Where in a proceeding before the Master the
defendant, by acquiescence or omission to ob-
ject, permits the other party and the Master
to proceed as if he did acquiesce, he comes
too late if he does not come at the first oppor-
tunity to complain of the irregularity.
On a reference to the Master of exceptions
for impertinence, he enlarged the time for ma-
king his report three times, and on the 19th
of February reported the answer insufficient;
on the 4th of March the defendant gave no-
tice of motion to take the certificates off the
file, on the ground of irregularity and of the
Master's having power to enlarge the time
only once the court held that, even assum-
ing the Master's power to have been so limi-
ted, the defendant came too late, he not
having previously taken the objection. Davis
. Franklin,
369
In an administration suit, the court anthorized
the legal personal representative to carry on
newspapers which formed part of the assets,
and a stationer for that purpose furnished pa-
per on credit; Held, that he was entitled to
be paid out of the fund in court forming part
of the testator's estate, though such estate
was insufficient to pay the testator's debts.
Tinkler v. Hindmarsh,
348
Executors paid some interest on a legacy, and
about nine years after the testator's death,
passed their accounts at the legacy duty office,
showing a considerable residue; Held, that
the legatee was entitled to an immediate de-
cree for payment of the legacy, without first
taking the accounts of the testator's estate.
Whittle v. Henning,
396
1. When parties whose rights are questionable
have equal knowledge of facts and equal means
of ascertaining what their rights really are,
and they fairly endeavor to settle their respec-
tive claims among themselves, every court
feels disposed to support the conclusions or
agreements to which they may fairly come at
the time, and that, notwithstanding the subse-
quent discovery of common error. Pickering
v. Pickering,
In an information by the Attorney General at
the instance of a relator the Attorney General
ought not to appear otherwise than in support
of the information.
31
2. A husband went abroad, leaving his wife and
child unprovided for, whereupon the father of
the husband and the father of the wife entered
into an agreement to allow the wife 301. each,
"so long as she should continue separate and
apart from" her husband: Held, that the al-As to the position of the Attorney General in in-
lowance terminated by the death of the hus-
band. Miller v. Woodward,
See PARTITION. SPECIFIC PERFORMANCE.
AMENDMENT.
See GENERAL ORDERS, 1.
formations at the instance of a relator, and the
practice in such cases. Attorney General v.
The Ironmongers Company,
313
AUCTION.
See TURNPIKE ACT.
Injunction granted to restrain a party from taking
proceedings under the 1 & 2 Vict. c. 110, s. 8,
by means whereof an act of bankruptcy might
be deemed to have been committed by, or a
fiat of bankruptcy issue against the plaintiff.
Partners being indebted to their bankers, it
was agreed between them that one should re-
tire, that the assets should be transferred to the
continuing partners who were to take upon
themselves the partnership liabilities, and that
the bankers should release the retiring partner
from his liability. The bankers signed a me-
morandum acceding to the agreement, and
having afterwards attempted, by means of the
debt, to make the retiring partner a bankrupt,
they were restrained from so doing by an in-
junction. Attwood v. Banks,
192
See OFFICIAL ASSIGNEE.
2. Bequest of a pecuniary legacy to A. for life,
with remainder to B. for life, with remainder
to the children of A. living at the decease of
the survivor of A. and B., to be paid at twen-
ty-one with benefit of survivorship in case of
the death of any such children under twenty-
one, with a gift over to X. if all such children
died under twenty-one. A. had two children
only, who attained twenty-one and died in A.'s
lifetime, leaving children: Held, that the gift
over to X. took effect. Wilson v. Mount, 397
3. A testator gave some pecuniary legacies to in-
fants, to be paid to them on their attaining
twenty-one; and by a codicil he directed, that
as far as it might be practicable, all his lega-
cies should be paid within six months after his
decease : Held, that the direction in the codi-
cil did not accelerate the time of payment to
the infant legatees. Frost v. Capel,
184
4. Bequest in trust for all the children of the tes-
tator's late uncle J. B. deceased, to be divided
equally amongst them and the issue of such of
them as should be deceased, share and share
alike, such issue to be entitled to the share of
his deceased parents equally amongst them:
Held, that the grandchild of J. B., whose pa-
rent was dead at the date of the will, was en-
titled to take. Bebb v. Beckwith,
308
5. A testator by his will gave the residue of his
estate to his wife. By a codicil," instead of
giving the whole of his property, after the lega
cies were paid, to his wife," he bequeathed
10,000l., the interest of which to be paid her
for life," and then to go to his daughter, and
his house and furniture, plate, wines, &c., at
K. R., in short, the whole of his property at his |
decease, except carriage and horses and his
gold repeater; and it was his further wish that
she might continue in either house, but not to
change, and having the use of the same during
her life, wines, spirits, &c., included : Held,
that the gift by the codicil beyond the 10,0000.
was void for uncertainty. Baker v. Newton.
Newton v. Richards,
6. A testator bequeathed a moiety of personal
estate to his daughter for life, with remainder
to her children, with remainder to the children
of such children as should die in the life of the
daughter; he gave the other moiety to his son
for life, with remainder to his children ; but if
his son died without issue him surviving, he
gave the last mentioned moiety to the children
of the daughter, "in such shares and propor-
tions and in such manner as was therein before
directed and appointed for the payment and
division of their shares in the other moiety;"
the son died without issue: Held, that the
daughter took a life interest in the second
moiety by implication. Davies v. Hopkins.
7. A gift in terms importing a present vested in-
terest with a postponed time of payment is not
made contingent by a direction to accumulate
till the time of payment arrives. Blease v.
Burgh,
226
8. A testatrix bequeathed several legacies, and,
amongst others, one to a servant, "if he should
be residing with her at the time of her decease,
but not otherwise ;" and she directed the said
legacies to be paid "within six months after
her decease," and declared that the legacies
should not be vested until payable. The lega-
tee died before the expiration of six months:
Held, that the representatives of the legatee
were entitled to the legacy. Lucas v. Carline,
367
Bequest of 600l. to be applied towards payment
of the debt to which Z. Chapel was or might
be subject at the testator's decease. The cha-
pel was vested in trustees for a particular
class of dissenters. The general body of that
class had incurred a debt for building chapels,
and 6001. were laid on Z. Chapel, which it was
expected would be raised by voluntary sub-
seription of the members, but there was no le-
gal liability: Held, that the legacy failed.
Davies v. Hopkins,
276
10. A testator gave his residuary estate to his
wife for life, and to be divided amongst and
paid to his children on the whole of them at-
taining twenty-one, and not before; but the
payment to be postponed till the death of their
mother; and he directed maintenance to be al-
lowed them in event of the wife's death while
the children were under twenty-one; there
was a gift over to the children of any child
who should die before receiving his share, and
the testator provided that in case any of his
children should die without leaving issue, his
share should go over to the survivors. A child
attained twenty-one after the widow's decease,
but died without issue before receiving her
share : Held, that her representatives, and not
the surviving children, were entitled to her
share. Whiting v. Force,
See CHARITY, 6, 7. CUMULATIVE LEGACY, pas-
sim. DEVISE. ESTATE FOR LIFE. MORT-
MAIN. PERISHABLE PROPERTY, 1, 2, 3. RE-
MOTENESS, passim. SPECIFIC LEGACY, passim.
SUPERSTITIOUS USES. TRUST, 1.
BILL OF EXCHANGE.
See INTERNATIONAL LAW.
1. Two executors were directed, after making
some annual payments, to invest and accumu-
late the surplus. One of the executors re-
ceived the dividends of stock for several years,
and misapplied them; it did not appear that
the other executor had any knowledge there-
of: Held, that the latter was not answerable
for the breach of trust.
Two executors sold out stock, and the pro-
duce was received by one: Held, that the
other was responsible for its misapplication, but
was entitled to an inquiry, whether any part
had been applied in discharge of claims against
the testator. Williams v. Nixon,
472
An obligor of a bond, after notice that it had
been assigned on trusts, of the particulars of
which there was no proof of his being cogni-
zant, made payments to parties not entitled
thereto, some by order of the trustee, and some
to the executrix of the obligee, without such
order: Held, that the obligor was not respon-
sible to the cestui qui trust for the former, but
was liable to repay the latter. Roberts v.
Lloyd,
376
See CHARITY, 2, 3. Costs, 4. MUNICIPAL COR-
PORATIONS. PLEADING, 2. TRUSTEE, 2.
CANAL SHARES."
See SPECIFIC LEGACY.
A canon of Windsor granted the canonry and
the profits, &c., to the plaintiffs to secure a
sum of money. So far as it appeared on an
interlocutory application, the estates were vest-
ed in the corporation, and the canon was en-
titled to an aliquot share of the profits. There
was no cure of souls, and the only duties were
residence within the castle, and attendance in
the chapel twenty-one days a year: Held, up-
on this state of circumstances, that the securi-
ty was valid, and a receiver of the profits was
appointed.
Principles of public policy, on which pay,
pensions, &c., are held unalienable. Grenfell
v. The Dean and Canons of Windsor, 544
CHARGE ON SEPARATE ESTATE.
See HUSBAND AND WIFE, 1. SEPARATE USE.
1. In every case where the general purpose of a
gift or conveyance is declared to be a charity,
and the particular payments do not exhaust the
whole fund, any surplus will belong to the chari-
ty, unless there are other circumstances from
which a contrary intention of the testator can
be collected. Attorney General v. The Dra-
pers Company,
508
2. Absolute alienation and a reversionary lease
of charity property set aside as improvident.
Attorney General v. Kerr,
420
3. A fund was raised by voluntary subscription
by the inhabitants of Lewes and its neighbor-
hood, and applied in the purchase of premises
for making a pest house, and the trusts were
declared accordingly. In 1808 the trustees,
under a resolution of the inhabitants at a gene-
ral meeting, sold the premises, and lent the
produce to the commissioners of lighting and
paving on the security of the rates. Neither
the principal nor interest having ever been
repaid: Held, upon an information by the At-
torney General, that this was a charitable
foundation; that a breach of trust had been
committed; and that the money ought now to
be repaid by the commissioners out of the rates,
though by the act empowering the commis-
sioners to raise money on the rates one-twenti-
eth of the principal was to be paid off annually.
The Attorney General v. Kell,
575
4. A testator in whom real estates were vested,
subject to certain rent charges, devised them
to the Fishmongers' Company, "in aid of the
maintenance of the poor men and women of
the mystery and community aforesaid forever;"
being precisely the same terms as those under
which, by their charter, the company were
licensed to hold land in mortmain: Held, un-
der the circumstances, that the testator was a
mere trustee for the company; and an infor-
mation being filed against the company, to
carry into execution the charitable trusts men-
tioned in the testator's will, was dismissed with
costs. Attorney General v. The Fishmongers
Company,
A chartered company became entitled by a
devise to them, in the terms of their charter,
contained in the will of one of their body, to
property, subject to rent charges which were
devoted to superstitious uses principally under
the will of Sir J. C. In 1437, Sir J. C.'s ex-
ecutors of their good grace, zeal and love which
they had unto the soul of Sir J. C., and to the
intent that his will might be better observed,
paid to the company 400 marks in recompense
of the great charge and cost the company had
borne in reparations of the land out of which the
rent charge was issuing, so that the will of Sir
J. C. might be observed and kept in time com-
ing. In 1547, the statute against superstitious
uses passed, and three years after the company
purchased the rent charges of the crown,
which were conveyed by letters patent; sub-
sequently, in the 4th Jac. 1, an act of Parlia-
ment passed, whereby, to remove doubts and
questions, it was enacted that all messuages,
rents, &c., as had been theretofore devised to
the company and which were mentioned in
the letters patent might be thereafter held by
the company against the king, saving the rights
of persons other than the king. The company
have ever since been in possession of the pro-
perty, and had dealt with it as their general
property, but had applied part of the rents in
charity. In an information filed in 1832, in-
sisting that the property was devoted to chari-
ty under the devise: Held, that at this distance
of time any thing which seemed ambiguous
ought to be presumed in favor of the company;
that the testator was a mere trustee for the
company; that it ought to be presumed that
charges to which the crown became entitled,
and which were granted to the company, were
equal to, if they did not exceed, the whole va-
lue of the land; and that under the grant and
statute the estates themselves became the pro-
perty of the company. The Attorney Gene-
ral v. The Fishmongers' Company,
5. This court has authority to exercise a discre-
tion in charity cases; and where it appears
that the prosecution of accounts and inquiries
would not be beneficial but prejudicial to the
interests of the charity, the court will refuse
them. The court also discourages long and
expensive litigation in charity cases for matters
of small value The Attorney General v.
Shearman,
104
A testator bequeathed 1000. to "the Jews'
poor, Mile End ;" there were two charitable
institutions for poor Jews at Mile End, and it
not appearing which of the charities were
meant, Held, that the fund ought to be ap-
plied cypres; and the court divided the bequest
between these two charitable institutions.
Bennet v. Hayter,
|