him. He, however, never applied, but acquiesced in the possession of this estate by the equitable tenant for life, who has regularly paid the annuities: in that respect, at least, there has been no default on the part of the tenant for life. The Plaintiff has therefore been in possession from the death of the testator down to the present time: he has kept down the annuities; and he has done this with the acquiescence of the trustees. As I understand the case, all this has been done in accordance with the will, which directed the trustees either to pay the rents to, or permit the same to be received by the tenant for life. The trustees now desire to have the rents received in their own names, and to have possession of the title-deeds. In the course of this proceeding, I believe there has been some error on both sides. The Plaintiff, Mr. Denton, has desired and assumed to be, and to seem to the world to be, somewhat more independent of the trustees than the testator intended. In that respect, I think he has acted under considerable error. The trustees now desire to have this matter put on a different footing; but what has happened? There is no arrear of the annuities, but it is said that there has been a cutting down of timber. Now certainly, in my opinion, the Plaintiff has no right to cut down timber without the consent of the trustees; and I think also that he committed considerable error when he cut down his own timber and timber belonging to the estate, and mixed up the whole into one transaction. If he cut down timber on the settled estate for the performance of the duties attached to him as tenant for life, it was his duty to have preserved a distinct account and distinct evidence of the timber he so cut down, and of its application, because he was bound to account for it to the trustees. 1844. DENTON v. DENTON. The 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 endeavouring 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, not 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. THIS March 1, 2. 4, 5, 6, 7.9. May 9. Special directions given in a decree for an account, that if the Sir 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 63,600l., 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 monies 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 20,000, 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 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 1844. ROWLEY v. ADAMS. two legacies, seeking to charge the executors with wilful default in not having Sir William Follett (Solicitor-General), Mr. Kindersley and Mr. Russell, for the executors, and in support 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. Row obtained pay. ley, and Mr. and Mrs. Adams. ment of the legacies out of the surplus capital. By several decretal 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. 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 orders, ac- M back to the Master to enquire 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 enquire, 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 enquiries, 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 te tator 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, with due diligence and without their wilful default, have secured, out of such VOL. VII. Dd property 1844. ROWLEY v. ADAMS. |