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[*394]

1844-Denton v. Denton.

*The trustees, therefore, now desire that the system which has gone on from the testator's death to the present time may be discontinued, not because the tenant for life has done any thing wrong, for nothing had before been said about the timber, but because something wrong may be done. That, I think, is a subject which may hereafter be properly examined into; but what I am to consider upon this interlocutory application is, whether the state of circumstances existing from the testator's death to the present time ought not to be continued up to the hearing of the cause, preserving matters as they were; and I think there is no reason at all why this state of things should, at present, be altered.

At the same time, I am desirous of not saying any thing which may tend to diminish the legal power the trustees may have. I say nothing about their estate; they may be entitled to the whole extent they now contend for; and it may be extremely necessary for the purpose of protecting the estate, that they should interfere. What I have now to consider is, whether they have done right in interfering with the existing state of things, and in endeavoring to take away from the plaintiff, before his rights have been finally determined, that which the trustee has heretofore acquiesced in his having.

Before I interfere, I must have a very distinct undertaking from the plaintiff, to keep down the annuities,-not to cut any timber without the consent of the trustees,-nor to grant any lease beyond leases from year to year, without the consent of the trustees. The plaintiff giving these undertakings, and bringing the deeds into court, and leave being given to the defendants to apply if any of them should be infringed, I shall restrain the defendants from proceeding with the action, and from interfering with the plaintiff in the receipt of the rents.

1844.-Rowley v. Adams.

"ROWLEY V. ADAMS.[1]

1844: March 1, 2, 4, 5, 6, 7, 9; May 9.

[*395]

Special directions given in a decree for an account, that if the master should be unable to take such account, by reason of the non-production of the books of account or other circumstances, he should ascertain and state such circumstances, and report thereon.

Difficulty in making a decree against parties depending on the result of accounts, which could not be satisfactorily taken, in consequence of the loss of the books of account.

Executors having, for about three years, paid interest on the plaintiff's legacies, the court, at the first hearing, directed accounts, with a view of determining, from the state of the assets, the liability of the executors to pay the legacies. The court, on further directions, refused to hold, that by payment of interest the executors had admitted assets, such a conclusion being wholly at variance with all that had been previously done in the suit.

In 1825 the testator and his son Henry E., who had previously carried on business as brewers, admitted another son, George, into partnership. By the partnership deed, it was agreed, that the plant, &c, which it was stated had been valued at 63,6001., exclusive of the stock and debts, should be the capital, of which the testator was to be entitled to a moiety. The testator's surplus moneys in the business were represented to amount to 48,9157., on which the testator was to receive interest. The testator died in 1826, having, by his will, given his surplus capital to his executors, in trust, to invest on security, and pay the income to his wife, and after her death to set apart two legacies of 12,000l. each for his daughters and their children; and he gave his interest in the business, and the stipulated ordinary capital, to his sons Henry E., George, and William, who was a minor, and he directed and required his executors to carry on the business, in conjunction with his sons, until the youngest attained twenty-one, and he empowered them to sell the brewery during William's minority. He charged his freehold and other property with the payment of his surplus capital, and directed mortgages of his real estate for securing the legacies. The will was not proved till December, 1827; but, after the testator's death the executors left the surviving partners in the undisturbed possession of the partnership property, and though they did not take any active part, the business was carried on with their concurrence. Disputes arose between the surviving partners, and a suit for administration was instituted, which, through the interference of the executors, was abandoned. In January, 1828, the executors joined in deeds whereby the partnership was dissolved, and Henry E. assigned his interest to George in consideration of 20,000l., and the executors released Henry E. from all claims in respect of any surplus capital. The business was afterwards sold with the sanction of the court, and in

[1] S. C. 4 Myl. & Cr. 534; post. 548; S. C. on a point arising before the master, 1 Myl. & K. 543.

1844.-Rowley v. Adams.

March, 1830, was found to be insolvent, and the partnership property turned out to be wholly unproductive to the testator's estate. In January, 1831, a bill was filed by infants interested in the two legacies, seeking to charge the executors with wilful default in not having obtained payment of the legacies out of the surplus capital. By several decretal orders, accounts were directed to be taken as to the accuracy of the recitals in the partnership deed, the value of the plant, &c., and the surplus money due to the testator at his death, and accounts of the partnership dealings and transactions; and if he should find that he was unable to take such account, by reason of the non-production of books of account, he was to state the circumstances. He was also directed to inquire by whom the partnership property was possessed at the death of the testator, and how disposed of, and whether the executors, with due diligence and without their wilful default, Inight have possessed themselves, out of the partnership property, of sufficient to pay the two legacies of 12,000l. The master was unable to take the accounts, by reason of the non-production of the books. He found, however, on the imperfect evidence before him, large sums due to the testator, and large partnership assets, which however varied in each of his three reports: he also found that the executors might, with due diligence, &c., have possessed themselves, out of the partnership property, of sufficient to pay the two legacies. The court, however, was of opinion, that there was no reason for thinking that the testator's surplus capital could, if at all, have been realized without putting an end to the business, which the executors were not bound to do. That though the executors had not fully or properly performed their duty, still it was more a matter of conjecture than of proof what the assets and liabilities were, that the results were not accurate or approaching to accuracy, and that it had not been satisfactorily made out either that there were partnership assets, out of which the legacies could have been recovered or secured, nor that the assets were such as to make it impracticable for the executors to obtain payment of the legacies. The court, in this state of things, declined to charge the executors.

THIS cause came before the court upon exceptions to the master's report. The facts are fully detailed in the judgment of the Master of the Rolls.

[*396] *Sir William Follett, (Solicitor General,) Mr. Kindersley and Mr. Russell, for the executors, and in sup

port of the exceptions.

Mr. Turner and Mr. James Parker, for the plaintiffs, the children of the legatees of 12,000.

Mr. Tinney and Mr. Erskine, for Mr. and Mrs. Rowley, and Mr. and Mrs. Adams.

1844. Rowley v. Adams.

Mr. Wray, for the representatives of William Wyatt, the testator's youngest son.

Mr. Temple and Mr. Collins, for Henry Earley Wyatt.

Sir William Follett, in reply.

May 9th.-THE MASTER OF THE ROLLS-By a decretal order made in these causes, on the 9th of May, 1839, it was, amongst other things, referred back to the master to in- [*397] quire and state to the court, by whom the property and effects of the partnership in the causes mentioned, existing at the death of the testator Henry Wyatt, were possessed and received, and how and by whom the same had been applied and disposed of, and what had become thereof. And the master was to inquire, whether the executors, with due diligence and without their wilful default, might have possessed themselves, out of the partnership property and for the testator's estate, of a sufficient sum to pay and satisfy the two legacies of 12,000l. each, found to be due to the plaintiffs, or any and what part thereof; and in making the inquiries, the master was to have regard to the findings in his several reports of the 29th of April, 1835, the 12th of June, 1837, and the 1st of May, 1838.

The master, by his report dated the 16th of December, 1843, finds, that the partnership business was carried on after the testator's death by Henry Earley Wyatt and George Wyatt with the concurrence of the executors; but he does not find that the executors or either of them interfered with or gave any orders or directions with respect to the management thereof, or to the collection of the assets thereof. And, on consideration of the states of facts and evidence before him, he finds, that on the decease of the testator there were sufficient assets of the partnership, existing at the death of the testator Henry Wyatt, for the payment of the two legacies of 12,000l. each, and he found, that the defendants the executors, with due diligence and without their wilful default, might have possessed themselves, out of the partnership property for the testator's estate, of a sufficient sum to pay and satisfy the legacies found due to the plaintiffs, or that they might VOL. VII. 43

1844-Rowley v. Adams.

with due diligence and without their wilful default, have [*398] secured, out of such *property and for the testator's estate, a sum sufficient for the payment of the legacies. To this report the defendants, the executors, have filed twenty exceptions, of which the three first are admitted to be the most material.

In these exceptions it is alleged, first, that the master ought not to have certified, that on the decease of the testator Henry Wyatt there were sufficient assets of the partnership existing for the payment of the legacies of 12,000l. and 12,000l. Secondly, that he ought not to have certified, that the executors, with due diligence and without their wilful default, might have possessed themselves, out of the partnership property and for the testator's estate, of a sufficient sum to pay and satisfy the legacies, or might with due diligence and without their wilful default, have secured, out of such property and for the testator's estate, a sum sufficient for payment of the said legacies. Thirdly, that he ought to have certified, that the executors could not, with due diligence and without their wilful default, have possessed themselves, out of the partnership property and for the testator's estate, of a sum sufficient to pay and satisfy the legacies.

Henry Wyatt, the testator, had carried on business as a brewer on his own account. He had three sons-Henry Earley, George, and William; and, having agreed to take Henry Early into partnership for a fourth share, he executed a deed, dated the 9th of April, 1817, and made between himself of the one part, and Henry Earley Wyatt of the other part. It was therein recited, that the father had proposed and agreed to take the son into partnership

for the term of twenty-one years, and to give him (sub[399] ject to a proviso after contained,) a fourth *part or share

of the plant, stock in trade, and effects of the business, except the stock of malt, ale, and beer, and the debts owing to the father up to the 1st of January then last; and further, that the said one-fourth share had been estimated at the sum of 60007. as as the fourth part of 24,000l., the balance due to the father from the trade, upon which sum, it was agreed, that the son should, out of his share of profit, allow to the father interest at the rate of 5 per cent. per annum. In the operative part of the deed, it

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