1839.-Pickering v. Pickering.

man, to enjoy the testator's perishable property in specie or whether at the testator's death it ought to have been converted into 3 per cents for the benefit of the defendant, who was entitled to the testator's property in remainder; and secondly, whether an account signed and approved of by the tenant for life was, under the circumstances which will be presently stated, binding on the plaintiff, who was her legal personal representative.

[*32] *It appeared that George Andree by his will, dated in December, 1800, expressed himself as follows: "I give to my dear wife Mary 1007. for mourning and immediate expenses; besides which, in lieu and satisfaction of and for the provision made for her previous to and in contemplation of our marriage, and subject to and after payment of my debts, and the sums of money and legacies hereinafter given, and such annuities and insurances as I am liable to pay, I give and bequeath to my said wife all the interest, rents, dividends, annual produce and profits, use and enjoyment of all my estate and effects whatsoever, real and personal, for and during the term of her natural life. I give to my said wife all my wearing apparel whatsoever, to be disposed of at her discretion."

The testator then gave certain legacies, and gave to the defendant, Edward R. Pickering, " 100 guineas and all his books (with the exceptions after mentioned,) and all his papers, except title deeds and securities; and he gave to him, absolutely, all his furniture, fixtures and things in and about his chambers in Staple's Inn," which chambers he gave to him, his heirs and assigns. The testator then proceeded as follows: "I give to my said wife, for her absolute use and benefit, all the rest of my household furniture, wine, coals and other stores, linen and china, and fifty volumes of my books, to be selected by herself, folios excepted, but only the use for her life of my plate." The testator then appointed the defendant and two other persons his executors, and continued in the following words: "I direct that all the said legacies be paid and delivered as soon as it may be without any delay; and at the decease of my said wife, I give, devise and bequeath unto my said son-in-law,

Edward R. Pickering, all the rest and residue of my estate and effects [*33] whatsoever, both real and personal, to hold to him, his heirs, *execu

tors, administrators and assigns for ever, subject as aforesaid, and to the payment of such sum and sums of money as I have undertaken or shall undertake to pay after my said wife's decease; but if the said Edward Rowland Pickering shall die in her lifetime, not having married, then I give one half part of such rest and residue of my estate and effects, subject to the payment of one half of such sum and sums first and last above alluded to, unto my nephew, John Andree, and my niece, Mary A. Andree, equally to be divided between them, to hold to them or the survivor, if one only shall survive my wife, their, his and her heirs, executors, administrators and assigns, for ever."[1]

[1] In the report of this case, upon appeal, Andree's will is stated in full. A mode of reporting, which is, in a case of so much interest as the present, the most satisfactory course.

1839-Pickering v. Pickering.

In January, 1801, the testator made the following codicil to his will: "being liable to pay to John Cook, of Leigh, in the county of Essex, clerk, the sum of 60l. a year, during the term of his natural life, now I hereby expressly charge and make payable, the same upon, by and out of all lands, tenements and hereditaments, both freehold and copyhold, which I am or shall be, or which I, my heirs or assigns shall be entitled to, situate at or near Stevenage in the county of Herts; and in case of the decease of John Clendon, assured by me in the Amicable Assurance Office, during the lifetime of the said John Cook, then I give unto my executors all such sums of money as shall arise and be payable by and from the said society, on the decease of the said John Clendon, to me, my executors, administrators or assigns, upon trust thereout from time to time to pay and discharge to the said John Cook, during his natural life, the said sum of 607. a year, for his own use and benefit."

The testator died in February. 1801, and the defendant Edward R. Pickering, a solicitor, who was the son of Mrs. Andree by a former marriage, alone proved the will.

*The testator, at his death, was possessed of a leasehold house in the [*34] Strand, held for an unexpired term of forty-five years and a half, and producing a clear improved rent of 1037. He was also entitled to an annuity of 1007. a year, payable by George Green during his life, and which was secured by the covenant of one William Ward; this annuity at the death of the testator was in arrear to the extent of 16221., and was supposed to be irrecoverable, in consequence of the insolvency of the grantor and of the supposed insolvency of the estate of Ward, the surety, who was dead. Greene it appeared died in 1825, and nothing was paid in respect of this annuity until the year 1830, as hereafter stated.

From the death of the testator in 1801, down to the year 1830, no question seemed to have arisen between the parties as to the construction of the will; but the widow, with the full concurrence of the defendant, continued to receive the whole of the rents of the leasehold property in the Strand.

In the year 1827, a suit was instituted, in the names of Mrs. Andree and the defendant, against the representatives of Ward the surety, for the recovery of the arrears of the annuity; in this suit a Mr. Johnson acted as the solicitor of the plaintiffs. In February, 1830, a decree was made in that suit, in favor of the plaintiffs, by which accounts of the arrears of the annuity and of Ward's estate were directed to be taken, and the latter was to be applied in payment of such arrears, and of the other debts of Ward.

Arrears to the amount of 40471. 5s. 8d. were found to be due; the cause was heard on further directions on the 14th of August, 1830; and the defendant received the arrears on the 28th of the same month.

*No questions appeared to have arisen between Mrs. Andree and the [35] defendant until the first decree was about to be made, at which time the correspondence between them commenced. On the 13th of February, 1830, Mrs. Andree wrote to the defendant, complaining of the delay in the

1839.-Pickering v. Pickering

settlement of the suit, and casually mentioning that a Mr. Grojan had called on her. The defendant replied on the 27th of that month, stating that the cause had been heard, and that a decree had been made, which admitted the claim notwithstanding the length of time which had elapsed; and also mentioning the reference to the Master, but that it was impossible to state when the end would be, but that he left it to Mr. Johnson.

Nothing further appeared to have taken place until the month of March, 1830, when the defendant submitted a case for the opinion of the late Mr. Bell, as to the construction of the will of the testator. It did not appear under what circumstances the case was submitted, or whether with the knowledge or concurrence of Mrs. Andree. The case and opinion, in which the names of the parties were altered, was as follows::

"CASE.

"George Andrews by his will bequeathed to his wife all the rents, interest, dividends and annual produce of his estates for her life; and subject thereto, he bequeathed all the rest and residue of his estates, real and personal, to Edward Parsons, his heirs, executors, administrators and assigns for ever; and appointed three executors, who are all dead but one. 1801, George Andrews died. Part of his property consisted of a lease, for fifty years from 1796, at a clear rent of 1031. per annum. The widow is still living, and has

received the whole rent. The residuary legatee has now complained, [*36] *that the executors ought not to have suffered the widow to receive

the full rent, but they ought to have sold the lease at the testator's death, realized its then value, and only to have let the widow have what interest could have been obtained from the produce; but not doing so, he contends that he has been greatly injured; he insists, that if this lease had been sold at the testator's death, it would have produced 18547., and that if it were now sold, it would only be worth 11337., and therefore this property is worse by 7217. than it would have been had the executors sold this leasehold property and realized the assets, as they ought to have done, at the testator's decease in 1801; and insists that the deterioration should be made good by the widow, either by now making up the value as it would have been at the testator's death, or that the future rents, &c., be stopped to make it good, but of which there would be little chance as the widow is in very advanced years; but she is in good circumstances and could easily make good the claim, or out of the sum to which she may be entitled from the annuity mentioned on the other side."

"Be pleased to give your opinion on this leasehold question and the rights of the parties.

"Second point. Upon George Andrew's death in 1801, it was found that he had purchased an annuity of 1007. of the assignee of the grantee, upon the grantor's life, and that William Watts was a covenantor for securing it.

"1801. It then appeared that Watts was dead insolvent, and upon application to the grantor it was found that he was living upon the charity of his

1839.-Pickering v. Pickering.

friends and could pay nothing, that only a small payment had been made to the first grantee, and that Andrews had not received any part.

*1825. The grantor died lately, and it has been found that Watts [*37] has become entitled to some property; his representative has been called upon under his covenant, and it is expected that the whole or a considerable part of the arrears may be obtained.

"The whole arrears due 40471. 5s. 8d.

"The widow claims to be entitled to the annuity from the death of her husband in 1801, viz., twenty-four years or 24007., and to have the residue laid out at interest for her life.

"On the other hand the residuary legatee insists, that she is not entitled to any part of the arrears, that it never has been an aunual productive property, and that not until it is received by the executor will it be, that personal of which she can derive any interest, and that therefore all that she is entitled to, will be, to have the gross sum which may be obtained laid out at interest, to be paid to her for life in future. The executor has suggested that it should be considered thus, supposing the whole 40477. could be obtained, or proportionably according to the sum which may be so:-The arrears due at Andrews' death in 1801

£1647

That the then value of an annuity of 1007. upon the grantor's life would have been worth, suppose

1100

That this sum should be considered as the realized assets or estate in 1801 .

2747

That the widow should have the difference, and from which should be deducted the excess received by her from the leasehold.

1300

£4047

*But both parties disagree to this arrangement, the widow think- [*38] ing that she ought to have the 1001. per annum since the year 1801, viz. 24007., as accrued arrears to her, and the residuary legatee insisting, that she ought to have nothing of the arrears, but only the future interest of the gross sum of whatever may be obtained, and that subject to the residuary legatee's claim in respect of the lease should be adjusted out of the widow's claim to the annuity.

"Be pleased to give your opinion upon this point, and what you recommend to be done between the parties."

On the 20th of March, 1830, Mr. Bell gave his opinion, which was in the following terms: "I think the leasehold should be considered as sold at the testator's death, and the widow will be entitled to what it would have produced if then laid out in 3 per cent. consols, and she must refund the rest of what she has received for the rent, Earl Howe v. Earl Dartmouth,(a) for this is a residuary bequest to the widow for life. The arrears at the death

1839.-Pickering v. Pickering

of the testator must be carried to the account of the residue, and the widow can have no benefit from it till it begins to produce interest. As to the residue of the arrears, that is, what the annuity has produced from the death of the testator, and according to Lord Howe v. Dartmouth, it should be computed what 3 per cent. consols the value of the annuity would have produced if laid out at the death of the testator, and what the widow would have received from dividends of such stock, should be paid to her out of what has

accrued since his death, and the residue of that sum should be taken [*39] as part of the principal belonging to "the residue. If the whole arrears are not recovered, I incline to think the sums recovered must be apportioned rateably, according to what would go to each account if the whole had been recovered."

On the 3d of August, 1830, the defendant wrote to Mrs. Andree in the following terms:

"With this I beg leave to send you the account, which has been drawn out agreeably to the opinion of Mr. Bell, respecting the house in the Strand and the arrears of Greene's annuity now recovered from Mr. Ward's estate. A copy of Mr. Bell's opinion accompanies the account, that you may put them both into Mr. Grojan's hands or into those of any other professional man in whom you have any confidence, that they may be carefully considered on your behalf. I must request that he will be pleased to see Mr. Johnson upon the subject, and as soon as I learn that the account has been adjusted and approved by you, the balance shall be paid."

The account which accompanied this letter was as follows:

[*40] *Dr.

per contra. Cr. The Estate of George Andree deceased, in account with Mrs. Andree,

AS TO THE HOUSE IN THE STRAND.

Mr. Bell being of opinion that the house ought to be considered as if sold at Mr. Andree's death-that the amount of the then value should be considered as then invested in the 3 per cent. stock-that Mrs. Andree should be credited with what would have been the amount of the dividends of such 3 per cents, and that she must refund what she has over received by having received the rents.