1844.

INMAN

v.

WHITLEY.

themselves, that a recovery should be suffered of the estate, and that the same should be vested in the trustees, John Inman and John Whitley, and be sold. Accordingly, by certain indentures dated the 5th and 6th of November 1795, which were executed by George Inman the son of the first part, Henry Inman and his wife, John Inman and Sarah his wife, and John Whitley of the second part, Robert Blake of the third part, and Peter Cox of the fourth part, and by a common recovery suffered in pursuance of such deed, the estate was vested in John Inman and John Whitley in fee, on trust to sell and invest the purchase money on government or real securities, which securities were to be held in trust to apply the interest for the maintenance of George Inman the son for his life, and, after his decease, the trustees were to stand possessed thereof, in trust for Henry Inman and Sarah Inman, in equal parts or shares, or in trust for their respective executors, administrators or assigns, in case they, or either of them, should die in the lifetime of George.

The estate was sold, and the clear purchase money, amounting to 1050l. was paid to John Inman. Some time afterwards, an indenture, dated the 24th day of February 1802, and purporting to be made between George Inman the son of the one part, and John Inman and John Whitley of the other part, was executed by George Inman alone. That indenture, after reciting the deeds of 1st of January and 6th of November 1795, and that George Inman was desirous that the purchase money should be settled agreeably to the intention of his father, witnessed, that George Inman declared, that the purchase money of 1050l. should be vested in John Inman and John Whitley, on trust, to apply the income, or so much thereof as should be necessary for the support and maintenance of George for his life, and, after

his decease, to stand possessed of one moiety thereof for the benefit of Henry Inman, and of the other moiety to the use of such person as Sarah Inman should, by deed or will signed and published in the presence of three or more witnesses (and which will she was to have power to make), limit or appoint; and, in default of such direction, limitation or appointment, to the use of the said George Inman. And if the income arising from the 1050l. should be more than sufficient for the maintenance of George, the trustees were empowered to divide the surplus equally between Henry and Sarah.

On the 3d of September 1807, Sarah Inman, by her will of that date, and executed in the presence of three witnesses, and purporting to be made in execution of her power under the deed of the 24th of February 1802, appointed the interest of the principal sum belonging to her under that deed, to her husband John Inman for his life, and, after his death, she gave and appointed the principal sum so belonging to her to John Inman of Minehead, and she appointed her husband John Inman executor of her will.

Sarah Inman, having made this will, died in the year 1812, leaving her husband surviving her. He did not prove her will, but died in the year 1813, having first made his own will, whereby he appointed John Whitley and James Tucker executors, and they, having proved his will, became his legal personal representatives.

In the meantime, viz., in the year 1809, Henry Inman died, and Catherine Inman became his legal personal representative.

George Inman lived till the year 1838, and, supposing the several instruments to have been valid, John Whitley

1844.

INMAN

บ.

WHITLEY.

1844.

INMAN

v.

WHITLEY.

was surviving trustee, on trust to apply so much of the income as was required for the maintainance of George, and to pay any surplus to Catherine Inman as executrix of Henry, and to John Inman of Minehead, as legatee of Sarah, in equal shares, and, on trust, after the death of George, to divide the principal money equally between Catherine and John.

On the 15th April 1819, John Inman of Minehead, by indenture of that date, made between himself of the one part, and the Plaintiffs William Southcote Inman and Anna Victoria Little (then Anna Victoria Inman) of the other part, assigned to them as tenants in common, the moiety of the principal sum of 1050l. to which he was entitled under the will of Sarah Inman, and all surplus monies payable in respect of such moiety.

Mr. Whitley, the surviving trustee of the deed of 1802, died in the month of December 1831, and was represented in this suit by the Defendant Edward Whitley.

James Tucker, the surviving executor of the will of John Inman the husband of Sarah, having died, the Defendants John Inman Tucker, William Tucker, and John James, became the legal personal representatives of the same John Inman.

Upon the death of George Inman, in August 1838, the Plaintiffs claimed the benefit of the assignment of the 15th of April 1819, and this suit was the consequence of the claim being resisted by the legal personal representatives of John Inman.

The question in the cause was, whether this deed was binding on John Inman the husband: and it should be stated, in reference to this point, that John Inman was

the

the active trustee; that, previous to the execution of the deed of 1802, he alone had received the purchase money of the estate: that he retained it in his possession, and the amount was, after his death, paid out of his assets.

It appeared also that the deed of 1802 was prepared by John Whitley, the trustee and the solicitor of John Inman, that the costs of it were afterwards retained out of John Inman's estate, and that the deed of 1802 and the will of Mrs. Inman were found in the possession of John Whitley after his death.

Mr. Turner and Mr. Chapman, for the Plaintiffs. The circumstances shew that John Inman acquiesced in the arrangement of 1802, and all his interest in the fund became bound by the trusts of the deed.

Again, he was a trustee under the deed. He acted under the deed and accepted the trusts, and neither he nor his representatives can now repudiate them. It is no answer for a trustee to say that he has not executed the deed of trust; if he has acted under it, and shewn his acceptance, he is equally bound by the trusts.

There is also a question of election.

Mr. Kindersley and Mr. Freeling for the representatives of John Inman, insisted, that Sarah Inman had no power of disposing of her share in the fund by will; for at the date of the deed of 1802, she was a married woman, and incapable of altering her reversionary interest in a chose in action. (a) That the deed of 1802 was ineffectual, and not binding on her husband,

who

(a) Purdew v. Jackson, 1 Russ. 1.; and Honner v. Morton, 3 Russ.65.

1844.

INMAN

v.

WHITLEY.

1844.

INMAN

v.

WHITLEY.

who had not executed it. That, even if he had acquiesced in it, still it could not be obligatory on him, unless it were binding on all the other parties, for otherwise there would be no mutuality; yet it was plain that if the wife had survived her husband, the deed would have been wholly ineffectual as to her. That if she were not bound by the deed, her appointees, claiming under her, could not insist on its performance.

That the deed, on the face of it, shewed that the arrangement was wholly on the part of George Inman; and that there was no trace of any contract on the part of John Inman or of his wife.

Mr. William James for the representatives of John Whitley.

The deeds of January and November 1795 are admitted, and it is also admitted, that the deed of the 24th of February 1802 was executed by George Inman the son, and it appears that a will, to the effect stated, was executed by Sarah the wife of John Inman.

It is further admitted, that John Inman, during his life, principally managed the trust that the estate was sold that 1050l. was the amount of the clear purchase money, and that it was received by John Inman alone, who did not invest it, but that he made the payments to George Inman, and that, after his death, the amount was retained out of his assets by John Whitley, the other trustee, who was also one of his executors.