1844.-Rowley v. Adams. was provided that Henry Wyatt, the father, might, at any time during the continuance of the partnership, sell and dispose of his share in the partnership stock in trade and effects and good-will, to any person or persons, who should thereupon be taken and received as a partner in the trade, upon such terms as might be mutually agreed upon between the father and son. And it was agreed, that any sum lent to the concern by either party, or any share of profits left in the concern by either party with the consent of the other, should bear interest at the rate of 5 per cent, per annum. On the 1st of January, 1825, George Wyatt, the second son, was admitted a partner with Henry Wyatt, the father, and Henry Early Wyatt, the eldest son. The deed to carry into effect the agreement then made, is dated the 31st of December, 1825, and it was made between Henry Wyatt of the first part, Henry Earley Wyatt of the second part, and George Wyatt of the third part. The partnership between Henry Wyatt and Henry Earley Wyatt was dissolved, and it was agreed, that Henry Wyatt, Henry Earley Wyatt, and George Wyatt, should become and be partners from the 1st of January, 1825, for seven years, if all of them, or if Henry Wyatt and either of the others should so long live. *The second article, which has given rise to much con- [*400] troversy in this case, was to the following effect :-That the plant, utensils, implements, horses, drays, wagons, carts, live and dead stock, and other effects now belonging to and employed in the business which have been valued at the sum of 63,6261. 4s. 1d., (exclusive of the stock of malt, ale, and beer, and the debts due and owing to the late partnership up to the 31st of December last inclusive, and which are meant to continue the property of Henry Wyatt and Henry Earley Wyatt as part of the effects of their late partnership, and exclusive also of the principal sum of 48,9151. 5s. 10d. the amount of surplus money due and owing from the business and belonging to Henry Wyatt; and also the further principal sum of 31297. 16s. 10d. the amount of surplus money due and owing from the business, and belonging to Henry Earley Wyatt, which shall be employed by and in the said intended partnership,) and the capital of the said partnership shall consist of the said sum of 63,6267. 4s. Id., and the said 1844. Rowley v. Adams. several sums of 48,915l. 5s. 10d. and 31297. 16s. 10d. shall form a surplus capital of the said Henry Wyatt and Henry Earley Wyatt, on which they shall respectively receive interest. Henry Wyatt was to be entitled to one equal moiety of the 63,6267. 4s. 1d., and Henry Earley Wyatt to an equal fourth part thereof; and the annual profits of the business were to be applied in paying to Henry Wyatt and Henry Early Wyatt interest, at 5 per cent., upon the several sums of 48,9157. 5s. 10d. and 31291. 16s. 10d. respectively, and the clear residue thereof was to be paid as to one-half to Henry Wyatt, and Henry Earley Wyatt and George Wyatt were each of them to have one-fourth, but, out of the onefourth of George, Henry Wyatt was to have interest at 3 per cent. upon 15,9097. 1s. being the fourth part of the capital of 63,6267. 4s. 1d. [*401] *No one of those who have had to consider this deed, seems to have been able to understand what the parties really meant by the recital which it contains, and the intention which they might have had is, at this time, involved in as much obscurity as ever. It must be supposed, that, on the 31st of December, 1825, there was considerable property belonging to the firm of Henry Wyatt & Son, and several debts owing to and from the firm. In computing the capital to be employed in the new firm, certain portions of the property were excluded; amongst other portions, the debts owing to the old concern: nothing is said as to the mode of paying the debts owing by the old concern; but assuming that the property of the old firm which was excluded from the computation of the capital to be employed in the new firm was sufficient for the purpose, and was intended to be applied in payment of the debts of the old firm, it is stated, that 63,6261. 4s. 1d. was to be the capital employed in the new firm, and that the two sums owing to the old partners, and amounting together to upwards of 52,000l., were to form a surplus capital. It would seem, that the whole of the tangible property with which the business was to be carried on, and by which all charges were to be borne, had been estimated, or perhaps arbitrarily stated, at 63,6267. and that this was the only property out of which the 52,0457. was to be paid to the old partners, and yet interest at 5 per cent. upon the 52,0457. was made payable out of 1844.-Rowley v. Adams. the profits of the new firm, and George Wyatt was, besides, to pay interest at 3 per cent. on 15,9197. as a fourth part of the 63,6267., stated to be the value of the capital to be employed in the new concern, just as if no debt had been charged upon it. *The business was, however, carried on, as the parties [*402] may have supposed, under the provisions of this deed. Henry Wyatt made his will, dated the 14th of June, 1826, and he thereby bequeathed to the defendants Adams and Marks all such surplus pecuniary capital and then accrued interest thereon, as, at his decease, he should have in his business, over and above his rightful and stipulated capital therein, and also such shares as he should be entitled to in government, East India or South Sea stock, in trust to invest the same surplus capital in government or real securities, and to stand possessed of the surplus capital, stocks and funds, on trust, during the life of his wife, to pay the income to her, and, after her death, on trust, out of the same surplus capital, stocks and funds, to appropriate and set apart the two several legacies of 12,000l., each afterwards given for the benefit of his two daughters and their children; and he gave the residue to his two sons George and William. And he gave a copyhold estate to his wife for life, with remainder to his son George, and a freehold estate to his wife for life, with remainder to his son William. And then he gave, devised and bequeathed all his share and interest of and in the brew-house, and of and in the plant, stock in trade, and all chattels used in carrying on the business, and of and in the good-will of the said business, and the stipulated ordinary capital for carrying on the said business, (charged and chargeable as in the said will mentioned,) as to one moiety of his moiety, being one-fourth of the whole, unto and for the use of his son William; and as to the other moiety of his moiety, being the remaining one-fourth of the whole, unto and equally between his sons George and William. And he directed and required his executrix and executors to concur in carrying and managing his said business, in conjunction with his sons for the time being of full age, on *be- [*403] half of William, he being under the age of twenty-one years; and for their trouble they were to have 50l. a year out of William's share, and thereout an allowance was to be made for 1844.-Rowley v. Adams. William's maintenance, and the residue of the annual gains was to be invested for his benefit. The testator then gave the residue of his personal estate, subject to his debts and funeral and testamentary expenses, and the deficiency of legacies and otherwise as before mentioned, to his executrix and executors to be invested, and the income to be paid to his wife for life, and after her decease, in trust for his sons George and William and his daughters. The testator then gave the two legacies of 12,000. each to Adams and Marks, in trust for the benefit of his daughters and their children, with such remainders over as in the will stated. He then empowered the guardians of his son William, during his minority, if they should think fit to sell William's share in the brewery, and all benefit thereof, unto his brothers, or any other person. He then gave certain property to his son Henry Earley, and for the benefit of his son William, making the same subject to his just debts, funeral and testamentary expenses and legacies. And he declared that all the freehold and other property whatsoever, devised, given and bequeathed by his will, was so devised, given and bequeathed, subject to and charged and chargeable with the payment of the surplus capital continued or lent in the business, and the interest for the same. And he charged all his copyhold and customary estates devised by his will, and also his residuary estate, with the payment of the two several sums of 12,000l. to his daughters, and directed that interest, after the rate of 5 per cent. per annum, should be paid thereon till invested, from and after the decease of his wife; and he directed that his sons and all necessary parties should, when ever thereunto required, (and which he directed might be [*404] *done,) duly execute good and sufficient mortgages to his trustees, of the same copyhold or customary and freehold estates for securing payment of the same sums of 12,0001. each, with interest for the same sums respectively after the rate aforesaid, and expenses, within two years after the date of his decease, in which mortgages were to be contained powers of sale; and should also enter into and execute any other deed, for more effectually charging and making liable such estates, and also the testator's residuary estates, with the payment of the two sums of 12,000l. and interest and expenses. And he appointed 1844.-Rowley v. Adams. his wife, or, after her decease or second marriage, Samuel Adams and Edmund Marks, guardian or guardians of his son William Wyatt. And he appointed his wife and Adams and Marks executors of his will. The testator died on the 9th of July, 1826, and the executors were willing to prove the will and to act in execution of the trusts thereof. By the testator's death, the partnership, so far as it depended on the deed of the 31st of December, 1825, ceased; but the testator directed and required his executors to concur in carrying on the business in conjunction with his sons Henry Earley and George. By the recital, in the deed of the 31st of December, 1825, the testator and his sons had represented, that the capital employed in the concern, exclusive of the stock of ale, &c. and also exclusive of the debts owing to the concern, exceeded 63,000l. and that he had surplus capital to the amount of 48,000l. It has been considered that, by the expression "surplus capital," which is used in the deed of December, 1825, the parties did not mean moneys or surplus capital "beyond what [*405] was employed in the business, but did mean the amount of debts due from the partnership to the individual partners, and payable out of the partnership assets, which were, in the first instance, subject to the debts due from the partnership; and, even on the assumption that a large debt was due to the testator's estate from the partnership, and that the partnership property, after payment of the debts due from the partnership to other persons, was sufficient to pay what was due to the testator, I find nothing in the proceedings which affords any reason for thinking, that the sum of money or debt which the testator called his surplus capital, could, if at all, have been raised or realized, without putting an end to the trade and selling off the property employed in it. But having regard to the circumstances in which the executors were placed at the time of the testator's death, considering the nature of his will, and the recitals in the deed, the executors appear to me to have had some reason to think otherwise. The testator would seem to have intended, not only that the "surplus capital," as he called it, should be taken out of the concern, but also that the trade should be carried on, for he gave the surplus |