Williams on Executors, 8th ed. 2062, Harcourt v. White, 28 Beav. 308, 309; Thorne v. Kerr, 2 K. & J. 54; In Re Gale, Blake v. Gale, 22 Ch. D. 820. The evidence establishes that the maker of the original note was insolvent before the testator died, and even if proceedings had been taken against him or against Wallbridge Bros. on the new note they would have been ineffectual: Clark v. Holland, 19 Beav. 271, 272. The executor's conduct is entitled to every consideration, the estate having been well managed: Buxton v. Buxton, 1 M. & Cr. 95. In any case he should not be charged with interest: Vanston. v Thompson, 10 Gr. 542; Re Crowter, Crowter v. Hinman, 10 O. R. 159 The commission allowed the executor should not be interfered with: Re Honsberger, Honsberger v. Kratz, 10 O. R. 527; Inglis v. Beaty, 2 A. R. 453.

Sherry, in reply. The investment in a note was in violation of the terms of the will, and this action is owing to the executor's default in getting in the assets.

April 6, 1887. BOYD, C.-The testator directs his executors to get in the moneys outstanding, and invest the same in such stocks as they may deem advisable, and out of the proceeds of dividends to pay the annuities bequeathed; and at the death of the wife he directs the investments to be converted into money and equally divided among beneficiaries named. A large part of the assets was in the shape of a promissory note for $4,000 (not produced), which the executor thinks was made by Wallbridge Brothers, on which they paid interest, and which he left outstanding till November, 1876, when there was a settlement or arrangement of accounts between them whereby the executor paid to the Wallbridges some $683 and took a new note for the $4,000, payable in a year. The reasons which induced the executor so to act were, that he considered the parties perfectly solvent, and that he was getting 7 per cent. on the note, a higher rate than could be obtained on a stock investment. This seems to be a very obvious case of a breach of trust, which cannot be excused whatever may

may be the hardship thereby resulting to the executor. He disobeys the plain directions of the will. He prefers (to use his own words) " to take the new note as a proper investment, as I got more interest than I could have got elsewhere," and so acting he must run all the risks if in the outcome the estate suffers. The duty of the executor was to collect this note. If he tried to do so and failed then he would be, of course, exonerated; but instead of that he lets the debt run on till the parties become hopelessly insolvent, and the asset is lost. By the evidence it appears that he could have collected this note before 1871 and in 1871, and even, perhaps, as late as the end of 1875. It will, however, be a convenient point of time to charge him with the $4,000 (as upon a breach of trust) and interest at 6 per cent. beginning at the end of a year from the date of the last note (i. e., 5th November, 1872).

He should of course get credit for the larger amount of interest he may have received thereafter, and he should not be charged at 6 per cent. interest if it is proved that he could not have invested in stocks to realize six per cent. The accounts will have to be taken on this footing. This change will also affect the costs. The reason for this administration was a failure of the executor to collect this $4,000. That is a matter for which he is to blame and costs of the proceedings should be borne by him, unless some reason exists for his exculpation of which I am not He will also pay the costs of this appeal.

aware.

I do not disturb the commission which has been allowed to the executor; but that should be set off against the amount with which he is now chargeable.

The Statute of Limitations has no application to this case. There is a vague suggestion, but no proof that the beneficiaries knew of what was going on, but made no complaint. I must take it that they were ignorant of the breach of trust. They had no claim till the death of the widow, and she yet lives; they were entitled to assume in the absence of information to the contrary, that the executor was properly discharging his duties.

As quoted by Cotton, L. J., in Re Vernon, Ewans & Co. 33 Ch. D. 410 the cestui que trust is entitled to trust in and place reliance upon his trustee and is not bound to enquire whether he has committed a fraud against him unless there is something to raise his suspicion. This is not a case of devastavit,which rests upon the improper application of assets after being received by the executor,but the liability is founded on the wilful default of the executor to get in and properly invest available assets. In this instance as in Smith v. O'Grady, L. R. 3 P. C. 311 it is the executor who comes to the Court that his accounts may be taken and that it may be ascertained whether he is a debtor or a creditor of the estate. He himself courts investigation and cannot invoke the aid of the Statute of Limitations to evade what he has sought. Sce generally as to the inapplicability of the Statute of Limitations: Flitcroft's Cuse, 21 Ch. D. 520.

G. A. B.

[CHANCERY DIVISION.]

RE MORICE AND RISBRIDGER.

Vendor and purchaser—R. S. O. ch. 109—Provision in deed—Lawful issue.

A deed made by C. G. (mother) to J. H. G. (daughter) just after the latter's marriage, contained the following provision: "It being hereby declared and agreed that it is intended by this deed to vest in the said J. H. G. life interest and estate in the said land, and at her decease the same is to go to the lawful issue of the said J. H. G., and to be held by them, their heirs and assigns in equal shares," and was executed by both grantor and grantee. No issue were in existence at the date of the deed. Subsequently J. H. G. and her children, with the exception of two, executed a mortgage in fee of the property; of these two, one died in the lifetime of J. H. G., leaving infant children. In an application under the Vendor and Purchaser Act, R. S. O. ch. 109, on a sale by the mortgagee it was,

Held, that the real design of the grantor and J. H. G. the grantee, appearing on the face of the deed, was that only a beneficial life estate should be given to the grantee, and that the beneficial remainder in fee should go to her children; that each child born while the grantee lived would have a vested right to a share in the property, and that such share would descend to those who died before the grantee: and that such a title could not be forced on a purchaser.

THIS was an application under the Vendor and Purchaser Act, R. S. O. ch. 109.

James D. Morice was a mortgagee of certain lands, and was selling under the power of sale in his mortgage, to Thomas Risbridger. The mortgage was made by one Jane H. Gardiner, her husband James C. Gardiner, and five of her children. The deed from Catherine Graham (mother of Jane H. Gardiner) through whom title was claimed, was made to Jane H. Gardiner after her marriage, and contained the following provision: "It being hereby declared and agreed that it is intended by this deed to vest in the said Jane Harriet Gardiner life interest and estate in the said land, and at her decease the same is to go to the lawful issue of the said Jane Harriet Gardiner, and to be held by them, their heirs and assigns in equal shares," and was executed by both the grantor and grantee.

On proceeding to make title to Risbridger, the purchaser under the mortgage sale, it was discovered that a daughter, of Jane H. Gardiner, Sarah Jane, who had married one

Walker, and died leaving three infant children, and a son, Hedley, had not executed the mortgage, and the purchaser refused to accept the title without the opinion of the

Court.

The matter came up in the usual way upon petition, and was argued on April 6, 1887, before Boyd, C.

D. M. McIntyre, for the purchaser. The deed may have vested the legal estate in Jane Harriet Gardiner, but the execution of it by her as grantee made it operative as a trust. It was a declaration of trust by her to hold the legal estate first, in trust for herself for life, and second for her issue on her death: Wickham v. Hawker, 7 M. & W. 63; Wilson v. Gilmer, 46 U. C. R. 545; Monypenny v. Monypenny, 9 H. L. C. 114.

it

J. Maclennan, Q.C., for the vendor. The words are repugnant. There is nothing of a testamentary character in the deed as the grant is to take effect at once. The deed vests a fee simple followed by the usual covenants. The object ofthe deed seems to be to vest a fee simple, but prevent alienation, and the law will not favor that. [BOYD,C.—But may have been intended as a gift to the grantee, and to the expected issue]. A grant to " A. and his issue" is a life estate to A. and the issue jointly if the issue are in existence, but if no issue then exist they will not take. "Issue" is a word of purchase, and not of inheritance. Here there were no issue in existence at the time. The words "child" or "children" in a deed are words of purchase: Elphinstone, Norton & Clark, on the Interpretation of Deeds, 319; Lario v. Walker, 28 Gr. 216; In ve Parry and Daggs, 31 Ch. D. 130 at 134. The provision in the end of this deed is void, as repugnant, as it follows a grant to and covenants for title and quiet enjoyment with the grantee and her heirs. Even if the execution by the grantee operated as a re-grant there were no issue in existence at the time, so the grantee took the fee simple. I also refer to Sheppard's Touchstone, 88.

81-VOL XIII. O.R.