1839.-Field v. Hutchinson. [*599] 1839; July 25. *FIELD V. HUTCHINSON. Where the want of signature to an agreement for the sale of lands clearly appears on the bill, the objection may be taken advantage of by general demurrer; but the statements of this bill not being inconsistent with a signature by the party to be charged, and containing allegations of part performance, a general demurrer thereto was overruled. THIS was a bill for the specific performance of agreements for granting a lease of certain premises; the bill stated that the agreements, in which the defendant's name occurred,(a) were written in the handwriting of the defendant and that the agreement had been part performed. The defendant filed a general demurrer to the whole bill. Mr. Bird, (in the absence of Mr. Pemberton,) in support of the demurrer, amongst other objections, contended that it did not appear, on the face of the bill, that the contract was signed as required by the statute of frauds. Mr. Kindersley and Mr. Thomas Turner, contra, on this point, contended that the objection, for want of signature, could not be taken by general demurrer, for a contract, though not signed, might under a variety of circumstances be valid in equity; and that this species of defence must be raised either by plea or answer. Mr. Bird, in reply. THE MASTER OF THE ROLLS (after disposing of the other points):-It is said that it does not appear, from the record, that the agreement was signed in the manner required by the statute of frauds. It is not dis[*600] tinctly alleged on the record, but the statements are quite *consistent with there being a sufficient signature by the party to be charged. There can be no doubt but that a bill may contain such statements as to entitle a defeudant, by general demurrer, to take advantage of the want of signature, because it might appear clear that the plaintiff was not entitled to the relief he asked. All that is necessary to say in this case is, that although some part of the relief sought by this bill cannot be granted, and that some part is doubtful, yet it appears, from the statements, that there is some relief which, if the allegations should be then proved, will be granted at the hearing. Demurrer overruled. (a) See Knight v. Crockford, 1 Esp. 189; Saunderson v. Jackson, 2 Bos. & P. 238. 1839.-Poole v. Pass. Between C. PoOOLE, Plaintiff, and W. PAss, Defendant. 1839; June 17. A mortgagee, in whom a satisfied mortgage term was vested, held, under the circumstances, bound to assign it to the trustee of the will of the mortgagor, without the concurrence of the parties beneficially interested in the property under the will. A testator allowed a satisfied mortgage term to remain outstanding in the mortgagee, and he devised the estate to a trustee in such a manner as, in the opinion of the court, to entitle him to call for an assignment of the term without the concurrence of the parties beneficially entitled; the termor, under the advice of counsel, refused to assign without such concurrence, and a suit became necessary to compel him: The court, though of opinion that the termor was not entitled to insist on his objection, gave him his costs, charges and expenses. THE testator in 1822, mortgaged his moiety of an estate at Timperley to the defendant, William Pass, by demise for 1000 years. The mortgage money was repaid, but no reconveyance was executed, the testator having, as was stated by the answer, declined to take the same. *The testator by his will, after "directing all his just debts, funeral [*601] and testamentary expenses to be paid and discharged by and out of his estate and effects," gave the moiety of the freehold property at Timperley and his leasehold for lives at Bowden and elsewhere to the plaintiff, his heirs and assigns, upon trust to pay the rents thereof to his wife during the minority of his son John; and after his attaining twenty-one years, he gave his wife an annuity of 401. a year, and he charged all his real and leasehold hereditaments. with the payment thereof, and he gave her a power of distress for the same; and subject thereto, he devised his freeholds and leaseholds in manner hereinafter particularly mentioned. And he directed his trustee, when and as soon as his son John should attain the age of twenty-one years, to cause a valuation to be made of his estates, which were to be allotted in three separate shares, and were to be divided amongst his children, John, Peter and Mary Ann; and it was his will and mind that his son John should take the first refuse of his leasehold at Bowden and his freehold at Timperley; and that his son Peter should take such of the two estates as should remain ; " and according to such choice made by his said two sons, he gave and devised the same estates to each of them severally, their respective heirs and assigns," for ever and he appointed the plaintiff and his son John executors. The testator died in 1832, and (as was stated) his son John attained twentyone about September, or October, 1834, but had not made his election between the two estates. After the death of the testator, the plaintiff was desirous of having the term of 1000 years surrendered and assigned to him, and the defendant claiming no *interest in it, was willing to execute such assignment [*602] as proposed by the plaintiff; but reference being made in the draft assignment to the testator's will, it was referred to by the defendant, who then had some doubt as to its effect, and in December, 1834, objected to exe 1839. Poole v. Pass. cute the assignment without the concurrence of the cestuis que trust, alleging, that "the devise upon trust of the testator's estate to his trustees was only co-equal to the minority of his son John, and that upon his attainment to the age of twenty-one years (which event he understood had happened.) the Timperley estate was devised over to one of the two sons in fee; that this would have the effect of vesting the estate in the son, and that the term of years affecting it, must remain subject to his direction ;" and further that the deed prepared would not have the effect of merging the term. To this it was replied, that the son John not having made his choice under the will, the trustee was competent to receive a surrender. A controversy then took place between the parties, and they both consulted conveyancers of eminence on the point, who differed in opinion; the gentleman consulted by the plaintiff being of opinion that the assignment might safely be made without the concurrence of the cestuis que trust, while on the other hand, the defendant's conveyancer, though concurring that the plaintiff took the legal estate in fee simple, was of opinion, that the defendant would not be justified in assigning or surrendering the term by the direction of the trustee under the will, without the concurrence of the parties beneficially interested; he added, " that in the case of a devise unto and to the use of the trustee and his heirs, in trust for A. and his heirs, he apprehended it [*603] would be clear, that the trustee of a prior satisfied term would not be justified in dealing with the tern without the concurrence of A." The defendant then proposed to have the draft settled by a third counsel, but this offer was not accepted, and in April, 1836, this bill was filed to compel the defendant to assign the term and to pay the costs. Mr. Pemberton and Mr. Kenyon Parker, for the plaintiff. The question is, whether, where an estate is devised to trustees who have the absolute estate, a mortgagee who has been paid, and is therefore a trustee, can refuse to surrender the term without a suit in chancery. The conveyancer consulted by the defendant could not have been aware that infants were interested in the estate, and that it would be impossible for them to join; that there must be a decree is clear, and the defendant ought to be ordered to pay the costs which have been wantonly occasioned. Angier v. Stannard(a) shows, that at any rate, he is not entitled to his costs. Mr. Tinney and Mr. G. L. Russell, for the defendant. The defendant does not object to assign the term as the court may order; but being a trustee, he is entitled to his costs. It was by the desire of the testator himself that the term was not assigned; it is no longer a mortgage. term, but an attendant term, and the defendant would not be justified in merging the term, or in dealing, with it, without the concurrence of the parties beneficially interested under the will of the testator; it [*604] *would prejudice them, and be a breach of trust, for which the defendant might incur liability; the cause ought, therefore, to stand over (a) 3 Myl. & K. 566. 1839.-Vance v. Vance. to make the cestuis que trust parties to it. circumstances from Angier v. Stannard. Phelp(a) and Osbourn v. Fallows.(b) This case is distinguishable in its Mr. Pemberton, in reply, contended that the fact of the real estate being charged with debts was of itself sufficient to justify the trustee and executor in calling upon the defendant to convey the legal estate. THE MASTER OF THE ROLLS (after stating the mortgage, the will and the subsequent circumstances) said, I must say, under these circumstances, the defendant is entitled to be paid his costs of this suit; and it appears to me on the whole, that the plaintiff has a right to have this term surrendered; he has trusts to perform under this will, which require that he should have dominion over the legal fee of this estate. I do not at all agree in the argument which has been offered on behalf of the defendant, that he is to look to the trusts the proper question for him to ask himself is, whether he will be exposed to any risk in doing what is required, and it is only necessary for him to see that he does not endanger his own safety. It appears to me that there are things to be done which entitle the plaintiff to have this term surrendered to himself; that being so, a decree must be made for the plaintiff, and he must pay the defendant the costs of this suit.[1] Mr. Tinney. As trustee he will have trustee's costs, as between solicitor and client, and the costs of the opinion taken. *THE MASTER OF THE ROLLS:-Yes; I think no trustee would [*605] be safe unless such costs were allowed.(c) 1839: July 30. VANCE v. VANCE. A. B. gave directions to his bankers to invest a sum of money in the joint names of himself and wife, and their brokers accordingly made the purchase: A. B. died after the contract, but before the transfer had been completed: Held that the wife was entitled to the stock by survivorship. On the 22d of March, 1837, the intestate, George Vance, being confined to his bed by an accident which afterwards occasioned his death, signed an order on his bankers, Messrs. Coutts & Co., in the following form: (a) 6 Mad. 229. (b) 1 Russ. & Myl. 741. (c) The defendant was decreed to execute to the plaintiff, or as he should direct, a surrender or assignment of the term, and the Master was ordered to tax the defendant his costs of this suit, as between solicitor and client, and to tax him his charges and expenses, properly incurred, to be paid by the plaintiff.-Reg. Lib. B. 1838, fol. 965. [1] Where parties call on trustees to part with their estate on the ground that 'heir trusts have terminated, they are bound clearly and satisfactorily to show the fact to the trustees. Holford v. Phipps, 3 Beav. 434. Trustees of a term, the trusts of which had been put an end to by the cestui que trust, were held entitled to their costs of a suit to compel an assignment of the term to the purchaser of the property, on the ground that full and accurate information had not been tendered them before the bill was filed. Ibid. 1839.-Vance v. Vance. Gentlemen, -Be so good as to buy a thousand consols for me and my wife, 'old account.' I am your obedient servant." Having signed this order, he desired that it should be sent, on the ensuing day, to Messrs. Coutts & Co. Mrs. Vance kept the order in her possession, and from the distress of mind under which she at the time labored, did not send the order the following day, nor on the next succeeding day (being Good Friday ;) but the order [*606] was forwarded, on Saturday the 25th of March, to Messrs. Coutts & Co., who acted on it, and sent to the intestate the following letter:"Strand, London, 25th March, 1838. "Sir,-According to your direction, our broker has purchased 10007. consolidated 3 per cents. at 90 for Brokerage £904 10 0 - 1 50 £905 15 0 To be transferred into the joint names of yourself and Mrs. Vance on Tuesday next, when the cost will be charged to your account." The intestate died in the evening of Monday, the 27th of March, 1837. On Tuesday, the 28th of March, 1837, the sum of 1000l. consols was transferred into the joint names of the intestate and his wife; and on the same day the sum of 9057. 15s. was charged by Messrs. Coutts & Co. to the account of the intestate. The question was, whether this sum belonged to the estate of the intestate, or to the widow on the trusts of the "old account." Mr. Skirrow and Mr. E. J. Lloyd, for the plaintiff, submitted the point to the court. Mr. H. W. Clarke, for the widow of the intestate. THE MASTER OF THE ROLLS said he thought there was enough [*607] to entitle the widow,-that there was an order *given by the intestate to his bankers, which had been acted on by them by making a contract, after which the intestate could not alter it.[1] [1] Vide Dummer v. Pitcher, 2 Myl. & K. 262. Shuttleworth v. Greaves, 4 Myl. & Cr. 35. Searing v. Searing, 9 Paige, 283. |