out, that the assets were such as to make it impracticable for the executors to obtain payment of the legacies. I cannot affirin either one or the other, either the proposition in the report that the executors might have obtained the legacies, or the proposition in the third exception, that they could not. The parties have, I think, on both sides properly considered that the other exceptions are not very material to be considered; but I have examined them, and I am of opinion that, except the fourth, they must all of them be overruled. I do not at present consider whether any hope can be entertained of obtaining further information upon further inquiry, or whether any of the parties may or may not be entitled to any further inquiry, if they desire it. Those questions may be considered on further directions; but I am of opinion that the evidence, as it stands, is not sufficient to support the finding as to the hops, which are the subject of the fourth exception; and, attending to the inquiries upon which the Master proceeded, to the directions given, and to the evidence obtained, I am of opinion that the Master was perfectly right, in the regard which he had to his former findings. He was well aware of the imperfect nature of the evidence on which those findings rested; and he has admitted evidence to prove them to be erroneous, and has either corrected them, or retained them, as upon the evidence appeared to him to be proper; and in this respect I think that he proceeded correctly, and has come to right conclusions. On this ground, I overrule all the exceptions from the 5th to the 12th, both of them included. Upon the evidence, I am of opinion, that the executors did leave the surviving partners in the undisturbed possession of the partnership property, and that they 1844. ROWLEY v. ADAMS 1844. ROWLEY บ. ADAMS. did so far consent to and encourage the business being carried on by the surviving partners, that although they did not take any active part in carrying on the trade, it may be properly said, the business was carried on by the surviving partners with their concurrence; and for these reasons, and because there was no direction to ascertain the state of the assets on the 1st of January 1825, I am of opinion that the thirteenth, fourteenth, fifteenth, and nineteenth exceptions must be disallowed. The findings of the Master upon subjects of the sixteenth, seventeenth, and eighteenth exceptions, appear to me to be in accordance with the evidence; and the exceptions must, for that reason, be overruled. I think that Mr. Coote was acting for the executors as well as for George Wyatt during the negotiation. The twentieth exception relates to the real estate, and was not argued. (a) (a) This exception was subsequently argued, and the further directions and costs disposed of; see post. An appeal to the House of Lords is however pending. REPORTS OF CASES ARGUED AND DETERMINED IN THE ROLLS COURT. TITLEY v. WOLSTENHOLME. THE to the question are as follows: Richard Titley, the testator, by his will 1844. July 1. 6. 8. A testator de vised real and tain trusts, which, as the] Court considered, the testator intended to be performed by his trustees personal and survivor, and by the heirs and as 1828, devised and bequeathed his real and "their signs, or by the executors or administrators, of the survivor. The will contained no power to appoint new trustees. The surviving trustee devised and bequeathed the trust estates and powers to A., B., and C., upon the trusts of the first will: Held, that this devise and the appointment of A., B., and C. as trustees, were valid. Where a trust estate is limited to several trustees, and the survivors and survivor of them, and the heirs of the survivor of them, the surviving trustee does not commit a breach of trust by not permitting the trust estate to descend, or by devising it to proper persons, on the trusts to which it was subject in the hands of the surviving trustee. Semble. 1844. TITLEY v. WOLSTEN HOLME. "their heirs, executors, administrators, and assigns," upon the trusts, &c. after mentioned. He then declared the trusts, which, on eleven several occasions, he expressed as being to be performed by "the said trustees, and the survivors and survivor of them, his or her heirs and assigns." The same persons were empowered to sell the residuary real estate, and to give receipts for the purchase money, and "the said trustees and executors, and the survivors and survivor of them," were to get in the personal estate. The "said trustees and the executors, and the survivor and survivors of them, his or her executors and administrators," were to apply the proceeds of the sale of the real estate directed to be sold, and of his personal estate, in payment of specified legacies to his children, and were to invest the residue in realty, and apply the rents as therein mentioned, and in the mean time to invest in the funds, &c. He declared, that "if it should appear to his said trustees, or the survivors or survivor of them, his or her heirs or assigns, that it would be advantageous to sell his estate at Gorton, or the estates to be purchased by the said trustees," by virtue of the powers thereinbefore given them, it should be lawful "for the said trustees, or the survivors or survivor" of them, to do so. There was a power of leasing to "his said trustees for the time being," and an indemnity clause to his "trustees and executors;" and the testator declared, that "the said trustees and executors, and each of them, their and each of their heirs, executors, administrators and assigns," might reimburse themselves their costs, &c. &c.; and he appointed his wife, Henry Burgess, Burgess, Robert Tebbutt, and his son Richard ex ecutors. The will contained no power to appoint new trustees. By the deaths of the other parties, Robert Tebbutt became the sole surviving executor and trustee. Robert Tebbutt, by his will dated in 1838, after disposing of his own real and personal estate, devised and bequeathed to Edward Titley, David Waddington, and Charles Wolstenholme, their heirs, executors, administrators, and assigns, all the trust estates, monies, and premises vested in him as surviving devisee in trust and executor of the will of Richard Titley, upon the trusts, &c. &c., expressed in the will of Richard Titley; and he appointed Wolstenholme, Crompton, Unwin, and Ollier, executors. This bill was filed by the cestuis que trust under the will of the original testator, praying a declaration that Robert Tebbutt was not authorized to appoint trustees, and that the devise and bequest of the trust estates by his will was invalid and ineffectual, and for the appointment of new trustees, and conveyance to them of the trust premises. Mr. Bacon for the Plaintiffs. The will of Titley gives no authority to the trustees to nominate new trustees; the devise of the trust estate is therefore invalid, and new trustees should be appointed under the authority of the Court. This case is governed by the decision in Cooke v. Crawford (a), in which case a testator devised his real estates to A., B., and C., in trust that (a) 15 Simons, 91. 1844. TITLEY v. WOLSTEN HOLME. |