gentleman having become a bankrupt ought to be removed; but it must be done without prejudice to any interest he may claim under the will.(a)[1]

A release though unlimited in its terms, held, from the recitals and context, to operate only as to a particular sum mentioned in the recitals.

An intestate at his death was indebted to D. M. in 16871.; disputes, however, arose between the administrator and next of kin as to the legality of the debt, and an agreement was come to between them and the brother of the intestate, whereby, reciting that all the property had been got in and, excluding the disputed debt, amounted to 5331.; that doubts having arisen as to the validity of that debt, and that being desirous of maintaining the good fame and character of the deceased, the three parties had agreed to waive all questions as to the validity of the debt, and raise a fund to make good the deficiency; that the next of kin had agreed "to relinquish all claim to any residue or surplus;" that the intestate's brother should furnish 3841. towards payment of the debt, and the administrator should make good all the residue. It was witnessed that the next of kin released to the administrator all his right, &c., to the personal estate of the intestate, as his next of kin or otherwise, the brother covenanted to pay his part, and the administra tor covenanted to pay the residue out of his own money, and also to pay all other debts, &c., of the intestate. The debt was paid, and other funds afterwards fell into the intestate's estate: Held, that the administrator was not, under the release, entitled thereto.

DAVID LINDO in his lifetime carried on business in partnership with his brother Abraham Lindo, and Moses da Costa Lindo: he died intestate in

(a) This may be done by petition. See 6 G. 4, c. 16, s. 79.

[1] New trustees having been appointed in this case, the receiver was discharged, the trustees undertaking, without entering into recognizances, to receive and to pass their accounts half yearly before the Master, in the same way as the receiver. 3 Beav. 421. Bankruptcy of a trustee is "becoming unfit" to act in trusts within the words of a power to appoint new trustees. In the Matter of Roche, 1 Conn. & Law. 306. If a trustee has been guilty of a breach of trust, and is insolvent or irresponsible, the court will remove him. Van Epps v. Van Epps, 9 Paige, 238; and see 1 Rev. Stat. of N. Y., (2d ed ) 724, § 70.

1839.Lindo v. Lindo.

1819, leaving his father, Moses Lindo, his sole next of kin, whereupon Moses da Costa Lindo, on the renunciation of Moses Lindo, became his administrator.

David Lindo, at his death, was indebted to several persons, and, amongst others, to Daniel Mocatta, in the sum of 16877. 10s., as acceptor of three bills of exchange; this sum had been lent by Daniel Mocatta to David Lindo, to enable him to pay losses incurred by him in speculations in the funds, which were stated to have been of an illegal nature. Moses da Costa Lindo was to become surety for this sum, and for that purpose he endorsed these bills. David Lindo, by a memorandum, authorized and enjoined his representatives to pay Moses da Costa Lindo all that might be due in respect thereof.

*The assets of the intestate, David Lindo, were possessed by his ad- [*497] ministrator, Moses da Costa Lindo, who paid all the claims thereon, except the debt due to Daniel Mocatta, and there then remained in the hands of the administrator a balance of 4581. 7s. 3d. ; but supposing the debt due to Daniel Mocatta to be payable out of the assets of David Lindo, his estate would have been considerably deficient. Moses da Costa Lindo having furnished Moses Lindo with an account of the estate of the intestate, in which he included the debt due to Daniel Mocatta, and thus showing a deficiency, Moses Lindo objected thereto, and insisted on having that item struck out, alleging that the sum was not a legal debt which could be recovered against the estate of David Lindo, and that it ought not, therefore, to be charged against his estate. Considerable discussion took place on the matter, and ultimately the objected item was struck out, and another account omitting it rendered; the parties seemed to have come to an arrangement, by which it was agreed, that the balance of 4581. 7s. 8d. should be applied toward payment of the 16877. 10s., and that Moses da Costa Lindo and Abraham Lindo should pay the remainder. The debt due to Daniel Mocatta was accordingly charged in the books of Abraham Lindo and Moses da Costa Lindo to the brokerage account as a loss, and a sum of 458l. 7s. 8d. was carried to the credit of Moses Lindo in a cash account kept with Abraham Lindo, and Moses da Costa Lindo, and the same amount was charged, in the account of David Lindo's estate, as a payment to Moses Lindo.

These entries were made on the 6th of March, 1820, and on the same day an entry was made in one of the books of account of Abraham Lindo and Moses da Costa Lindo, by one of their clerks, stating the agreement already mentioned; this entry was signed by Moses Lindo to signify his approval of it, he thereby *"giving up all claims and pretensions [*498] whatsoever against the said Moses da Costa Lindo as administra

tor of his late son, 458l. 7s. 8d." This entry was alleged to have been made without the concurrence of Moses da Costa Lindo.

The agreement was carried into effect by an indenture, dated the 17th of March, 1820, and made between Moses Lindo of the first part, Abraham Lindo of the second part, and Moses da Costa Lindo of the third part; and

1839-Lindo v. Lindo.

after reciting the partnership, the death of David Lindo, and that letters of administration were obtained by Moses da Costa Lindo, upon the renunciation of his father, his sole next of kin, "and that the said Moses da Costa Lindo had, under and by virtue of the said letters of administration, collected, got in and received and converted into money all the outstanding property and effects of the said David Lindo;" and after reciting the debt due from David Lindo to Daniel Mocatta; upon bills which were not then due, it recited as follows: "And whereas the assets of the said David Lindo came to the hands of the said Moses da Costa Lindo as administrator as aforesaid, and which are all the assets of the said David Lindo, will be more than sufficient to answer and pay his debts and funeral and testamentary expenses, exclusive of the said three acceptances, by the sum of 5331. 7s. 8d., which sum of 5331. 7s. 8d. would, therefore, in case no claim in respect of such acceptances, go to and become the property of the said Moses Lindo, as his sole next of kin; and whereas doubts have arisen, whether the said bills of exchange are valid and legal charges against the estate of David Lindo, the consideration thereof being moneys borrowed for the purpose of paying differences upon stock transactions prohibited by the statute 7 Geo. II.;

but inasmuch as all the parties to this indenture are desirous of main[*499] taining and holding up the good fame *and character of David Lindo and discharging his debts in full, they have mutually and reciprocally agreed with each other to waive all questions respecting the validity of such bills of exchange and the consideration thereof, and to raise a fund for making good the deficiency of the assets of David Lindo, in manner following that is to say, that Moses Lindo should relinquish all claims to any residue or surplus of the estate and effects of David Lindo as his next of kin; and that Abraham Lindo should pay or allow in account to Moses da Costa Lindo, the sum of 3841. 2s. towards the payment and discharge of the said debts; that Moses da Costa Lindo should pay and make good all the residue of such debts, and of the funeral and testamentary expenses of David Lindo; and that a sum of 3841. 2s. should be applied as before mentioned, out of the moneys in the hands of Moses da Costa Lindo belonging to Abraham Lindo, as his share of the partnership profits. It was witnessed, that Moses Lindo, Abraham Lindo and Moses da Costa Lindo mutually covenanted with each other, that they would together raise a fund for payment and discharge of all the debts and funeral and testamentary expenses of David Lindo in manner and in the proportions before mentioned: and Moses Lindo in consideration of the natural love and affection which he had and bore to David Lindo during his life, and of the respect which he then bore to his memory, and in consideration of the covenant and agreement of Moses da Costa Lindo thereinafter contained, remised, released and quitted claim unto Moses da Costa Lindo, and to all and every future personal representative or representatives of David Lindo, all his right and interest, property, benefit, claim and demand, of, in or to the personal estate and effects of David

1839.-Lindo v. Lindo.

Lindo, as next of kin of David Lindo, or otherwise howsoever: and Abraham Lindo covenanted with Moses da Costa Lindo to contribute towards the liquidation of the debts, &c., of David Lindo, and of the said three several bills of *exchange, the sum of 3841. 2s.: and Moses da Costa [*500] Lindo, in consideration of the release therein before contained on the part of Moses Lindo, and of the covenant, &c., of Abraham Lindo, covenanted with Moses Lindo and Abraham Lindo, that he would, by means of the assets of David Lindo come to his hands as administrator as aforesaid, and of the sum of 3841. 2s. so agreed to be paid and contributed by Abraham Lindo, and as to the residue, by and out of his own moneys, pay the said three several bills of exchange when due, and all other the just and lawful debts of David Lindo, and his funeral and testamentary expenses; and it was thereby provided, that Moses da Costa Lindo should not be compelled to pay any claims in respect of any speculations in the funds, or any other species of gambling prohibited by statute.

The three bills of exchange were duly paid by Moses da Costa Lindo.

In January, 1837, upon the death of David Lindo's mother, a sum of 13331. 6s. 8d. 3 per cent. consols fell in to the estate of David Lindo, and which his administrator became entitled to receive.

This bill was filed for the administration of the estate of Moses Lindo who had died, and it raised the question whether, under the general terms of the release of 1820, Moses da Costa Lindo was entitled to retain this 13337. 6s. Sd. stock for his own benefit, or held it in trust for the next of kin of David Lindo; and all parties, waiving the objection of form, concurred in having the question now decided.

Mr. Pemberton and Mr. L. Lowndes, for the plaintiff, contended, that the sum of 13331. 6s. 8d. consols belonged to the next of kin of David Lindo and now formed part of the estate of Moses Lindo; that although the release itself was general and unlimited in its terms, yet its gener- [*501] ality must be restrained by the recitals and the context, so as to effectuate the manifest intention of the parties; Ramsden v. Hylton ;(a) and that its operation must be limited to that portion of David Lindo's estate which was recited to be all his assets. That the condition of the release was that Moses da Costa Lindo and Abraham Lindo should each contribute a certain sum towards the payment of these disputed bills, and that the consideration would altogether fail, if Moses da Costa Lindo were allowed to repay himself out of the assets of the intestate; this would be a fraud upon Moses Lindo and Abraham Lindo, who had contributed their portions on the faith of Moses da Casta Lindo, personally, making a similar sacrifice. They also cited Brown v. Meredith.(b)

Mr. Kindersley, Mr. W. C. L. Keene, and Mr. F. Goldsmid for defendants in the same interest, contended, that it clearly appeared to have been

(a) 2 Ves. sen. 309.

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(b) 2 Keen, 527.