other. I should be sorry to bring them before the Court by a supplemental bill, but I must take care that in dispensing with form I may not be increasing the difficulties. I do not dispute the proposition that one legatee may file a bill for his specific legacy; that is the old doctrine of the Court, and it has been done where it is simply a money legacy and no question arises between the legatee and other legatees. My opinion upon the construction of this will is, that the question about the effect of a general charge of debts simpliciter does not arise here, because the testator has expressly charged not only his debts upon his real estate but all his mortgage debts by name. I think it is extremely likely, speculating on what testators generally mean, that he did not know the extent to which he was affecting his property, but that is mere conjecture. He begins by saying, "I direct all my just debts, *funeral expenses and charges of probate and execution of my will to be paid by my executors out of my personal estate, and out of the rents of my real estate as hereinafter mentioned." And then in the next page giving one of his leasehold properties, and giving directions to the trustees how they shall dispose of it, he says, "After all my debts, mortgages and other incumbrances are paid off as hereafter mentioned," in both cases referring to a subsequent direction. What are his subsequent directions? He says, after giving all his legacies and disposing of what he calls real estates, which were these leasehold chief rents and leasehold houses, "Provided always," &c. (His Lordship here read the clause set out, ante, p. 171, and proceeded:) Language cannot be plainer, all his property was to go in payment of not only his debts but of his mortgages. What was then the duty of the trustees? It is quite clear, I think, that until that which was in the nature of a condition precedent was performed, they were not authorized to let anybody into possession of the leaseholds; that until the debts, probate and funeral expenses and incumbrances had been fully paid off and discharged, the trustees ought to retain. the rents. I think the testator meant to say that he charged them all upon his leaseholds, which substantially was all the property that he possessed. The other personal estate was almost nothing. He directed his trustees to receive the rents, and not to let anybody into possession till the debts had been paid; I think the result of that was, that although they were not to let anybody into possession till that was done, yet that each estate was meant to contribute rateably, not that the whole interest of the tenant for life was to go in discharge of those incumbrances. He meant it simply as a pressure. "You shall not let anybody into possession until all this preliminary trust has been performed." *The trustees may HARPER v. MUNDAY. [ *373 ] [ *374 ] HARPER v. MUNDAY. [ *375 ] not have construed the will rightly; but I agree with Mr. Wigram that it would be extremely harsh if they intending to do right, having received and kept an account of the rents and applied them in payment of the incumbrances, were to be fixed with a liability as for misconduct because they have erroneously construed this will; that however is what the VICE-CHANCELLOR has done, and I cannot go along with him in the view which he has taken. He has ordered the trustees not only to deliver up the possession to the plaintiff of the leaseholds bequeathed to her, but to pay to her the whole of the rents that have been received since the death of the testator in respect of such leaseholds, not charging those rents. with any portion of the debts, and still less with any portion of the incumbrances. One of the smallest incumbrances, and debts to a trifling amount, have been paid off. I think you cannot construe the word "debts" so as to confine it merely to personal charges, and whether the testator was personally liable or not is immaterial. The mortgage debts were beyond all doubt incumbrances. I think that the ultimate mode of settling the rights of these parties will be to ascertain according to the decree of Vice-Chancellor PARKER what is the relative value of the different estates; then to ascertain the amount of the debts which have been paid, and which may still remain to be paid, including as part of those debts these mortgages, and to apportion that accumulated charge, made up partly of debts which will include funeral and testamentary expenses, and partly of incumbrances and legacies, and to charge a rateable proportion on the plaintiff's interest; and when that is done, her proportion of those debts will have to be paid out of the sum found to be received by the trustees in respect *of the rents of her estate; and supposing that fund is more than sufficient, or sufficient to meet her share of the charge, then she may be let into possession. Although this is the construction which I put upon the will, I cannot be certain that the legatees in remainder of the other leasehold estates may not take a different view of the case. They may say, the tenants for life are bound to contribute the whole. On that account, therefore, I feel extreme difficulty in coming to a decision in the absence of those who may question it. I think the trustees have been erroneously charged with the costs. Their conduct has not been so careful as it ought to have been; but I cannot regard it as a case in which, in my discretion, I should charge the trustees with costs. The VICE-CHANCELLOR'S view of the case might reasonably have led him to the conclusion he came to on the subject of costs; and if I had taken the same. view of the rights of the parties, I might not have arrived at the conclusion that it was a case in which I ought to interfere with the discretion of the VICE-CHANCELLOR; but taking the view which I do of the rights of the parties, it follows, as of course, that I cannot allow the trustees to remain liable to these costs. On this day Mr. Chandless, Mr. Little, Mr. G. M. Giffard and Mr. Baggallay, by the desire of the LORD CHANCELLOR, appeared for the other legatees, who were treated as having been made. parties by supplemental bill. The LORD CHANCELLOR expressed himself to the same effect as he had done when the case was last before him, that the testator's debts, including mortgages, were *charged upon all the leaseholds according to their respective values. His Lordship observed that the parties now appearing in the suit for the first time were not. to be bound by the accounts already taken, but were to be bound by the construction put upon the will. WEBB v. KIRBY. Lord L.C. [376] (7 D. M. & G. 376-382; S. C. 26 L. J. Ch. 145; 3 Jur. N. S. 73; 5 W. R. 189.) Dec. 5, 6, 24. In the particulars of sale of certain leaseholds, the premises were stated to be sold "by order of the executors," they were in fact sold by the CRANWORTH, administrator de bonis non of the testator durante absentia of his next of kin. The sale was by auction, and the purchaser paid the usual deposit, but refused to complete on discovering the nature of the vendor's title: Held, dismissing a bill for specific performance, that although the effect of the grant during the lifetime of the absent principal would have been perfectly valid, yet inasmuch as the principal might at the time of the sale have been dead, the title was not such as a purchaser was bound to accept, and the deposit, with interest, was ordered to be refunded. THIS was an appeal by the defendant William Kirby, from a decree of the Vice-Chancellor STUART, directing specific performance of an agreement to purchase certain leaseholds from the plaintiff. The defendant had purchased the leaseholds in question at auction. The particulars of sale stating them to be sold "by order of the executors of John Holloway deceased." The sale was, in fact, made by the plaintiff James Alden Webb, to whom letters of administration cum testamento annexo de bonis non of the testator had been granted durante absentiâ of Alfred Holloway, who was the next of kin of the testator, and of Louisa Holloway his wife. The testator died in March, 1820. Louisa Holloway died in February, 1855, and the leaseholds in question then became subject to the trusts for sale under the testator's will, dated the 22nd December, 1819. By that will he directed that, at the decease of his wife, his entire property should be sold, and an equal division made of the *proceeds among his children. He also directed that his executors should be at full liberty to make sale of all his disposable property, and to invest the monies as in his [ *377 ] WEBB v. KIRBY. [ *378 ] said will expressed, and that their receipts should be full and sufficient discharges to any purchaser or purchasers whatever, and he appointed his wife, and two of his sons, and one of his sons-in-law, executrix and executors of his will. Louisa Holloway survived her three co-executors. Letters of administration de bonis non of the testator, with the will annexed, were granted to the plaintiff on the 2nd October, 1855, as "the lawful attorney of Alfred Holloway the son, and one of the residuary legatees named in the will of John Holloway," and the same constituted the plaintiff administrator of "the goods, chattels and credits of the said deceased (with the said will annexed), left unadministered as aforesaid, for the use and benefit of the said Alfred Holloway, now residing at Jordan, Lincoln County, in the province of Canada West, in North America, and until he shall duly apply for and obtain letters of administration, with the said will annexed, of the unadministered goods of the said deceased to be granted to him." The leaseholds in question were put up to sale by auction on the 6th September, 1855, by the plaintiff's direction, subject to certain conditions of sale, the only material condition being the ninth, which was in the following terms: "The vendor sells under the will of John Holloway deceased, and the concurrence of the persons beneficially interested in his estate or the purchase-money shall not be required, and the vendor shall only be required to enter into the usual trustees' covenant, that he has done no act to encumber." The defendant having bought the premises, signed the usual memorandum and paid the deposit, but, within the time limited by the conditions of sale, took an objection that *the plaintiff, as such administrator of the testator, was not in a position to make a good title, without the concurrence of the representative of the last surviving trustee; whereupon the plaintiff obtained letters of administration to the effects of Louisa Holloway, as surviving trustee and executrix of the said testator's will, but inasmuch as Alfred Holloway would, if in England, have been the proper person to administer her estate, the plaintiff was thereby constituted "administrator of the goods, chattels and credits of the said deceased, for the use and benefit of the said Alfred Holloway, now residing at Jordan, Lincoln County, in Canada West, and until he shall duly apply for and obtain letters of administration of the goods of the said deceased to be granted to him." The defendant then objected, that the letters of administration durante absentiâ did not confer upon the plaintiff a right to sell, and he also objected to complete his purchase without the concurrence of the parties beneficially interested. The VICE-CHANCELLOR having made a decree for the specific performance of the contract, with costs, against the defendant, he now appealed to the Lord Chancellor. Mr. Bacon and Mr. Boyle, for the plaintiff, in support of the VICE-CHANCELLOR's decision. * * Mr. Wigram and Mr. Rendall, for the defendant Kirby, in [We submit that even if a complete personal representative could sell, the plaintiff cannot make a good title, for his title is only as the attorney of Alfred Holloway, who may be dead, and a valid act cannot be done in the name of a dead man.] Mr. Boyle, in reply, cited Forbes v. Peacock (1). THE LORD CHANCELLOR: The question in this case is one which does not often arise, and it turns on the legal rather than the equitable effect of letters of administration granted durante absentiâ. I shall not finally dispose of this case till I have looked at the authorities. There are two grants of administration to the plaintiff, one de bonis non of the testator, who died in 1820; the other of Louisa Holloway, which describe the plaintiff as attorney of the testator's *son in Canada, not durante absentiâ simply, but until the son shall duly apply for and obtain letters of administration; this could not be revoked until the son returned. The first question is, whether the plaintiff can sue in either of these characters. Had the sale been effected by the executors of the original testator, then the objection, as to the concurrence of the parties. entitled to the purchase-money, would have been out of the question; it is otherwise, however, if the executors have done everything, and the sale has been by the representatives of the surviving trustee in that case the consent of the cestuis que trust would be necessary, unless excluded by the conditions of sale. I will look over the authorities to which I have been referred, and give my judgment in a few days. THE LORD CHANCELLOR, after stating the facts and the terms of (1) 65 R. R. 485 (1 Ph. 717). . R.R.-VOL. CIX. WEBB KIRBY. [379] [ 380] [ *381 ] Dec. 24. |