1. 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. Rowley v. Adams.
2. A testator gave large legacies out of his "surplus capital." By the decree special accounts and inquiries were directed; but the Master was unable to take the accounts, by reason of the nonproduction of the books. found, however, on the imperfect. evidence before him, large sums due to the testator, and large partnership assets, which however varied in each of his three reports: he also found that the executors might, with due diligence, &c., have possessed themselves, out of the partnership property, of suf
ficient to pay the two legacies. The Court, however, was of opinion, that there was no reason for thinking that the testator's surplus capital could, if at all, have been realized without putting an end to the business, which the executors, under the circumstances, were not bound to do; that though the executors had not fully or properly performed their duty, still it was more a matter of conjecture than of proof what the assets and liabilities were; that the results were not accurate or approaching to accuracy, and that it had not been satisfactorily made out, either that there were partnership assets, out of which the legacies could have been recovered or secured, nor that the assets were such as to make it impracticable for 'the executors to obtain payment of the legacies. The Court, in this
state of things, declined to charge the executors. Rowley v. Adams. Page 395
against the tenant for life to re- cover the title deeds, and receive the rents. Denton v. Denton. Page 388
ACQUIESCENCE.
1. A feme covert was entitled to a reversionary interest in a sum of money vested in her husband and another as trustees. By deed, ex- pressed to be made between the tenant for life of the one part, and the trustees (including the husband) of the other part, the tenant for life, who alone executed the deed, declared that the trus- tees should hold the fund on cer- tain modified trusts, whereby the wife's reversionary interest was made subject to her power of ap- pointment by deed or will. The wife died, leaving her husband sur- viving, having appointed the re- versionary interest away from her husband. The husband afterwards died, and the reversionary interest subsequently came into posses- sion. The Court considered, that, under the circumstances, the hus- band ought to be deemed to have acquiesced in the arrangement, and accepted the trusts for the benefit of the wife's appointees; and held, that the appointees of the wife were entitled as against the representatives of the hus- band. Inman v. Whitley. 337 2. Trustees, after acquiescence, re- strained from legal proceedings
ADMINISTRATION SUIT.
1. A person at his death was member of a banking company established under the 7 G. 4. c. 46., and sub- ject to its liabilities. After the expiration of three years, a suit was instituted for the administra- tion of his estate, and the common decree was made for taking an account of his debts. Persons who were creditors of the banking company at the testator's death claimed before the Master. Held, that their claims did not come within the scope of the decree; secondly, that their claims were barred by the lapse of three years; and, thirdly, that the proper way of bringing their claims before the Court was by petition, and not by exception. Barker v. Buttress.
2. A residuary estate was divisible amongst several persons. An ac- count was made up, and the adults received their shares. The infants filed a bill for an account against the executors and the other resi- duary legatees. The latter being satisfied, deprecated the proceed- ings. The accounts turned out to be substantially correct: Held, that the costs were payable out of the Plaintiffs' share alone. Mac- kenzie v. Taylor. 467
Executors having, for about three years, paid interest on the Plain
demurrer. The Barnsley Canal Company v. Twibell.
See IRREGULARITY.
tiff's legacies, the Court, at the See BREACH OF TRUST, 2, 3.
first hearing, directed accounts, with a view of determining, from the state of the assets, the lia- bility of the executors to pay the legacies. The Court, on further 1. directions, refused to hold, that by payment of interest the exe- cutors had admitted assets, such a conclusion being wholly at vari- ance with all that had been pre- viously done in the suit. Rowley v. Adams. Page 395
VENDOR AND PURCHASER, 2, 3.
Under the 13th amended Order of 1828, the six weeks after the answer is to be deemed sufficient, within which a Plaintiff can obtain an order to amend, has reference to the answer to the original and not to an amended bill. The Guardians of Wimborne Union v. Masson. 309 2. After a full answer the Plaintiff amended. The Defendant answered the amended bill. Six weeks had expired from the time when the first, but not from the time when the second answer was to be deemed sufficient. Held, that any further application for leave to amend must be made to the Court, and not to the Master. The Guardians of Wimborne
Where a Plaintiff obtains an injunc-1. tion on affidavits, the Defendant is not wrong in meeting the case by affidavits on a motion to dis- solve, although the point might be determined shortly by filing a
2. A testator bequeathed an annuity of 500l. a year to his daughter for life, and directed an investment in the funds for securing it, and after her decease, he directed the "an- nuity" should go as his daughter should by will appoint, and in default, the "annuity" should be applied towards the maintenance of her children till twenty-one, and then the "principal sum" to the children, with a gift over" of the said principal sum of money:' Held, that the daughter had the power of appointing the principal Samuda v. Lousada.
3. The grantee of an annuity effected a policy on the life of the grantor, at his own expense. The grantor had a power of redemption on payment of 2500l., and it was provided, that in case the grantor should, "at the time of making such repurchase," by notice in writing elect to take the policy, the grantee would assign to him any policy "then vested" in him, which might be effected in re- spect of the annuity; but it was declared that it should not be in- cumbent on the grantor to keep on foot any policy. The policy became valuable, and the grantor gave the month's notice of re- purchase, and declared his elec- tion to take the policy. Held, that the grantee had no right afterwards to surrender the policy for his own profit; and, semble, that although he might have let the policy drop, yet he was not,
at any time, entitled to surrender it for his own profit. Hawkins v. Woodgate. Page 565
APPORTIONMENT.
Executors were directed to apply a competent part of the interest of a fund towards the maintenance and education of the testator's son, during his minority, and ac- cumulate the rest; and, after attaining twenty-one, to apply a moiety of the dividends for his support till he attained twenty- five, and to transfer the fund at twenty-five, with a gift over if he died between twenty-one and The son attained twenty-five. twenty-one between the periods of payment of the half yearly di- vidends. Held, that there should be no apportionment, and that he was entitled to the whole half- yearly dividend received after he came of age. Campbell v. Camp- bell.
A. B., an equitable mortgagee, lent the title deeds to C. D., the mort- gagor, to enable him to arrange a sale of the property. C. D. was indebted to A. B., both on the mortgage and on a trade account, C. D. paid to A. B. a part of the produce of the sale; but there was no evidence of his having
made any express appropriation of 2. Similar misconduct on the part of that payment. Held, that it must be understood that the payment was made on the mortgage ac- count, and that A. B. had no right to appropriate it to the trade ac- count. Young v. English. Page 10 | 3.
the person applying, will not pre- vent the Court setting aside the award, for the matter concerns the due administration of justice. Harvey v. Shelton. Page 455
A motion was made to dismiss a bill in pursuance of an award; it came on upon the last day, on which, under the statute, an ap- plication could be made to set aside the award. The respondent then made objections to the award, and the motion was ordered to stand over, with liberty for the respondent to give notice of mo- tion to dispute the award: Held, that this operated as an extension of the time.
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