1844. May 25. 28. 31. .July 31. A. and B. purchased realty out of their partnership assets, which was used for their partnership purposes, and was, in equity, to be con sidered as per sonalty. A new partnership was formed between A., B., and was continued ship purposes, but 4. and B. stipulated for a rent to be ROWLEY v. ADAMS. THIS case, reported antè (a), now came on to be The MASTER of the ROLLS. This case came on to be heard on the twentieth of the exceptions taken to the Master's report, and for further directions and on costs. The Master has found, that the testator was entitled C. The realty to three fourth parts of a house and premises in Portto be used for pool Lane, which were not devised by his will, but the partnerwhich descended to Henry Earley Wyatt as heir at law, and the exception alleges, that there was no evidence to shew that the testator was entitled to three fourths of the house and property, or whether the same descended to Henry Earley Wyatt as his heir at law, or was to be considered as part of the partnership property, or as otherwise in equity, converted into personalty. paid them by the new partnership, composed of A., B. and C. 4. died. Held the property was, in equity, to be considered as part of his real estate. Legatees made bona fide endeavours to realize the The property was, in fact, purchased by Henry Wyatt and Henry Earley Wyatt out of their partnership assets, for their partnership purposes, and belonged to them in (a) Page 395. the primary fund on which legacies were charged, but failed to prove the existence of such primary fund, by reason of the non-production of the account books. The real estate (being the secondary fund) was directed to be sold for payment of the legacies, but the decree was made without prejudice to any claim which might be made in respect of the primary fund, in any other proceeding against any party who might be answerable for the same. July 31. the proportion in which they were interested in the 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 endeavoured to prove that such primary fund really existed, and on the supposition of its having had an existence, they have used endeavours, the sincerity of which cannot be doubted, to charge 1844. ROWLEY v. ADAMS. charge the executors personally with the loss of it. In these endeavours 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 Plaintiffs, I must make this decree 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 partner ship 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. ROWLEY v. ADAMS. ARCHER v. HUDSON. July 8. 11. A niece, two she came of months after N 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 age, and after her guardians seven years previous to her attaining twenty-one, she had fully ac resided counted 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 shew 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. 1844. ARCHER v. HUDSON. resided with her uncle and 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 145l. 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 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 books under date the |