1844. Rowley v. Adams. do it as far as they lawfully could, released Henry Earley Wyatt from all claim they might have against him, in respect of any "surplus capital," and also from any claim they might have against him as creditors of the partnership. After the date of these deeds, the business was carried on by George Wyatt alone. On the 6th of May, 1827, William, the younger brother, came of age. He declined to become a partner in the business, and on the 15th of July, in the same year, a new bill was filed by Rowley and Orchard, and their wives and children, to have the estate protected, and the trusts of the will executed. In that suit, it was alleged, that the executors had proved the will, but that, in consequence of various disputes and differences, they had not acted in the trusts or in execution of the will of Henry Wyatt. A receiver was appointed, and George Wyatt having, with the approbation of the executors, contracted to sell the property to Messrs. Thomson, a reference was made(a) to the master to inquire into the propriety of that arrangement; and ultimately(b) it appeared that the concern was insolvent, the debts owing by the concern amounting to 64,6007. and upwards, whilst the assets did not amount to 57,4007.; and thus, the partnership property turned out to be wholly unproductive to the testator's estate. George Wyatt and Thomson, not long afterwards, became bankrupt, (c) and Henry Earley Wyatt obtained payment of part only of the 15,0007. stipulated to be paid to him. The present bill was filed, by the infants interested in the two legacies of 12,000l., on the 3rd of January, *1831; [*413] and the allegation on their behalf, which I have now to consider, is, that the executors, without their wilful default, might have obtained payment of the legacies of 12,000l. out of the partnership property. For the purpose of proving, that the executors might, without their wilful default, have obtained payment of the two legacies of 12,000l. it should be established: First. That there were assets applicable to the payment of the legacies, which the executors might have received. (a) Nov. 1829. (b) In March, 1830. (c) In Dec. 1831. 1844.-Rowley v. Adams. Secondly. That such assets were lost through the wilful neglect or default of the executors. In this case, therefore, the first question is, whether the testator had in the partnership concern, in the shape of "surplus capital" or otherwise, an interest convertible into money sufficient for the payment of these legacies. Sir John Leach, by his decree dated the 28th of April, 1832, directed an inquiry as to the accuracy of the recitals in the deed of the 31st of December, 1825; and an inquiry, what, at the time of the death of Henry Wyatt, was the value of the plant, utensils, implements, horses, drays, wagons, and other effects, not excluding malt, ale, beer, and debts; and also what was, at that time, the amount of surplus money due and owing from the business, and belonging to the testator. Sir John Leach thought fit to direct the inquiry as to the accuracy of the statement in the partnership deed, although his own mind appears to have been satisfied on the subject, for he [*414] said, that no person looking at *the case could fail to see that the sums named in the deed were nominal and fictitious sums. The master made his report on the 39th day of April, 1835; he states that various books, which, by the evidence before him, appear to have been kept and used in the partnership business, had not been produced before him,-viz. the cash book, the bankers pass book, the check book, two books bound in calf, in which were entered the annual accounts of the partnership for the year preceding the 1st of January, 1825, and two other books containing an account of what each partner, had drawn out. And he finds, that, in consequence of the non-production of the books, he is unable to state what, on the 1st of January, 1825, was the value of the plant and other articles, which in the deed of the 31st of December, 1825, was stated to amount to the sum of 63,6261. 4s. 1d. But he found, that, on the 1st of January, 1825, there was due from the partnership to Henry Wyatt 48,915l. 5s. 10d. and to Henry Earley Wyatt 31291. 16s. 10d., which sums were considered as surplus capital; but that they did not consist of moneys or surplus capital over and above what was employed in the trade. That 13,000l., part of 62,0451. 2s. 8d. the aggregate 1844.-Rowley v. Adams. of the two sums owing to the partners, represented improvements made to the stock since the 1st of January, 1817, and the residue about 39,000l., represented the property of the partnership of Wyatt & Son, exclusively of the plant and other things, and except the improvements, but in the absence of the books in which the accounts were entered, and of the other books before referred to, and save as in his report set forth, the master was unable to state the particulars of the sum of 13,000l., or, except as in his report mentioned, how the several sums of 48,915l. 5s. 10d. and 31297. 16s. were made up, or what was the amount of surplus money due *and owing from the business to the said [*415] Henry Wyatt and Henry Earley Wyatt on the 1st of January, 1825. The master further finds what was the value of the plant and other things at the time of the testator's death. No evidence had been laid before him as to the quantity or value of the malt, hops, and corn on the premises at that time; but he finds the value of several other particulars, amounting in the whole to 70,2087., subject to a debt of 80007. owing to the bankers; and that there was owing to Henry Wyatt from the concern a sum of 75,3291. 9s. 8d. ; and that the property liable to pay the same was, in the first instance, subject to the debts owing from the partnership, but that, from the non-production of the books, he was unable to state, save as aforesaid, what was the amount of surplus money at that time due and owing from the business and belonging to Henry Wyatt. Considering that the testator's assets were to be determined at the time of his death, and that the state of the partnership at a prior time could only be material as affording a period and a state of accounts from which a subsequent account could be taken, the directions contained in the decree were imperfect; and upon the report, made on such imperfect evidence, in answer to the inquiries directed by Sir John Leach, no further directions could be given, and the case coming on before Lord Cottenham, when Master of the Rolls, on the 11th of January, 1836, he directed an account to be taken of the partnership dealings and transactions, regard being had to the findings stated in the master's report of the 29th of April, 1835; and if he should find that he was unable to take such account, by reason of the non-production of books of 1844.-Rowley v. Adams. account or other circumstances, he was to ascertain and [*416] state such circumstances and to make a separate *report thereof; (a) and thereupon the parties were to be at liberty to apply to the court for such further order as should be necessary, and the usual accounts were directed to be taken of the testator's personal estate, debts, and legacies, and the master was to inquire as to the real estate. In his judgment, on making this order, Lord Cottenham noticed, that the plaintiffs were claiming their legacies out of a specified part of the testator's estate, and could not be in a better situation than a legatee of such specific part would be, and that no specific legatee could recover the thing bequeathed, without proving the existence of the thing bequeathed, and that it was not wanted to satisfy prior charges. The master made a separate report, dated the 12th of June, 1837, and thereby found, from such evidence as was before him, that hops belonging to the brewery business at the testator's death were, according to one estimate, of the value of 79937. 15s., and, according to another estimate, of the value of 48937. 15s., and that, besides the book debts owing to the bankers, the partnership was indebted to other persons to the amount of 17,4637.;(b) and he expressed his opinion to be, that, by reason of the non-production of the books of account therein mentioned and the circumstances therein contained, he could not take the account of the partnership dealings and transactions by the order directed to be taken, further than before mentioned, and that he had no means whatever of taking any account as between the individual partners in the business. [*417] *Exceptions were taken to the separate report, and the master made his general report on the 1st of May, 1838, and the cause came before me on the exceptions and for further directions. The exceptions were overruled, and on the 9th of May, 1839, it was referred back to the master to make the inquiries which I have before particularly mentioned. (a) (a) See Turner v. Corney, 5 Beavan, 515. (b) He also found that the stock of malt on the premises at the death of the 1844.-Rowley v. Adams. This order was reheard before the Lord Chancellor, who confirmed it,(a) and, in pursuance thereof, the master made his report of the 16th of December, 1843, which is now under consideration. The general result of the master's report is, that at the time of the testator's death the partnership assets were of the value of 89,9617.; that the debts owing from the firm to strangers amounted to 39,7487., leaving a surplus of somewhat more than 50,000%. that the firm was indebted to the testator in more than 57,0007. : and the master has concluded, that the executors might, without their wilful default, have obtained out of the assets, and for the testator's estate, a sufficient sum to pay the two legacies of 12,000. each, or might have obtained security for them. It is obvious that the master, although he has used the utmost diligence, has not been able to obtain results satisfactorily showing the state of the assets and liabilities of the firm. Having used his best endeavors to obtain accurate results, he states, in his different reports, that, save as he has done, he is unable, in consequence of the non-appearance of the books relating to the partnership, to state the property and effects of the partnership existing at the testator's death, or by whom they were *received or applied, or what parts thereof were out [418] standing. After all the trouble which has been taken, and all the expense incurred, it is, at this time, more a matter of conjecture than of proof what the assets and liabilities were. The accounts of the dealings and transactions of the partnership have not been, and cannot be, accurately taken. No account has been taken between the individual partners. It does not appear what would probably have been produced by a sale of the plant and stock, on breaking up the business shortly after the testator's death. The value of the malt, though stated in a report which has been confirmed, does not rest on proof which can be called satisfactory. The value of the hops, as stated in this report, is not satisfactorily proved; and the amount of debts, in the first report stated to be 80007. and upwards, in the second report stated to be 25,4637., and in the present report stated to be |