1844. ROWLEY v. ADAMS. property and for the testator's estate, a sum sufficient for the payment of the legacies. To this report the Defendants, the executors, have filed twenty exceptions, of which the three first are admitted to be the most material. In these exceptions it is alleged, first, that the Master ought not to have certified, that on the decease of the testator Henry Wyatt there were sufficient assets of the partnership existing for the payment of the legacies of 12,000l. and 12,000l. Secondly, that he ought not to have certified, that 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 legacies, or might, with due diligence and without their wilful default, have secured, out of such property and for the testator's estate, a sum sufficient for payment of the said legacies. Thirdly, that he ought to have certified, that the executors could not, with due diligence and without their wilful default, have possessed themselves, out of the partnership property and for the testator's estate, of a sum sufficient to pay and satisfy the legacies. Henry Wyatt, the testator, had carried on business as a brewer on his own account. He had three sons Henry Earley, George, and William; and, having agreed to take Henry Earley into partnership for a fourth share, he executed a deed, dated the 9th of April 1817, and made between himself of the one part, and Henry Earley Wyatt of the other part. It was therein recited, that the father had proposed and agreed to take the son into partnership for the term of twenty-one years, and to give him (subject to a proviso after contained), a fourth part part or share of the plant, stock in trade, and effects of the business, except the stock of malt, ale, and beer, and the debts owing to the father up to the 1st of January then last; and further, that the said one fourth share had been estimated at the sum of 6000l. as the fourth part of 24,000, the balance due to the father from the trade, upon which sum, it was agreed, that the son should, out of his share of profit, allow to the father interest at the rate of 5 per cent. per annum. In the operative part of the deed, it 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 goodwill, 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 an num. On the 1st of January 1825, George Wyatt, the second son, was admitted a partner with Henry Wyatt, the father, and Henry Earley 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. 1844. ROWLEY v. ADAMS. 1844. ROWLEY v. ADAMS. The second article, which has given rise to much controversy in this case, was to the following effect:That the plant, utensils, implements, horses, drays, waggons, carts, live and dead stock, and other effects now belonging to and employed in the business which have been valued at the sum of 63,626l. 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 48,915l. 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 31291. 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 63,626l. 4s. 1d., and the said 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 63,626l. 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 Earley Wyatt interest, at 5 per cent., upon the several sums of 48,915l. 5s. 10d. and 3129l. 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 one fourth of George, Henry Wyatt was to have interest at 3 per cent. upon 15,909l. 1s. being the fourth part of the capital of 63,626l. 4s. 1d. No 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 and 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 63,6267. 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 52,0451. was made payable out of 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 63,6261., 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. 1844. ROWLEY V. ADAMS. 1844. ROWLEY v. ADAMS. The business was, however, carried on, as the parties 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 brewhouse, and of and in the plant, stock in trade, and all chattels used in carrying on the business, and of and in the goodwill 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 behalf of |