1843.-Hall v. Lack. were laid down by Lord Cottenham in the case of Attorney-General v. Cooper.(a) Mr. Rolt, contra, contended that, according to the bill, [*633] *as well as the answer, Phillott acted throughout as the agent of Hall, and not merely as trustee. THE VICE-CHANCELLOR.-If the defendant has any rights against Hall by reason of the agency or conduct of Phillott, those rights may be enforced in this suit, whatever may be done upon this motion. In that respect, the presence or absence of Phillott as a plaintiff on the record makes no difference. Phillott was agent, and became trustee. His agency appears in the bill as mere matter of narrative. As agent, he is a superfluous and unnecessary plaintiff. He happens also to be a trustee. In that character he is a co-plaintiff with Hall, whose suit alone this substantially is. Whether the supposition be well or ill founded, it appears that the rights of Hall may sustain damage by reason of the mere act of association with Phillott on the record. That ought not to be. If, independently of that observation, any prejudice should arise to the rights of the defendant, in consequence of this application being granted, that defence will be fully open to him. ORDER according to the notice of motion, unless the defendant waive the security for costs; the plaintiff Hall undertaking to amend, and Phillot undertaking to appear and answer within a given time. The present defendants to have six weeks' time to answer the amended bill. Reserve the consideration of all other costs incurred, or to be incurred, in consequence of this application or of the amendment. (a) 3 Myl. & Cr. 258. See Motteux v. Macreth, 1 Ves. jun., 142; Lloyd v. Makeam, 6 Ves. 145; Tappan v. Norman, 11 Ves. 563; Read v. Treacher, 2 Kcen, 317. 1843.-Attorney-General v. Higham. *ATTORNEY-GENERAL V. HIGHAM. [*634] 1843: December 12th. Testator bequeathed £500 to his executors, upon trust that they should lay out and invest the same in the public funds, or in such other security, or in such other manner as to them should seem expedient, at interest, and pay and apply the produce to a charitable purpose. One of the executors, who took the entire management of the estate, paid the debts, and most of the legacies of the testator, but neither specifically appropriated nor invested £500 for the charity. He paid interest, however, on £500 to the charity; at the same time receiving interest on the promissory note of a debtor to the estate who was in good credit, but whose debt was the only fund available for payment of the legacy. The executor afterwards died. On the admission, by his representatives, that he had, in his lifetime, assented to the payment of the legacy to himself, as trustee.-Held, that his estate was severally answerable, as for a breach of trust. Evidence of admission of assets by payment of interest on a legacy.[1] In the year 1801, Henry Duxbury, being seised in fee of a small estate, called Woodcock Hill, out of which he paid £19 a year to the master of a school at Ribchester, under the trusts of a certain will, conveyed the premises, subject to such annuity, to Richard Higham in fee. Richard Higham for some time paid the annuity, but afterwards, in 1805, ceased to do so, on the ground that such payment was void under the Mortmain Act. Richard Higham, by his will, dated the 8th November, 1817, after giving various pecuniary legacies, gave and bequeathed to his son Joseph Higham, his daughter Emma Mercer, and his grandson Joseph, son of his late son John, (whom he made executors and executrix of his will,) their executors, administrators, and assigns, the sum of £500 of lawful English money, out of such part of his personal estate as was not, or might not, be secured by mortgage or other charge upon realty, upon trust, that they, the same trustees or trustee for the time being, should lay out and invest the same principal sum of £500 in the public funds, or in such other security or in such other manner as to them should seem expedient, at interest. And upon further 1843.—Attorney-General v. Higham. trust, that they, the same trustees for the time being, should pay and apply the yearly sum of £5 (part of the dividends, interest, and produce to arise from said stocks, funds, or investment) unto Henry Duxbury, during his life; and should, either annually or otherwise, according to the discretion of them his same trustees for the time being, pay and apply the whole of the aforesaid dividends, or other produce of such stocks, funds, or [*635] other investment or investments, subject to the said yearly sum of £5, to charitable uses or purposes for the benefit or advantage of such poor persons residing in all or any of the three townships of Ribchester, Hothersall, and Dutton, in the county of Lancaster, as his said trustees or trustee for the time being should think proper; and the same charity to be administered in alms, education of children, or in such other manner, and for such other charitable purposes, within all or some of the said townships, as his said trustees or trustee for the time being should think expedient and proper; and he recommended his said trustees or trustee for the time being to consider and ascertain the probability of establishing a school for educating the poor children resident in the said three last-mentioned townships according to the Madras system, as it was his opinion, that the said three townships would derive more permanent advantage from the said legacy or sum of £500 if the same were applied to the furtherance of that object, than if it were applied in any other manner. Then followed a clause for the appointment of new trustees. And the testator bequeathed all his residuary personal estate, after payment of the said trust sum of £500 and the various legacies therein before mentioned, to the said Joseph Higham his son, Emma Mercer, and Joseph Higham his grandson, on certain trusts as to one half thereof, for the benefit of the said Joseph Higham his son, and as to the other half thereof, for the benefit of the children of James Higham, a deceased son, payable at their respective ages of twenty-five years. The testator died in January, 1818, and in the following August his will was proved by Joseph Higham his son and Emma Mercer, power being reserved to Joseph Higham the grandson, who was then an infant, to prove the will. Joseph Higham the son took upon himself the active execution of the 1843-Attorney-General v. Higham. will, and paid all the testator's debts, and, with the exception of the charity legacy, all the legacies, *including [*636] a legacy to himself of £2120, and a legacy to Emma Mercer of £1700. No fund was set apart by him for the payment of the charity legacy, but, on the contrary, a considerable part of the assets of the testator were left outstanding; in particular, a promissory note for £1100, due from one Richard Ward to the testator, in respect of which only interest and principal to the amount of £500 were received by the acting executor. Interest, however, on the charity legacy, at the rate of 41. 10s. per cent. per annum, was paid to the schoolmaster, John Gregson, by Joseph Higham the son, until his death, which took place in June, 1822. His executors then continued the payment until other arrangements were made for that purpose, as after mentioned. On the 5th January, 1824, a meeting was held for the purpose of considering the affairs of the testator, Richard Higham. The meeting was attended by the executors of Joseph Higham the son, Emma Mercer, and Joseph Higham the grandson, when the accounts kept of the testator's estate by Joseph Higham the son were produced by his executors to the other parties, and were examined and audited, and the note of Richard Ward, together with other securities of the testator, was delivered to Joseph Higham the grandson. And by a deed-poll, bearing date the same 5th January, and executed by Joseph Higham the grandson, and Emma Mercer, after reciting the will of Richard Higham, and that, after his decease, it had been proved by all his executors, and reciting the death of Richard Higham, and that Joseph Higham the son had in his lifetime, with the approbation of his co-executors, taken upon himself the chief management and execution of the trusts of the said will, and that he had then lately departed this life, having by will appointed Alice Higham, Christopher Hindle, and William Eccles, his executors; and reciting, that the said executors had produced to the said Emma Mercer and Joseph Higham the *grandson, all the accounts, papers, vouchers, evidences, [*637] and documents in their custody, touching the execution of the will of said Richard Higham by said Joseph Higham the 1843.-Attorney-General v. Higham. son, and that those accounts had been duly investigated and examined by the said Emma Mercer, and Joseph Higham the grandson, and had been finally approved of and possessed by them; and that the balance found due from the executors of the said Joseph Higham the son, upon the same accounts, had been duly paid, it was witnessed that they, the said Emma Mercer and Joseph Higham the grandson, (so far as they could, but not so as to charge themselves with the accounts of said Joseph Higham the son,) released, exonerated, and discharged the said. Alice Higham, Christopher Hindle, and William Eccles, their heirs, executors, and administrators, and every of them, and all the estate and effects of the said Joseph Higham the son, of and from all actions and suits, causes of action and suit, accounts, transactions, claims, and demands whatsoever, which against the said Alice Higham, Christopher Hindle, and William Eccles, they, the said Emma Mercer and Joseph Higham the grandson, then had, or could, or might at any time thereafter have, claim or demand on account of the said will of Richard Higham, or any thing therein contained, antecedent to the day of the date of that indenture. After the execution of this deed, the executors of Joseph Higham the son took no farther management of Richard Higham's estate, except that the following arrangement, relating to the payment of the schoolmaster, which had commenced in 1823, wa's continued till about the year 1826. The arrangement, which had been entered into with the consent and by the orders of Emma Mercer and Joseph Higham the grandson, was, that Alice Higham, the widow and executrix of Joseph Higham the son, should supply the schoolmaster with groceries and shop goods to the extent of the interest of the legacy or trust fund of £500. [*638] *This mode of payment being discontinued in January 1826, applications were made to Joseph Higham the grandson to pay the schoolmaster's salary. He at first refused so to do, but afterwards yielded to the application, and paid £20 per annum to the schoolmaster, John Gregson, from the year 1826, to the year 1836, when Gregson died. No farther payment having been made after the death of Greg |