1843.-Reed v. O'Brien.

the place of and representing such of their parents (the children of the deceased sisters) as were dead.

The bill then stated, that in 1815, the defendant O'Brien, claiming to be a relation, went to Russia to General De Lacy, and that afterwards (but at what time the bill did not state,) the defendant O'Brien received from, or by the directions of the said General Maurice De Lacy, divers large sums of money, or the securities for the same, which were afterwards realized, and the proceeds received by the said Patrick O'Brien, in trust for, and for the benefit of the families or descendants, in this kingdom, of the said Mrs. Johanna O'Brien and Mrs. Benedicta Murphy, equally and per stirpes, grandchildren taking in manner aforesaid. That the said Patrick O'Brien did not divide or pay the same, or any part thereof, to such descendants respectively, or their representatives, but retained and applied the same to his own uses and purposes; and that among other sums so received by Patrick O'Brien from General Maurice De Lacy, were three several sums of 50,000 silver roubles, 60,000 silver roubles, and 19317. 14s. 2d. sterling.

"That in the course of the year 1817, General Mau- [33] rice De Lacy delivered to Patrick O'Brien, at different times, divers sums of money, amounting to the said sum of 50,000 silver roubles, in trust for and for the benefit aforesaid. That Patrick O'Brien accepted the said trust, and that he thereafter falsely represented to the said General Maurice De Lacy, or led him to suppose, that he had distributed this sum among the relations. That he accepted the said trusts, and wrote to persons in Ireland, stating that he had received the two last mentioned sums, on the trust and for the benefit aforesaid.

That in 1818, General De Lacy delivered to O'Brien 60,000 silver roubles, in trust for and for the benefit of the said descendants of Johanna O'Brien, and Benedicta Murphy, and of Mary O'Brien, in three equal shares per stirpes as aforesaid. And that Patrick O'Brien also, about the same period, received from General Maurice De Lacy, in trust for and for the benefit of the families or descendants of the sisters, Johanna and Benedicta, per stirpes, in manner and proportion as aforesaid, a sum of 19317. 14s. 2d.

That in 1837, a part of the trust funds was assigned to the

1843-Reed v. O'Brien.

plaintiffs, as trustees for the issue of the marriage between Charles Nash and Mary De Lacy his wife, who was one of the descendants.

The bill sought to recover these sums, and prayed an account of them; but neither the issue of this marriage, nor the legal personal representatives of General De Lacy, were made parties to this suit.

The principal defendants demurred for want of equity, and, ore tenus, for want of parties.

[*34] *Mr. Teed and Mr. Bacon, in support of the demurrer, contended, that the circumstances stated in the bill showed a mere agency, and not a trust. That the General, according to the statements of the bill, had delivered moneys to the defendant as his agent, for distribution amongst his relations; but that this did not give to such relations the right of insisting on its being handed over to them. That O'Brien had no trust to perform to the plaintiffs, and that his duty, at the utmost, was to hand over the funds; that for this he was accountable to the General only, whose agent he was, and not to the plaintiffs. Acton v. Woodgate,(a) Petre v. Espinasse.(b)

Secondly, that the statements were so vague and uncertain, that it was impossible to ascertain who were the persons for whose benefit the funds were intended. Wormald v. De Lisle.(c)

Thirdly, that as the legal personal representatives of the General had a right to insist that the defendant was merely an agent, and as they would become entitled to the fund, in case of failure or uncertainty of the objects, such representatives, and also the issue of the marriage of Charles Nash and his wife (who were the cestuis que trust of the plaintiffs) were necessary parties to

this suit.

Mr. Pemberton Leigh and Mr. Anderson in support of the bill. The bill expressly states that the defendant received the money as trustee, and accepted the trust; this statement cannot, on demurrer, be contested. The case is not one of agency;

(a) 2 Myl. & K. 492.
(b) Ib. 496.

(c) 3 Beav. 18.

1843.-Reed v. O'Brien.

it is a trust executed, which requires no aid of this court to complete. M'Fadden v. Jenkyns.(a)

*Secondly, the court will take steps to ascertain the [*35] class of objects; and it has often taken upon itself the per

formance of trusts, where there have been gifts to a class equally uncertain as the present.

The representatives of the settlor are not necessary parties, for, from the moment the gift became irrevocable, the donor's interest ceased.

Mr. Teed in reply.

Wheatley v. Purr,(b) Collinson v. Pattrick,(c) Bill v. Cureton, (d) were cited.

THE MASTER OF THE ROLLS said he would look at the authorities before he decided the demurrer for want of equity.

As to the objection for want of parties, he said that if the bill, on the whole, contained an allegation of a valid trust, then there would be a cessation of property in the donor, and his representatives would not be necessary parties. As to the issue of Nash being made parties, it appeared that a specific interest in the property had been assigned for the benefit of persons who had not been brought before the court; and that his present impression was, that they were necessary parties.

Nov. 8.-THE MASTER OF THE ROLLS: The bill states, that General Maurice De Lacy, who was domiciled in Russia, had remitted to Ireland several *sums of money for [*36] the benefit of the families or descendants of his deceased sisters, Johanna O'Brien and Benedicta Murphy, and that such remittances were to be divided amongst such families or descendants per stirpes, grandchildren taking in the place of, and representing such of their parents, the children of the deceased sisters, as were dead.

(a) 1 Hare, 458, and 1 Phil. 153. (b) 1 Keen, 551.

(c) 2 Keen, 123, and Com. Dig. Chancery, 4 W. s. 5.

(d) 2 Myl. & K. 503.

1843.-Reed v. O'Brien.

The bill then states, that at a time not distinctly mentioned, the defendant Patrick O'Brien received from General Maurice De Lacy divers large sums of money, in trust for and for the benefit of the families or descendants of Johanna O'Brien and Benedicta Murphy, equally and per stirpes, grandchildren taking in manner aforesaid; and that among other sums so received were 50,000 silver roubles and 1931. 14s. 2d. current money of Great Britain, or a sum of Russian money equal in value thereto; and that the defendant Patrick O'Brien accepted the said trust, and represented to General Maurice De Lacy that he had distributed the money accordingly.

The bill further states, that in 1818, General Maurice De Lacy delivered to the defendant Patrick O'Brien 60,000 silver roubles, in trust for and for the benefit of the said descendants of Johanna O'Brien and Benedicta Murphy, and of Mary O'Brien, in three equal shares per stirpes as aforesaid; and that the defendant Patrick O'Brien also, about the same period, received from or by the directions of General Maurice De Lacy, in trust for and for the benefit of the families or descendants of the sisters Johanna and Benedicta per stirpes, in manner and proportions aforesaid, a sum of 19317. 14s. 2d.

The bill alleges that the defendant Patrick O'Brien ac[*37] cepted the said trusts, and wrote to certain persons *in Ireland, stating that he had received the two last mentioned sums, on the trusts and for the benefit aforesaid, and that he placed with Sir M. Tierney a large part of the trust moneys, and that the said Sir M. Tierney accepted and received the same with knowledge of the trusts, and afterwards invested 25581., part thereof, in the purchase of 3 per cent. annuities.

These allegations are admitted for the purpose of the demurrer; but it is argued, that although a trust be stated, yet, taking the statements of the alleged trust, together with the context of the bill, it appears, that the real transaction meant to be alleged was a mere agency, and not a trust to be executed in this court, and, further, that if it be a trust, the nature and purposes are stated with so much uncertainty, as to make it unfit for this court to entertain the suit.

There is, indeed, a considerable, and perhaps an intended am

1843.-Reed v. O'Brien.

biguity in the statements of the bill; but, on carefully reading the whole, and being, I confess, unable to understand why some of the statements are introduced, I cannot say that there is any thing irreconcilable with the distinct allegations of trust; and if a trust should ultimately be established, I think that the nature and objects of it are not stated with such vagueness and uncertainty as to make it impracticable for the court to execute it. The statements are indeed not satisfactorily made, and they are such, as to make it probable that there may be great, if not insuperable, difficulties in establishing the case alleged by the plaintiffs; but, taking the allegations as they stand admitted on this occasion, I think that the demurrer for want of equity must be overruled.

*The defendants demurred ore tenus for want of parties, ["38] and stated several objections. Having regard to the allegations of the bill, I do not think, that as the case is now stated, the legal personal representative of General De Lacy is a necessary party. But the plaintiffs are only assignees of a share once vested in Johanna Pierce, in trust for persons who are not parties; and it does not appear to me, that the suit can proceed in the absence of these cestuis que trust.[1]

The trusts are alleged to have been created in or about 1817 or 1818, for the benefit of the families or descendants of the sisters. of General De Lacy.

Johanna O'Brien, one of the sisters, died before 1795, leaving a daughter Johanna Pierce, who died in 1821, leaving children. Johanna Pierce was living in 1818, and, according to the statement in the bill, was entitled to a share of the trust funds, and upon her death, this share would pass to her legal personal representative.

Mary De Lacy Pierce was one of the children of Johanna Pierce. In April, 1836, she married Charles Nash, and in April, 1837, it is alleged, that a deed was executed, whereby John Fitzmaurice Pierce (the surviving husband of Johanna Pierce,) and other persons, assigned to the plaintiff O'Connor and George Pierce a share of the 60,000 silver roubles, part of the alleged

[1] Josling v. Karr, 3 Beav. 494; Holland v. Baker, 3 Hare, 72. VOL. VII. 5