COURT OF APPEAL.

COURT OF APPEAL.

COURT OF APPEAL.

fied those demands, and brought an action-at-law on the bond of indemnity against the executors of Lipscomb, who are the plaintiffs in this suit. The plaintiffs thereupon filed this bill to have the bond delivered up to be cancelled, and for an injunction to restrain the proceedings at law, insisting partly that Lipscomb was improperly induced by Currie to enter into the bond, and partly that Lipscomb and his estate have been discharged from all liability upon the bond by the conduct and dealings of Currie. The case was argued before the V. C. mainly on the first of these grounds; and his Honour dismissed the bill, being of opinion that the plaintiffs were not entitled to relief upon that ground. We have already stated that we concur in the opinion of the V. Č. that the plaintiffs have not established this part of their case. The question which we reserved for judgment, and which we have now to determine, is whether Lipscomb and his estate have been discharged from liability upon this bond by the conduct and dealings of Currie. In determining ques

tions

as

end of the term of five years, which expired, as I between them and Lipscomb and his estate, were at have said, on the 19th or 20th Aug. 1847; and from least in equity of right applicable, and ought at least that time accordingly their business of bankers was in equity to have been applied, by Messrs. Currie and continued under the same style and in the same Butterfield in paying off and discharging the liabilimanner as before, until they formally dissolved their ties (if any) of Mr. Lipscomb and his estate under the connection in business on the 3rd April 1849, from bond-was sufficient to pay off and discharge that which time, until the bankruptcy of Mr. Butterfield liability, if liability there was. All that I have said in July of the same year, he continued to carry on the has been also upon the supposition against the plainbusiness on his sole account. Now, at the termina- tiffs that they have not proved enough to show that tion by lapse of time in Aug. 1847 of the partnership Mr. Lipscomb was not in July 1847, equitably as well formed in 1842, it is quite clear there was joint estate as legally, bound by the terms of the condition anof that partnersip-I mean joint estate of a substan-nexed to the bond in dispute, according to the actual tial amount and value, comprising, and, perhaps, tenor of that condition. Our opinion to this effect chiefly consisting, of debts of a considerable amount was indeed expressed by my learned brother as well then due to it. This joint estate was at that time, of as by myself, before hearing Mr. Currie's counsel: it course, in the possession of the two parties, subject is not necessary to say whether subsequent reading only to the necessary qualification of the word "pos- and consideration have, so far as relates to myself, session" when applied to debts. Whether the part- strengthened or otherwise affected that impression; nership was then solvent or not solvent, whether Mr. for whether it was right or wrong, correct or incorrect, Butterfield was then solvent or not solvent, it must the litigation, as I conceive, ought and must be in be considered that Mr. Currie was then, at least, sol- all respects decided in the same way. Mr. Currie, in vent-nor probably has he ever been otherwise; but, June 1849, sent to Mr. Butterfield a lawyer's bill, to the continuing liabilities of sureif the partnership at that time was insolvent, it was amounting to 331. and a fraction-a bill chiefly and ties, the first point to be considered, as I appre not so avowedly, apparently, or visibly. There is not solely for the preparation of the bond and articles of hend, must be, what were the relative right the least reason to believe that in the year 1842, or at 1842. It was accompanied by a letter to him from and obligations of the party in whose favour, any time between that year and the dissolution in Mr. Currie, dated 16th June 1849, which was in these and of the party for whose benefit, the contract for Aug. 1849, the partnership for the time being pro- terms:-"Lincoln's-inn-fields, 16th June 1849,-Dear suretyship was entered into; for sureties, when they fessed or represented itself to be, or was considered by Butterfield,-In looking over our accounts, I see we contract their liabilities, must necessarily look to the world, insolvent; nor, in truth, upon the face of have a demand upon your bank, and I send you a those rights and obligations. They lie at the root of, their books and accounts was the partnership formed copy of it. Will you settle it? I shall be glad to and form the inducement and foundation of the conin 1842 otherwise than solvent at its termination in know how you have got on since our appearance in tract. When a man becomes surety for the debt of 1847. If, in any sense, or for any purpose, it was in the Gazette, and we ought to exchange letters of another, he looks to the power of the creditor to en truth then insolvent, it was, I apprehend, only so in mutual release. Yours faithfully, JAMES CURRIE." force payment from the debtor, and to the obligation respect and by reason that some of the debts then due My conclusion upon the whole matter is that Mr. upon the debtor to pay; and so in other cases. We sto it, whether then recoverable or not, have not been Currie, in writing this letter, and making he did must consider, therefore, in the first place, what were recovered. In this state of things, by means of the no demand under the bond before the bankruptcy of the rights and obligations of Currie and Butterfield arrangement already mentioned of 1847, all the joint July 1849, took a more accurate view of his position under the articles of partnership between them. It is estate of the partnership formed in 1842 which existed than when he brought the action which produced this not material, for the present purpose, what the rights at its termination in 1847 passed into and became the suit; and that the injunction against that action must and obligations were during the continuance of the property of the renewed partnership formed or com- be made perpetual, and the bond delivered up to the partnership; but it is most important to see how they menced in Aug. 1847, and was dealt with accordingly-plaintiffs to be cancelled, they neither receiving nor stood at the expiration. This partnership was for a the business, I repeat, having been carried on until the paying any costs of any part of the litigation from limited period of five years. The articles are silent early part of April 1849. It is said that this was only the beginning, but, if they have made a deposit, as to what was to be done at the expiration of the five for the purpose of winding-up the partnership formed taking it back. years, except so far as the sixteenth or seventeenthin 1842; but though I do not mean to impute insin- Lord Justice TURNER.-This case, though peculiar clauses extend; and it was argued, and I think justly, cerity to any person who has so asserted, I must say in its circumstances, does not appear to me to be open that those clauses do not reach beyond the ease of my opinion of the case is not so. The banking busi- to any very serious doubt, either as to the facts on one party desiring to retire from, and the other to ness appears on the evidence to have been carried on which it depends, or as to the law to be applied to continue, the business. But, assuming it to be so, from the 19th or 20th of Aug. 1847, until the final those facts. In the year 1833 Hylton Jolliffe and the does it not follow that the law steps in and supplies dissolution in 1849, just as it had been in the previous defendants Currie and Charles Cotton Butterfield the contract, and that the concern was to be wound. part of 1847 and earlier. All this, in my opinion, established a bank at Petersfield. They entered into up? I apprehend that it does. It was said, however, was unjustifiable as against Mr. Lipscomb, unless articles of partnership on the formation of the bank, that these sixteenth and seventeenth clauses, by pro upon the hypothesis of his liability under the bond and carried on the business, under those articles and viding for what was to be done if either desired to having ceased. But it is said that Mr. Lipscomb, other articles entered into in the year 1839, down to retire, show by implication that the business was to who lived hard by, knew of the banking business the 20th Aug. 1842. Butterfield was the managing continue if neither party so desired, and that Lipsbeing continued by Mr. Currie and Mr. Butterfield partner of the bank, and upon the formation of the comb, having been cognisant of the articles, must be after the 20th of Aug. 1847, and did not object partnership a bond was given by him, and by John bound by the inference thus to be deduced from them. to it. That may be or is so. It does not, how- Lipscomb as his surety, to indemnify the other But this argument goes much too far. The utmost exever, appear that he was aware of the terms, plan, partners against any misconduct on his part. The tent to which it can reasonably be carried seems to me or principles on which they were proceeding. He decision which we have already pronounced renders it to be that the articles left the parties at liberty-as inhad no right to object to their being bankers in part- unnecessary to examine the terms of this bond, or of deed they must in any event have been to agree that nership together after that day, and might well have the articles of partnership which I have mentioned. the business should be carried on. In the absence of supposed that Mr. Currie was either acting regularly On the 20th Aug. 1842 the partnership of Jolliffe, such an agreement, my clear opinion is, that this or rightly, or had no intention of making a claim Currie, and Butterfield was dissolved, and a new business ought to have been wound up at the expireagainst him upon the bond; and indeed, as I have said, partnership was formed between Currie and Butter- tion of the time limited by the articles for the dura no claim was in fact made before July 1849, although field. New articles of partnership were entered into tion of the partnership. Assuming, then, that the his death happened in October 1848. Mr. Currie, I between these two parties. They were dated the 20th partnership between Currie and Butterfield ought, in think, by thus acting, discharged Mr. Lipscomb in Aug. 1842, were made between Currie of the one part the absence of agreement between them, to have equity from the bond. But, assuming that, at the and Butterfield of the other, and contained (among been wound up at the expiration of the term limited time of his decease, he was not discharged, still I do other provisions which I do not think necessary in the by the articles, we have next to consider whether it not see how Mr. Currie's course of acting in April view I take of this case to mention) two clauses, was competent to Currie to agree to its continu 1849 can be justified against the executors; for neither which are the 16th and 17th clauses, in these terms. ance, without the consent of Lipscomb, and yet was the 16th or 17th clause of the articles acted upon [His Lordship here read the 16th and 17th clauses, to hold Lipscomb liable upon the bond. I am or attended to, and the joint estate, at that time not by which provisions were made for the case of of opinion that it was not. The position of prin inconsiderable, was left to the disposition or manage- one party desiring to retire from, and the other cipal and surety I take to be this. The surety has ment of Mr. Butterfield, who continued the business to continue the business.] Those are the only the right to satisfy the obligation by which he is in every sense alone. It has been argued for Mr. provisions in the articles to which I think it neces- bound, and, upon satisfying it, to stand in the place of Currie that the defence arising from his conduct after cary, in the view I have taken of this case, to refer the party to whom he is bound against the party for - July 1847 is available to the executors at law, if Upon the formation of this new partnership a joint and whose benefit he has incurred the obligation. Upon founded in truth and justice; but, if I were sure of several bond, of even date with the articles, was also the expiration of this partnership therefore, Lipscomb this, which I am not, I should still hold that there is given by Butterfield and Lipscomb as his surety to had the right, if he thought fit to do so, to satisfy the a jurisdiction here which ought, under the circum- Currie. My learned brother has already read that debts and liabilities of the partnership, and upon stances of this case, to be exercised by us. It has bond, and therefore I do not observe upon it further; satisfying them to stand in Currie's place as to the also been contended that the question of the discharge it was a general bond conditioned to indemnify Currie winding up the business. Upon Carrie being satisof Mr. Lipscomb, by reason of Mr. Currie's conduct against all losses whatever in respect of the partnership, fied, his rights in the assets of the partnership would after July 1847, independently of payment, has not and it recited the articles of partnership, and that its become the rights of Lipscomb. It would be for been raised by the bill, and is not cognisable in this intended duration was the term of five years. The Lipscomb and not for Currie to judge, in conjunction suit. That contention, however, I consider un- partnership between Currie and Butterfield expired with Butterfield, how the assets of the partnership founded; but, as it was possible that the scope of the by effluxion of time on the 20th Aug. 1847. The should be dealt with, and the debts due to it got is, bill might have been misapprehended, we thought it business of the bank was not then wound up, but what debtors should be sued, with which of them right during the hearing to offer Mr. Currie the op- was carried on (whether for the purpose of winding arrangements should be made, in what order and portunity of adducing further evidence, including an up is one of the questions in the cause) up to the 3rd course the debts and liabilities of the partnership oral examination of himself before us-of which op- April 1849, when it was dissolved by notice in the should be satisfied. Was it then competent to Currie, portunity his counsel declined to avail themselves, as Gazette. It does not appear that any arrangement as consistently with the existence of this right in Lisbelieving, no doubt, that all evidence in support of his to the assets or debts of the firm was made between comb, to agree with Butterfield, without the consent case, capable of being usefully resorted to, was already Currie or Lipscomb on the occasion of this dissolu- of Lipscomb that this business should be carried on? I before the court. I wish to add that, though all that tion. The business, however, was not then wound am of opinion that it was not. I have hitherto said has been upon the supposition of up; it was carried on by Butterfield alone until agreement must necessarily be to alter the state the plaintiff's failure and inability to establish a case some time in the month of July 1849, when he ab- both of the assets and liabilities of the partnership as of satisfaction of the bond by actual payment, I am sconded and became bankrupt. In the mean time they stood at the dissolution, and by so doing to alter very far indeed from being persuaded of that failure, and Lipscomb had died. He died in the month of Oct. the position of Lipscomb; and this, in my opinion, it of that inability, on the contrary, my impression from 1848; and the plaintiffs in this case are his execuwas not competent to Currie to do, and at the same the materials before the court, though I do not bind tors, After Butterfield had absconded demands were time to hold Lipscomb to his liability upon the bond. myself upon the point, is that the amount of the sums made upon Currie, in ? of debts or liabilities of It was attempted to meet this view of the case by received after the 20th Aug. 1847 by Messrs, Currie the partnership of terfield which were alleging that the partnership was continued only for Whether the and Butterfield, in their capacity of copartners in the contracted or s continuance of the purpose of being wound up. respective copartnerships of 1842 and 1847-which, as ❘ that partnerst 1847. He satis-right of Currie against Lipscomb upon the bond

The effect of such

COURT OF APPEAL.

would have been removed if this had been really the case is a point upon which I give no opinion whatever. It does not appear to me that the facts of this case warrant that question being raised, for I see no trace whatever of any steps having been taken to wind up this partnership; on the contrary, I am satisfied that the business was carried on after the expiration of the partnership, just in the same manner as it had been carried on during its continuance, and without any attempt to wind it up, in the proper sense attaching to that expression. That it may have been in the course of winding up in this sense, that the moneys received from the customers were placed to their account, and so operated to discharge the debts which were due from them, is possible and this, I presume is what is meant by Mr. Currie's answer; but this was clearly not such a winding up as he or Lipscomb, standing in his place, had the right to insist on. Even supposing, however, that it was, the partnership was not finally wound up at the period when the dissolution took place in April 1849; and yet upon that dissolution all the assets of the partnership were permitted by Currie to pass into the hands of Butterfield, and the business is continued by him as before. How can this be justified as against Lipscomb, the surety? It is said, however, Lipscomb acquiesced; but acquiescence imports knowledge, and there is nothing to show that Lipscomb did at all know the terms on which the business was carried on. I am of opinion, therefore, that the plaintiffs are entitled to be relieved from this bond, and that the decree must be altered by directing the bond to be delivered up to be cancelled, and awarding a perpetual injunction to restrain proceedings upon it. I think that the deposit should be returned, and that there should be no costs of any part of the suit, either on the one side or the other. Both Currie and Lipscomb were engaged in a transaction which neither of them ought to have entered upon, and which no court of justice can countenance, and the plaintiffs have failed as to part of the case which they have brought for

ward.

After some discussion, their Lordships directed that the bond should be deposited with the registrar, and granted a perpetual injunction against its being put in suit against the representatives of Lipscomb.

Reported by C. H. KEENE, Esq., of Lincoln's-inn,
Barrister-at-Law.

Monday, May 8.

Be THE TRUSTEE RELIEF ACT, AND Re THE TRUSTS

OF THE WILL OF PETER THOMPSON, DECEASED.
Will-Construction - Clause of substitution –
-"Said
children."
A testator having given a sum of stock to trustees upon
trust for E., one of his children for life, with remain
der to E.'s children, share and share alike, gave the
same in default of children of E., living at her death,
to "all and every my children then living, and the
child or children of such of my said children as shall
be then dead, in equal shares and proportions; but so
that such my grandchildren shall only be entitled
among them to such share or shares as their parent or
parents would have been entitled to in case they had
been living:"

Held, that, upon the death of E. without issue, the chil-
dren of a child of the testator, who had died before
the will was made, took no interest under the gift.
This was an appeal from a decree of Wood, V. C.
The question arose on the construction of the will
Mr. Peter Thompson. The will, so far as is
material, was as follows:

"I give and bequeath unto my dear wife N. and my
as P. and E.,my executors hereinafter named, the sum
15,000% Reduced Three per Cent. Bank Annuities,
art of the Stock now standing in my name in the
nk books, upon trust to pay the annual dividends
d proceeds thereof, from time to time as the same
all become due unto my daughter Elizabeth, the
fe of Thomas Sutton, for and during the term of
natural life, or until she shall assign, incumber,
anticipate the same, to and for her own sole and
parate use and benefit; and I do declare that the
me dividends and proceeds shall not be liable to the
ts, control, or engagements of her present or any
ure husband, and shall not be sold or assigned,
umbered or anticipated, by her my said daughter;
that the receipt or receipts of my said daughter
zabeth alone shall be a good and sufficient dis-
rge for so much of such dividends and proceeds as
ll be therein acknowledged to be received; and
and after the decease of my said daughter Eliza-
, or in case she shall assign, &c., upon trust to
apply, assign, and transfer the said sum of
004. unto and amongst all and every the children
ny said daughter Elizabeth, to be equally divided
ween them; if more than one, share and share
e; and if but one such child, then to such only
d the parts and shares of the said children in the
e to be payable and transferable to such child or
dren at their respective ages of twenty-one
And I do hereby declare that, if any such
dren shall die under the age of twenty-one years,
the share of him, her, or them so dying shall go
e survivor or survivors of them, at such time as
ber, or their respective original share or shares

COURT OF APPEAL.

shall become payable. And my will is that all and
every such surviving or accruing share or shares so
directed to survive shall also from time to time
survive in
the same manner as the original
shares, until the several shares shall become pay-
able. And upon further trust after the decease
of my said daughter Elizabeth to pay and apply the
dividends and produce of the said Bank Annuities for
and towards the education and maintenance of her
child or children in such manner and proportions as
my said trustees shall think proper, until such time
as the respective shares shall become payable; and
in case there shall be no child or children of my said
daughter Elizabeth living at the time of her decease,
or of any sale, assignment, or incumbrance or antici-
pation by her, or, being any, they shall all die under
the age of twenty-one years, then I give and bequeath
the said sum of 15,000% unto all and every my children
then living, and the child or children of such of my said
children as shall be then dead, in equal shares and
proportions; but so that such my grandchildren shall
only have and be entitled among them to such
share or shares as their parent or parents would
respectively have been entitled to in case they had
been then living. I give and bequeath unto my
said wife and two sons, P. and E. a further sum of
15,000l. like Three per Cent. Reduced Bank Annuities
upon and for the same trusts, intents, and purposes,
and subject to the like restrictions and limitations in
favour and for the benefit of my daughter Anne
Creswell and her issue; and, in default of issue, for
the benefit of my children and their issue, as are here-
inbefore mentioned, expressed, and declared of and
concerning the said sum of 15,000l. Three per Cent.
Reduced Annuities, bequeathed for the benefit of my
daughter Elizabeth, and her issue; and, in default of
issue, in favour of my other children and their issue,
or as near thereto as the deaths of persons and other
circumstances will admit. I give and bequeath unto
my said wife and sons P. and E. the further sum of
10,000l. like Three per Cent. Reduced Bank Annuities,
other part of the Stock standing in my name in the
Bank books upon and for the same trusts, intents,
and purposes, and subject to the like restric-
tions and limitations in favour and for the
benefit of my daughter Griscilla Ann Rachel
Metcalf and her issue, and, in default of issue,
for the benefit of my children and their issue,
as are herein before expressed and declared, of and
concerning the said sum of 15,000l. Three per Cent.
Reduced Annuities, bequeathed for the benefit of my
daughter Elizabeth and her issue, and, in default of
issue, in favour of my other children and their issue,
or as near thereto as the deaths of persons and other
circumstances will admit."

At the date of the will there were five children of

the testator living, viz., Peter, Edward, Elizabeth,
Anne Tracy (then Anne Creswell), and Mrs. Metcalf,
all of whom survived him. The testator had also had
three children besides the above, who had died before
the making of his will, two of them in infancy and
unmarried, and the third, Mary Ann Tunstall, leaving
issue three children, of whom one was resident in the
United States, and the other two were the present
petitioners. Mrs. Metcalf died in April 1853, without
ever having had any issue. On the 7th Dec. 1853
Mrs. Thompson (the testator's widow) and P. and
E. Thompson transferred into the name of the Ac-
countant-General, in the matter of the above trust,
20001. Three per Cent. Reduced Annuities, being the
one-fifth part of the 10,0007. bequeathed for the benefit
of Mrs. Metcalf. This sum of 20007. was claimed by
the petitioners, the children of Mary Ann Tunstall,
the testator's daughter, who had died before the date

of the will.

WOOD, V. C., in his judgment said: "In this case there are two classes of authority which have settled, to a certain extent the construction to be put upon wills of this description. The one class is that of Christopherson v. Naylor, 1 Mer. 320, and Butler v. Ommaney, 4 Russ. 70, which established this proposition, that, if there were a gift to children living at a definite time-either the death of a tenant for life, or any other time-and a substituted gift to the issue of any child who should die, all the children who were living at the date of the will were to be taken into account, whether they died in the testator's lifetime or afterwards; and that the substitution took place in favour of all the grandchildren who were alive at the date of the will. No other children would be let in; so that any issue of a child who was dead at the date of the will would be excluded. The other-that of Tytherleigh v. Harbin, 6 Sim. 329-that, if there were a gift to children living at a given epoch, and to the children of such children as should be then dead, with a proviso that no grandchildren should take any share except such as his parents would have taken if living, that proviso (notwithstanding the fact that the children who were dead at the date of the will would take no share at all) would have the effect of letting in the grandchildren-whether they were the issue of children who were alive at the date of the will or of children predeceased; and I presume the reason of that decision to be that there is a clear gift in the first clause to the parties who are then to take, and which is not to be abrogated by a subsequent clause, of itself too obscure to do away with the effect of a

COURT OF APPEAL.

"At that

clear and distinct gift. The V. C. of England confirmed that case; he said that a clause of substitution was not meant for the simple purpose of substitution only, but that the parties who would take per capita under the original gift were to take per stirpes. There was a clear gift in the first part of the bequest, and his Honour would not, on any conjecture which might be framed on the form of that subsequent proviso, let in different parties than those who would be entitled under the original gift. That reasoning has been followed by Lord Langdale, M.R. and Wigram, V.C.; and Waugh v. Waugh, 2 M. & K. 41, would not now be decided in the same way unless the decision were rested on the circumstances of there being a particular gift to one child. Then comes the question, How am I to decide this point? I have first to consider whether there is a clear gift to the grandchildren. If it were not for this word "said" the case would be on all fours with those cases that I have mentioned; but it certainly creates considerable difficulty. That word is here introduced in such a manner that I could not strike it out, unless it were absolutely essential that it should be done. It would seem to refer to the children who were the objects of the gift in the previous part of the will; although not strictly appropriate to them under the class of " my children then living." I should have read it “I give to all and every my children then living." Stopping there, it must mean the children that would be alive at the death of the tenant for life, and who were in existence at the date of the will according to Smith v. Smith, 8 Sim. 353, which overruled Thornhill v. Thornhill, 4 Madd. 377. The testator in that gift clearly had in his mind those children who were living when he made the gift, and no others. He says, "I give and bequeath the said sum of 15,000l. &c. unto all and every my children then living, and the child or children of such of my said children as shall then be dead, in equal shares and proportions." It is here insisted that "said children" cannot apply to the whole description "unto all and every my children then living:" I think I may come to a legitimate conclusion, by saying that it applies "to children," the whole gift speaking beforehand "of a class." The testator might have said, "who may be living or dead at that time I know not-but I give it to all my living children." particular period some may be living, others may be dead." If he had said "to all my children provided they be then living, and the child or children of such of my said children as shall be then dead," there would have been no doubt, or if he had given it to "all my children," with the condition that they should be then living, then "my said children" would be "all my children," wholly detached from the question of conditionbeing all my children then alive. Here he has appended a condition and a description, which make the difficulty, but not such an one as to prevent my giving to them a sensible meaning. It is extending the difficulty to say that the word "said " is to have more effect than the word "them." In Tytherleigh v. Harbin, it was "the issue of such of them as shall then be dead; " and so in Gaskell v. Holmes, 3 Hare, 438. Having this impression of what I might have done about that word "said," except for those two cases, I should then have to look at the other parts of the will, and to consider all of it together, with this word "said," and with this proviso in its substitutional form with reference to the will in a subsequent part. The reason the court gave no weight to the proviso was this: it said although the proviso may be applicable in some cases, it is not applicable or of sufficient force to defeat the effect of a clear, distinct, and positive gift in the first instance. Here I have a clause of some obscurity with no clear gift in the first instance; and I have to consider the effect of the subsequent proviso with reference to interpretation. That subsequent proviso clearly points to a substitution, except, it had been, that there had been some clear gift. It points to the substitution of parties who are to take the shares the parents would have taken if they had been alive. Then the referential bequest afterwards is this: he gives the sum of 15,000l. for the benefit of his daughter, Ann Creswell, "and her issue, and in default of issue, for the benefit of my children and their issue." Now, it was contended that it did not confine it to the death of the tenant for life; but it was general gift to all the children and their issue, which might have included even Ann Creswell herself. The words "upon and for the same trusts and purposes, and subject to the like restriction and limitation," "for the benefit of all those parties as are mentioned in my previous bequest with regard to other parties," would be sufficiently referential to show that it meant a series of limitations being made identical with previous limitations, and therefore would point to those living at the death of the tenant for life. Now what are the previous limitations? It is, perhaps, the best to expound his views by his own description afterwards. He says "I have, in default of issue of Elizabeth, made a bequest in favour of my other children and their issue;" that is, his other children and the issue of those other children to whom he has given something. Certainly in a previons part

а

V. C. KINDERSLEY'S COURT.

9th June 1842, after devising all his freehold, copyhold, and leasehold messuages, tenements, and hereditaments, gave all the residue of his personal estate and effects whatsoever to his wife Mary and his sons T. H. Day, J. Day, and the Rev. J. D. Day, their executors, administrators, and assigns, upon trust to pay the annual proceeds thereof to his wife for her life, and after her decease upon trust to sell and convert into mouey his said estates, and to stand possessed of the proceeds thereof upon trust, as to one seventh part, to lay out and invest the same in a government annuity for the life of his son C. Day; and upon further trust to pay such annuity when and as the same should become payable, not by anticipation, to his said son C. Day for his life for his own use; But he declared that in case his son C. Day should have assigned, incumbered, or in any manner disposed of or anticipated, or should at any time or times thereafter assign, incumber, or in any manner dispose for anticipate, the said annuity so to be purchased as aforesaid or any part thereof; or in case his said son C. D. should at any time or times thereafter, either before or after the testator's death, become bankrupt, or take the benefit of any Act for the reef of insolvent debtors, or do or cause to be done any other act which could, should, or might affect or incumber the said annuity, then and in any or either of the said cases he declared and directed that his trates for the time being should hold or stand possessed of the said annuity, upon trust for his three Sous T. H. Day, J. Day, and the Rev. J. D. Day, for their own use and benefit; and he then gave the remaining six sevenths amongst his other children, and the children of such of them as should be deDeased. The testator died, leaving his widow, his ses C. Day, T. H. Day, J. Day, and the Rev. J. D. Day and other children him surviving. C. Day died in 1841, without having committed any of the acts specified in the testator's will. The widow died in Jan. 1852; and the question in this case was who, der the above-mentioned bequest, was entitled to the share of C. Day. It was claimed by T. H. Day, J. Day, and the Rev. J. D. Day, as the three sons to whom it was given over, in the event of any such act al above stated being done by C. Day; by the other chikiren of the testator to whom the remaining sixsevenths were given; by the representative of C. Day himself; and by the next of kin of the testator. Becir, for the three other sons of the testator, T. H. Day, J. Day, and the Rev. J. D. Day. foodhouse, for the children entitled to the six Avenths.

Hobhouse, for the personal representative of C. Day.

Smythe, for the next of kin of the testator. The following authorities were cited in the course of the argument:—Bayley v. Bishop, 9 Ves. jun, 6; Yates T. Compton, 2 P. Wins. 309; Barnes v Rowley, 3 Ves, 35; Dawson v. Killet, 1 Bro. C. C. 119; Palmer v. Crawford, 3 Swanst. 482.

To over.

The VICE-CHANCELLOR.-This is quite a new case; and, as I believe there is no authority directly applicable, I must, to the best of my judgment, dede it upon the principles which seem to me to be stablished by the cases. The testator, after giving his residuary real and personal estate to trustees, and recting the income to be paid to his wife Mary, for her life, directed that after her decease the whole of the property should be converted, and divided into sevenths; of which six are so given as to be vested interests in the legatees thereof (about which it is not material to consider) and one seventh is directed to be invested in a government annuity for the life of C. Day. So far, there was no gift to him; but then there is a clause (similar to those used in reference to the previous gifts of the six sevenths) that in case C. Day should have assigned, &c. [his Honour read the declaration above stated, then it was to be in trust for three other of the testator's sons. C. Day survived the testator, but died in the lifetime of the tenant for life, without having ever done any of those acts, on the doing of which the testator La declared his intention that the annuity should The tenant for life is now dead; and, hat one-seventh which belonged to C. Day' being be disposed of, the question is, to whom is it to ? Four classes of persons claim it-First, the hree sons of the testator, to whom it is given over, the event of C. Day doing any of those particular cts specified; but, as C. Day has not done any of hem, and as the doing of them was alone made the round on which the other three sons were to take the hare of C. Day, I am of opinion that their claim is xcluded. Secondly, the legatees of the other sixevenths. Now, it by no means follows that because here is a failure of a gift of one-seventh, the legatees f the other six-sevenths are to take each a sixth of hat which has failed. Though a gift fails, and is unsposed of, it never can go to increase the shares of hose to whom a particular amount only is given-as, this case, one-seventh to each, or six-sevenths ogether. Thirdly, the representative of C. Day imself. And, fourthly, the next of kin of the testator, ho, of course, if the gift to C. Day did not take fect, are entitled to his share. Between the ghts of these two latter claimants I have to deeBayley v. Bishop, which was admitted in the

V. C. KINDERSLEY'S COURT.

period when such laying out takes place. I am of opinion, therefore, that this gift took effect, notwithstanding that C. Day died in the lifetime of the tenant for life; and, inasmuch as he died without having been bankrupt or insolvent, and without hoving assigned his interest, or in any way done such an act as that specified as the one upon which the gift over was to take effect, his representatives are entitled to the one-seventh now in question. As to the costs, I think all parties ought to have them out of this share.

June 26 and 27. TOMSON V. JUDGE. Practice-Motion after evidence taken and publication passed, under Chancery Practice Amendment Act, 8. 53-Ecclesiastical Court-Jurisdiction. Where the plaintiff filed a bill charging the exercise of undue influence by a solicitor upon a testator in obtaining a bequest to himself; tendered issue on that point; went into evidence upon it, and proceeded with the cause so far as the publication of the evidence, and setting it down for hearing; but then moved to amend his original bill or file a supplemenial statement under the new practice, showing that the testator never made the bequest, and executed the will not knowing such a gift was contained in it:

Held, that as such proposed amendment contradicted the original statement in the bill, and really involved the question whether the will was or was not the will of the testator (which the Ecclesiastical Court could alone decide), the motion was refused with costs.

V. C. KINDERSLEY'S COURT. argument to be most in point, established that when there was a gift of a certain sum (whether a share of residue or not is immaterial) to trustees, upon trust to pay the income to a tenant for life, and after his death to lay out the same (as here) in the purchase of an annuity for the life of A.B., coupled with a direction to pay it to A. B. during his life, A.B., if he survived the tenant for life, had a right to say, "Do not lay out the money, but give me the money itself;" and even more-that if the annuitant died in the lifetime of the tenant for life, his representative had a right to ask for the fund out of the assets of the testator in specie. This principle is therefore clear, that, in such a case, notwithstanding the direction to lay out the sum in the puchase of an annuity for the life of the party, and notwithstanding that there is no gift of the sum itself, but only a direction to pay the annuity purchased with it, there is a vested interest in the party to whom it is so directed to be paid; and he, if he survives the tenant for life, or his representative, if he dies first, is entitled. It is the same as a gift of 5007. to A. B. on the death of a tenant for life, which is a vested interest in A. B. If this case rested here, there would be no difficulty; but the testator, mistrusting, I suppose, the prudence of his son C. Day, not only directs the purchase for him of an annuity for his life, but that it shall be paid to him only as it becomes payable, and not by anticipation; and in so doing, expresses, I think, his clear intention, irrespective of the gift over. Without immediately adverting to that gift over, one question is, whether the expression of that intention differs this case from what it would have This was a motion for leave either to amend a bill been without it. Assuming it was for C. Day's or file a supplemental statement under the 15 & 16 own personal use, does that vary the principle of Vict. c. 86, s. 53, after the examination and crossthis case from that to which I have referred? examination of the defendant and other witnesses in Suppose C. Day had survived the tenant for life, and the cause, and after publication passed, and the setting the annuity had been bought, might he not have asdown of the cause for hearing. The testator in the signed it the next day? and would not that assign-suit, by his will dated the 22nd July 1851, devised ment by him give a purchaser an absolute title? certain real estates to C. P. Judge (the father of the I apprehend it would. It is true, in the case of a defendant), charged with 10007., and gave various female, a clause of anticipation may be superadded; legacies and annuities to other persons; he then but the law knows it not in the case of a male. He created a trust for the payment of the annuities, and has a right to assign and make out a good title to his bequeathed, inter alia, his three pictures, printed and interest, even before it falls into possession. If, other books, maps, plans, and pictures, and every other then, there had been no gift over in the event of C. article in certain rooms in his house, to Thomas Day assigning or incumbering the annuity, I am of Gulliver Judge absolutely, with a gift of all his plate opinion that, even if the expression of intention that to Emma Rose and the plaintiff Rebecca Tomson, there should be no assignment had amounted to an who was also made residuary legatee; and he apabsolute prohibition, it would not have taken this pointed Thomas Gulliver Judge his executor and case out of the authority of Bayley v. Bishop. It trustee. remains, then, for me now to consider the effect of the gift over, even in the event of an insolvency or bankruptcy. The testator contemplated that C. Day might become bankrupt or insolvent even in his (the testator's) lifetime; such an event would have made the seventh share of C. Day, or the annuity to be bought with it, to pass to his assignees; and in that event the testator intended the share of C. Day to go to his other three sons. It appears to me that, within the same period, the testator contemplated the possibility of an assignment by C. Day; and, beyond all doubt, a man may execute a deed by which he means to assign over to another, in consideration of a sum of money, all the benefit to be derived under a will (whether such a deed is valid or not it is immaterial to discuss), or he may do some other act besides becoming bankrupt in the lifetime of the testator and tenant for life, the effect of which will be to take the property away from himself, and vest it in others claiming under him; and therefore the testator in this instance introduced a declaration that, in case C. Day should have assigned, &c., his share, or the annuity to be purchased with it, should go over. It was suggested that, if in the testator's lifetime, or after his death in the lifetime of the tenant for life, C. Day had become bankrupt, the three sons would have been entitled to say, "Give us, in the specified event which has happened, the share of C. Day." I think not; for the testator has expressed in terms that, if C. Day, before he knew that anything had been given to him, became a bankrupt, the gift was to go over; and then the three other sons would have been entitled to an absolute vested interest, but only on the death of the tenant for life. What, then, do C. Day's representatives take, after the death of the testator? How does this limitation determine C. Day's right to his oneseventh? On the death of the tenant for life it was given to be laid out by the trustees in the purchase of a government annuity for the life of C. Day, to be paid to him. If there had been nothing more, that was a vested interest in the event of his surviving the tenant for life; and the limitation over in the event of his doing the act specified would operate equally before or after the death of the tenant for life, unless, indeed, it could be said that the clause against anticipation and the gift over in the event specified amounts to an express condition that the gift is not to take effect at all, unless the donee survive the tenant for life. But I do not think I can consider the terms of the bequest as expressing any necessity for preserving the share for the personal benefit of C. Day. The gift over affects the principle upon which the courts have determined that a direction to lay out money in the purchase of an annuity, makes it imperative for the party to survive the

The bill stated that C. P. Judge was the testator's farm-bailiff, and T. G. Judge, his son, was a solicitor, who had become intimate with, and had acquired considerable influence over, the testator; by means of which influence the testator had been induced to make his will containing the devises and bequests aforesaid in favour of C. P. Judge and his son. The bill charged that certain property had been conveyed by the testator to T. G. Judge on inadequate consideration; and that he (T. G. Judge) had improperly appropriated some of the articles in the library. This suit was instituted by the plaintiff for an administration of the testator's estates. The cause had proceeded so far as the publication of the evidence taken on both sides, which was very lengthy, and setting the cause down for hearing-when the plaintiff moved for leave to amend her bill, notwithstanding the cause was ready for hearing; or to file a supplemental statement of facts under the new practice: the object of such statement being to show that the will was not read over to the testator before he signed it; that his signature to it was fraudulently procured by T. G. Judge; and that he (the testator) signed the will in ignorance that it contained any gift for the benefit of the defendant T. G. Judge.

Bazalgette, for the motion. This was merely an application for leave to try the issue raised between the parties, not for a decision upon it; and so the court might allow the bill to be amended, or a supplemental statement to be filed, as asked : (Hindson v. Weatherill, 18 Jur. 499.)

Glasse, Q. C., opposed the motion. The proposed amendment or supplemental statement related to the execution of the testator's will, and, in reality, involved the question whether that will was a will or not a point which the Ecclesiastical Court alone

could determine.

M. A. Shee, with him.-The motion was irregular; in fact, the plaintiff thereby displaced her own case, and put herself out of court. Either the will was the testator's or it was not; if it was, the plaintiff now really sought to upset it; if it was not, she had no right to be before the court at all. But, in reality, the evidence which they had been forced to wring from the opposite side clearly showed that the testator well knew the contents of the will, and executed it deliberately: (Kennell v. Abbott, 4 Ves. jun. 802.) Bazalgette, in reply.

The VICE-CHANCELLOR.-The plaintiff by her bill states that the testator made his will, by which, after various other bequests, he gave to the defendant, Thomas Gulliver Judge, certain pictures, books, and other articles in two rooms in his house, describing them; and the bill then alleges that for many years before the death of the testator Judge (the defendant) had obtained great influence over him-that he

drew up his will, was present at the execution of it, queathed all his residuary real and personal estate to
and, by means of such influence, induced him to his brother Samuel Marryatt, and Thomas Wilson,
make the devises and bequests contained in the will upon trust to sell the same, and invest the proceeds
in his favour, and appointed him executor. The arising from such sale in government or other se-
issue tendered by the bill then is this: "that the tes-curities, and to stand possessed thereof when so in-
tator knew of the bequests he was making; but was vested upon certain trusts (after payment of his
induced to make them through the influence which debts) as to both capital and income for the benefit
the defendant Judge, as his solicitor, exercised over of his wife and children, as therein mentioned. And
him." That issue was accepted by the defendant; the testator directed that a certain sum (being the
witnesses were examined on both sides; publication said 10,000l. cash) should be set apart for the carrying
was passed; the cause was set down to be heard, and on of his business after his death by two of his sons,
was ready for hearing in all respects. The plaintiff to whom he gave an option of resorting to the capital
then makes an application to this effect: she asks for of such sum (if necessary) for that purpose, any sur-
liberty, either by amendment of her bill, or by filing plus of the money so received by them to be repaid
a supplemental statement of facts, under the new to his executors; and he nominated the said Samuel
practice, to bring forward this case-namely, "that, Marryatt and Thomas Wilson to that office. The
so far from there having been any undue influence testator died, leaving his wife and six children him
used to induce the testator to make these devises and surviving. There were no debts. His trustees duly
bequests, he never had made them at all; for the be- sold part of the property; invested a portion of the
quest in favour of the defendant Judge was fraudu- produce of such sale in government stock (being the
lently inserted in the will without the knowledge of aforesaid sums of 2000l. and 28001.); and entered into
the testator; that when the testator executed his will negotiations for a sale of other parts of the property.
he was not aware it contained those gifts." That is One of the six children died, having appointed the
the issue now tendered for acceptance. Having regard, plaintiff his executor. New trustees were appointed
then, to the issue first raised by the plaintiff, it is a of the testator's will, after which the plaintiff filed
very serious question whether the court will now per- his bill for an administration of the testator's estate
mit the plaintiff, not to introduce new facts in sup- against them, and one only of the other cestuis que
port of an allegation contained in his bill, but to trust. All the proper parties, however, had been duly
strike out some statement in it, and insert others served with a copy of the bill; but the trustees only
directly contradicting the original ones. The plain- were served with a notice of this motion. The trust
tiff, in effect, says this: "Although we have gone property had been duly assigned by the old to the
into evidence upon the proposition at first agreed on new trustees; and these latter had admitted by their
as the question between us, I now want, after all that answer that they had the above-mentioned two sums
has been done, to present to the court a totally of stock standing in their names, and the sums of
different issue;" and it was said, the necessity cash in their hands. The plaintiff now moved for
for this arose from the discrepancy between the the transfer and payment into court of the sums of
evidence taken and the original statements. Now, stock and cash respectively, on the ground that they
supposing for a moment there really was no were part of the testator's estate, so admitted by the
undue influence, as the plaintiff now wishes to trustees to be in their hands, outstanding pendente lite.
allege. What then, if permitted to do so, would be Bailey, Q.C. (Batten with him), for the motion, ar-
the real object of the bill? Would it not be to induce gued that a mere contingent interest in stock, which
the court to declare that that which now is a clause formed part of trust funds to be administered in a
in the testator's will, is not his will-is no part of it? suit, was sufficient to entitle a party so interested to
in other words, that that which the Ecclesiastical have them paid into court. The trustees admitted
Court has said is the testator's will, is not his will? they were outstanding in their hands; and service of
The effect of probate granted by the Ecclesiastical notice of motion on them alone was correct, as all
Court is to preclude this and all other courts of law proper parties had received copies of the bill: (Bartlett
and equity from saying that any writing so admitted v. Bartlett, 4 Hare, 631,)
to be proved is or is not the will of a testator. There
may be cases in which, consistently with this ques-
tion, this court may construe a document, and hold
that a trust attaches; but then it must do so subject
to this, that it cannot decide whether that document
either is or is not a will. The object, then, of this appli-
cation is to induce the court to exercise a jurisdiction
it does not, and I hope never will, possess. But then
it was said that the proposed amendments appear to
be true and essential to be stated, in consequence
of the evidence. I must say I think there is
no sufficient ground for such an assertion. It
may be that Judge, as the solicitor, did obtain
the benefit of a bequest in his own favour; but
that is a point not now to be determined. I am
not now called upon to decide whether there was or
was not sufficient evidence of such a fact; all I have
to consider is, whether there was reasonable ground
to conclude that the testator did not know of the
bequest he was making. I must say, the evidence
generally does not establish such an inference. There
is nothing in it to show that the will was or was not
read over to the testator before he signed it; and I
confess, as to his knowledge of its contents, it seems
to me unless a man reads a document out loud, or is
seen to turn over the leaves of it, I cannot see how
any one can say he has read it. But those acts the
evidence neither affirms positively nor denies; and
the conclusion, therefore, which is sought to be drawn,
that the testator did not really know of these bequests
in his will, is not a satisfactory one. I do not say it
is not as alleged by the plaintiff; but I cannot
acquiesce in it as a conclusion from the reasoning.
Taking, then, all these grounds together, I think I
ought to refuse the motion, and with costs,

Monday, June 26. MARRYATT v. MARRYATT. Transfer of stock into court-Payment of money into court-Notice of motion-Parties. Where trustees of stock and money admitted by their answer that such funds were in their hands, and an executor of a legatee of part moved for the transfer and payment into court of such trust funds; copies of the bill, to which the trustees and one cestui que trust were the only defendants, had been duly served on all parties interested, but the bill contained no clauses alleging fraud or misconduct on the part of the trustees, or any other danger to the property, and notice of this motion was served upon the trustees only: Held, on the authority of Bartlett v. Bartlett, 4 Hare, 631, that the stock should be transferred; but payment of the money into court was, under the circumstances, refused. This was a motion for the transfer and payment into court of two sums of 2000l. and 28007. government stock, and of two sums of 2500% and 10,000% cash. James Marryatt, the testator in the cause, by his will, dated the 18th Aug. 1818, devised and be

Glasse, Q.C. (Hetherington with him), contrà, cited Ford v. Rackham, W. R. 1853-4, p. 9. Even if plaintiff was right in his contention, the widow and all the other cestuis que trust ought to have been served with notice of this motion, as well as with copies of the bill, as they were all interested in the funds in question. But the plaintiff was wrong, as, without any allegation of misconduct on the part of trustees, or danger to the funds, a person entitled to a mere contingent interest could not, on an interlocutory motion, seek, in effect, to turn trustees out of their office. At all events, he had no right to call for the payment into court of the sums of cash.ed

J. Bailey, in reply, cited the 15 & 16 Vict. c. 86, s. 42. The trustees now sufficiently represented all parties lawfully interested in the property for all purposes.

V. C. STUART'S COURT.

1

court for safety. Whatever, therefore, my own ideas
on the point may be, I confess I feel I ought not to take
a different view of the matter from that case, espe-
cially as it seems to me to exactly include the pre-
sent. Here the fund is a clear one, the income
of which is payable to the widow of the testa-
tor. She, and some of the other cesteux que trust,
are not parties to the suit; and though all
parties interested have been served with copies of
the bill, the trustees only have had notice of this
motion. This was made a ground of objection; but,
inasmuch as this suit is a simple administration one,
a mere legatee is not a proper, that is a necessary,
party to it. If it were the case of the administration
of a trust under a settlement, then indeed it would be
requisite to have all parties interested now before
the court; but here, unless I found that, when the
funds were in court, it was absolutely necessary to
have the widow and the other cestuen que trust there,
in order to place her and them in a better position in
reference to the property than they now are in, I
should not require service of the notice of motion
to be made on them. Then, again, it was said
this decree could not be asked for on an interlocutory
application; but, unless there is a controversy whether
the funds actually are standing, as alleged, in the
names of the trustee or trustees, I do not see why the
decree now asked cannot be made on motion; where-
ever there is no such controversy, the court will make
an order upon motion. I think, therefore, ou the
authority of the case cited to me, the stock should be
brought into court. So far, therefore, as regards those
two sums of 2000 and 28004, government stock,
I must make the order, for their transfer. But as to
the sums of cash, I am satisfied they ought not
be paid into court. The first was a sum of money
received by the trustees on the sale of their testatur's
property; part of that purchase-money had been-ap-
plied by them in adjusting an agreement as to a
further sale of other parts of the estate. It may
be that other funds might have been more properly
devoted to that purpose, but that is not the question
now; and if it were, if the trustees had improperly
applied the money they did expend, they might have
been made liable for such conduct, if the bill had be
framed with that view. But it was not. Ther
as to the second sum. I ought not to order that into
court either. Whenever a fund is in the hands of exe-
cutors to be administered by them in a suit, as part
of a testator's assets, prima facie, I admit, it ought to
be brought into court; but here, as regards this sum,
the two sons of the testator were directed to continue
his business after his death, and to have an option of
taking, under certain circumstances, portions of the
capital for expenses in so doing. There was a direc
tion in the will for the payment back by them to the
trustees, of any excess they might have in their hands
after paying such expenses; but how that excess was
to be ascertained, or when to be paid to the executors,
the testator did not specify, nor do I understand 1
confess, looking at the fact that it does not clearly
appear as to this last sum what the amount is or may
be, I cannot make the order for the payment of it
into court. All I can do then is, on the authority of
Bartlett v. Bartlett, to direct the transfer of the two
sums of stock into court, and the dividends on them
to be paid to the executors, to be by them applied as
part of the testator's assets, under the trusts of his
will.

1

V. C. STUART'S COURT. Reported by JAMES B. DAVIDSON, Esqof Lincoln's-It, Barrister-at-Law.bo pire

Monday, Feb. 27660
Re POOLE BATHURST'S ESTATE, and Re THE SOUTH
WALES RAILWAY ACT, 1845, AND THE SOUTH
WALES (AMENDMENT) ACT, 1846; ex parte
CHARLES BATHURST.
Aqui po

The VICE-CHANCELLOR.-The question upon this
motion is whether two sums of 20007. and 28001.
government stock, and also two other sums of 2500
and 10,000l. cash, should be paid into court by the
trustees of the will of James Marryatt, on the ground
that they are part of the trust estate of the testator,
which estate is being now administered by this court;
and that they are admitted by the trustees to be in
their hands. I confess I often marvel that any trustee
or executor should object to transfer stock. I should
have expected that he would jump at the opportunity
of so doing, and getting rid of his liability; but I
can well understand his not wishing to pay money,
that is cash, into court, as such funds are very different
from stock; and many questions may arise concern-
ing them which do not affect the former species of
property. Now in this case it is not disputed that
the sums of stock formed part of the testator's estate;
that they were applicable to the payment of his
debts (if any); there were, however, no debts;
all the parties before the court, as well as all
others interested in the question, have for years
acted on the assumption that these sums constituted
a clear property, divisible into sixths. I own that
where a sum of stock stands in the names of trustees
upon trust to pay it-for example, to a husband and
wife, and then to their children, Ido not myself see why,
on principle, without any suggestion of misconduct on
the part of the trustees, it should be alleged or held that
any person having a mere contingent interest, or any
interest however remote, can come to the court and
ask to have the trustees removed from their office (for
that is the effect of such an application as the pre-Appointment confirmed.
sent), and to have the money in their hands paid into
court! If a person so situated can do so, why is it?
It must be for the purpose of protecting the trust
funds. But there is here no allegation, nor even a sug-
gestion, of any danger to them. I confess I do not see
how, upon such grounds alone, the application ought
to be entertained. But, from an accurate report of a
judgment pronounced by a very accurate judge, it
does seem that a party having a mere contingent in-
terest in trust funds, may have stock transferred into

Appointment of trustees under a porcer. 4 deed of settlement, in which three trustees were named, contained a power of appointment of når trustees, whereby it was provided that, in case the three trustees, or any of them, should die, or be dtsirous to be discharged, or should neglect or refuse to act, it should be lawful for the husband and wife, and the survivor, to appoint" any other person or persons to be a trustee or trustees for the several purposes aforesaid, in the place or stead of the said trustee or trustees who should so die or be desirous to quit, and be discharged," &c. The husband died, and after wards two of the trustees; the third was desirous of relinquishing the trusts.

The widow alone, by deed-poll indorsed on the deed, and in execution of the power, appointed two frastres in the place of the original three.

A deed of settlement, dated 30th Sept. 1777, exe cuted in contemplation of the marriage of Henry Fane and Anne Batson, and of which James/ Batson, Stanlake Batson, and David Robert Michel were the trustees, contained a power of appointment of new trustees in the following terms:

"In case the said James Batson, Stanlake Batser, and David Robert Michel, or any of them, shall die, or be desirous to quit and be discharged of and from the trusts hereby in them reposed as aforesaid, defors