1844 Rowley v. Adams.

contest, in this case, appears to me to be of no importance to Henry Earley Wyatt, because, upon consideration of the testator's will, I am of opinion, that the real estate of Henry Wyatt, which descended to Henry Earley Wyatt as his heir, is subject to the payment of the legacies given by his will; but I think that the finding of the master is incorrect, and that the twentieth exception must be overruled.

Upon the further directions, the principal question is, whether the plaintiffs, the legatees, are now entitled to have the testator's real estate descended or devised, sold for the payment of their legacies; and I think that they are. The plaintiffs have, in vain, attempted to realize the primary fund out of which the testator directed the legacies to be paid. They have endeavored to prove that such primary fund really existed, and on the supposition of its having had an existence, they have used endeavors, the sincerity of which cannot be doubted, to *charge [*550] the executors personally with the loss of it. In these endeavors they have failed. It is not now, and the probability is that it never can be known with certainty, whether the funds applicable, in priority to the real estate, existed or not, or who is answerable for it, if it did exist; and the plaintiffs having done all in their power to ascertain the primary fund and make it available, so as to avoid resorting to the real estate, I am of opinion, that they ought not to be delayed further, and are now entitled to have the real estate sold.

It is very unsatisfactory to be obliged to make a decree under such circumstances. However improbable, it is still possible that it may be discovered that there was a primary fund, and that some of the parties to this cause are answerable for it; and in order to leave the means of redress open, as far as I can, consistently with the rights of the plaintiff's, I must make this decree

582; Story's Part. § 92, 93; Custance v. Bradshaw, 4 Hare, 315, 322. Where real estate was purchased by two partners, with the funds, and for the business of the co-partnership, and one of them died, leaving the firm without personal property sufficient to pay its debts; it was held, that the real estate was in equity, to be treated as personal property, and the surviving partner had an absolute right to dispose of it as such, for the payment of the debts of the firm. Delmonico v. Guil laume, 2 Sand. Ch. Rep. 366; Dyer v. Clark, 5 Metc. 562.

1844.-Rowley v. Adams.

without prejudice to any claim which may be made in respect of the primary fund, in any other proceedings against any party who may be answerable for the same.

It does not appear to me that any order ought now to be made for the payment of the rents of the real estates received by Henry Earley Wyatt or William.

Provision must be made for payment of the several sums of money which the master has found to be due to Adams, to Marks, and to the estate of Hannah Wyatt.

With respect to the costs, so far as the suits relate to the establishment of the will, and the account of such parts of the personal estate of the testator as did not consist of his share or interest in the partnership, I think that all parties are entitled to their costs; the executors having their costs as between solicitor and

client. So far as the suits relate to the accounts of the [*551] partnership *dealings and property, and with respect to the special inquiries, and the exceptions which relate thereto, I am of opinion that the parties, other than the executors, and Henry Earley Wyatt and George Wyatt and his assignees, are entitled to their costs; but having regard to all the circumstances of the case, I am of opinion, that neither the executors, nor Henry Earley Wyatt, nor George Wyatt, nor his assignees, are entitled to any costs.

It was strongly urged, that I ought to charge the executors with the whole costs of the suit, or at least with the particular costs to which I have last adverted; but, on consideration, I think that I ought not to charge them, as I should have done, if I could have agreed with the master's report on the principal exceptions.

1844.-Archer v. Hudson.

1844 July 8, 11.

ARCHER v. HUDSON.[1]

A niece, two months after she came of age, and after her guardians had fully accounted to her, entered into a voluntary security for her uncle, by whom she had been brought up, and who was considered by the court as standing in loco parentis. The court set it aside.

Where a transaction takes place between parent and child, just after the child has attained twenty-one, and prior to what may be called a complete "emancipation," without any benefit moving to the child, the presumption is that an undue influence has been exercised on the part of the child, and a party seeking to maintain such a transaction must show that that presumption is adequately rebutted.

Though courts of equity do not interfere to prevent an act even of bounty between parent and child, yet they will see that the child is placed in such a position as will enable him to form an entirely free and unfettered judgment, independent altogether of any sort of control.

Surety by promissory note, for a floating balance due to bankers from a customer, held released by the bankers crediting the customer with the full amount of the note, without advancing the money at the time.

IN 1825, the surviving parent of the plaintiff, Mrs. Archer, (then Miss Kendray,) died, leaving her an orphan of the age of about nine years. For about seven years previous to her attaining twenty-one, she *resided with her uncle and [*552] aunt, Mr. and Mrs. Daniel, at Thirsk. Miss Kendray was entitled to some property, consisting of a sum of 11127., and the moiety of some houses, &c., producing an income of about 1451. a year. During her minority her uncle "was paid a suitable sum for her maintenance by her guardian, out of the income of her property."

On the 8th of November, 1837, Miss Kendray attained her age of twenty-one years, whereupon her guardians transferred her property to her, and she, on the 21st of the same month, executed a release to them.

It appeared that in July, 1837, her uncle Daniel had opened an account with the Thirsk branch of the York Union Banking Company, of which Hauxwell was the manager. At the end

[1] S. C. but on a mere point of practice, 8 Beav. 321.

1844.-Archer v. Hudson.

of December, Daniel had overdrawn his account to the extent of 70%.

About the 1st of January, 1838, Miss Kendray joined, as surety for her uncle Mr. Daniel, in a promissory note for 500l. to the bank, and by that note, she and her uncle jointly and severally promised to pay the bank the sum of 500l. with interest. The note was handed over, but was not at that time entered in the bankers' books. The way in which it was afterwards dealt with will be presently stated.

On the 13th of November, 1841, Miss Kendray married the plaintiff Mr. Archer.

After the marriage, the bank appeared to have made some inquiries as to the property of Miss Kendray, and on the 9th of December, 1841, the 500l., the promissory note, was placed to

the credit of Daniel's account, but entered in the banker's [*553] books under date *the 12th of November, 1841, this being the day previous to her marriage, at which time the balance against Daniel appeared to be about 967.

In 1843, Daniel became insolvent. Being then indebted to the bankers in a sum exceeding 5007., they, on the 24th of April, 1843, commenced an action at law against the plaintiffs, to recover the amount secured by the promissory note of 5001. The plaintiffs thereupon instituted this suit, in order to get relieved from their liability under the note.

Thus far the facts of the case were beyond dispute; it is now necessary to state the material allegations of the bill and the evidence in support of thein.

The bill alleged, that the signature of Miss Kendray to the note had been obtained by a scheme or plan between her uncle and the agent of the banking company, entered into previous to her coming of age. That she signed it with reluctance, and entirely through the influence which her uncle and aunt had acquired over her. That it was represented to be a matter of form, and that she would never be required to pay any thing in consequence. The bill stated, that the note was given for the amount then in arrear, which the bill alleged had been discharged by subsequent payments by Daniel; and that, under

1844-Archer v. Hudson.

the circumstances aforesaid, the note was fraudulent and void, and ought to be delivered up to be cancelled.

The bill charged "that if the note was ever discounted by the company, the same was not discounted, or the amount thereof credited to Daniel, until some time after the date thereof, and was so discounted unknown to the plaintiffs, and was not carried to a separate *account to the debits of the [*554] plaintiffs and Daniel, but remained in the possession of the company, as a note payable on demand by Daniel; and the company, by so dealing with the note, destroyed `such right, if any, as they previously had, to hold the same as a collateral security for the balance due from Daniel to the said company; and that the subsequent payment by Daniel to the company exceeded the amount of the promissory note, and of the balance then due to the company, and ought, if necessary, to be applied to the satisfaction of the note and of the balance."

The bill prayed a declaration, that the promissory note had been fraudulently obtained from the plaintiff by Daniel and the banking company, and was fraudulent and void against the plaintiffs; and that if not fraudulent and void, then for a declaration, that the subsequent payment to the bank ought to be applied in reduction of the balance due on the promissory note.

The answer denied all the allegations of the fraud and the alleged scheme, and stated, "that about the months of November or December, 1837, the account of Daniel with the banking company being overdrawn, Daniel proposed to Mr. Hauxwell, that he and his niece Frances Kendray should give to the banking company a joint and several promissory note for 500l. and interest, as a collateral and continuing security to the company for the balance that might, from time to time, become due from Daniel to the said banking company on his account with them, and that the same should be a continuing guarantee to them for the balance of the banking account of the said C. Daniel."

The evidence on the part of the plaintiffs went to show the control and influence which Mr. and Mrs. "Daniel [*555] had acquired and exercised over their niece, the subsistence of an intimacy between Daniel and Hauxwell, and of the knowledge of the latter of the circumstances, fortune, and situaVOL. VII.

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