a declaration, that the sum of 1,0601. formed part of the estate of Smith, and that John Acton held the same in trust for the persons entitled to the personal estate of the testator. That the principal sum paid into the Bank of Kinnersley & Co., together with interest thereon at 5l. per cent. with annual rests, ought to be paid to the plaintiff, as the legal personal representative of the testator Smith, to be administered by him. That the sum of 1,0601. with interest from the 28th of February, 1853, might be paid to the plaintiff by the defendant Meigh, and that the difference between what should be paid by Meigh, and the amount of the said principal and interest with annual rests, might be paid to the plaintiff by the other defendants. The bill alleged, "that John Acton was a trustee for the plaintiff and the other residuary legatees, as to the said sum of 1,060l. paid by him into or left by him in the hands of Messrs. Kinnersley, and that the plaintiff and the other residuary legatees of the testator were entitled to the sum of 1,060., together with interest thereon, as part of the clear residuary estate of the testator appropriated by John Acton, for such residuary legatees. "That although the 1,060l. was or is standing in the name of John Acton, it formed no part of his estate, but was and is Smith, as the said John Acton had acknowledged." the The representatives of John Acton relied on the Statute of Limitations, and insisted that he was not a trustee for the residuary legatees. Mr. Meigh admitted payment into the Bank of three sums of money, in 1827, 1831 and 1833, to the credit of John Acton, which, with interest, now amounted to 1,0271., and he was willing to pay it, on receiving a sufficient acquittance and dis charge for the same. SMITH ACTON. [ 211 ] Mr. R. Palmer and Mr. Sidney Smith, for the plaintiff, argued first, that this was a trust fund and was ear-marked, that it now belonged to the representatives of Smith, that the Statute of Limitations was inapplicable, and that the case had been taken out of the statute by the correspondence. Mr. C. Swanston, jun., for Acton's executors, argued that the claim was barred by the statute, and that the case had not been taken out of the operation of the statute by what had occurred. Mr. John Stuart, for Meigh, submitted to act as the Court might direct, and asked for his costs. As to the Statute of Limitations, the following cases [among [212] others] were cited: Stansfield v. Hobson (1), Prance v. Symp I think there has been some confusion during the argument, which makes it necessary to distinguish between two classes of cases. If the 1,060. had been mixed up with the estate of John Acton, instead of being separated from it, it would then have been necessary to have an account of Smith's estate as against the representatives of Acton, and if it were made out that Acton had retained the money and had used it for his own benefit, his estate might be charged with interest, with or without annual rests. In such a suit the *Statute of Limitations (5) would be properly pleadable, and the question which has been argued of a subsequent promise to pay would then arise. But if the fund does not belong and never did belong to Acton's estate, but was part of Smith's estate deposited with Messrs. Kinnersley, and the object be simply to recover it from Mr. Meigh, then the estate of John Acton could not be charged with interest and the Statute of Limitations as regards his representatives would not be applicable. The cases are separate and distinct. It is therefore properly charged in the bill, that this money is part of Smith's estate, separated and in the hands of Mr. Meigh, who is a mere stakeholder. The question which arises is simply this: To which of the two estates does it belong? that once decided, then it follows that the persons entitled to that estate are entitled to the money. I stopped the argument as to the Statute of Limitations, treating this fund as in the hands of Mr. Meigh, who is the only person who could properly set up that defence, and who might say "I am entitled to it as against all the world." But Mr. Meigh does not raise that contention; he disclaims all interest in it; the fund therefore belongs to one of the two estates, and there is a clear admission on the part of John Acton, that it did belong to, and was solely derived from, Smith's estate. The plaintiff is entitled to a decree for the money. I cannot give the Actons any costs, but Mr. Meigh must have his costs, for he is a mere stakeholder. (1) 98 R. R. 261 (3 D. M. & G. 620). (4) 47 R. R. 476 (2 Y. & C. (Ex. Eq.) 662). (5) See 3 & 4 Will. IV. c. 27, s. 40. EX PARTE THE DEAN AND CHAPTER OF WESTMINSTER (1). IN RE THE HAMPSTEAD JUNCTION RAILWAY COMPANY. (26 Beav. 214-217; S. C. 28 L. J. Ch. 144; 3 Jur. N. S. 232; 7 W. R. 81.) A Railway Company took some lands belonging to an ecclesiastical corporation, which at the time was let on lease, and a large sum was awarded as a compensation, on the principle of the lessee continuing to pay the rent reserved by his lease. The land being valuable for building purposes, and it being the custom of the corporation to make it available, by accepting surrenders and regranting building leases at a great advance of rent, the COURT, on the evidence, held, that the corporation was entitled to the dividends on the compensation money, in addition to the rent during the term granted by the lease. THE above Railway Company had, under the powers contained in their Acts (which incorporated the Lands Clauses Consolidation Act) taken two pieces of land at Hampstead, belonging to the Dean and Chapter of Westminster. The first consisted of about eight acres, which had been demised in 1808, for the lives of three persons, and of the survivor (all of whom were living), at a yearly rent of 11. 128. The second consisted of about one and a half acres, which was subject to an agreement dated in 1855, for a demise thereof, with other lands, for ninety-nine years, at an aggregate yearly rent of 2311. 10s. The arbitrators, duly appointed, awarded to the Dean and Chapter the sum of 3,300l., for the absolute purchase of their estate and interest in the eight acres of land, subject to the lease of 1808, and the further sum of 105l. for the absolute purchase of their estate and interest in the one and a half acres, subject to the agreement of 1855, and 3,7001. by way of compensation for the damage or injury sustained or to be sustained by the Dean and Chapter, by reason of the execution of the works of the Company, and of the severing of the lands from their other lands, or otherwise injuriously affecting such other lands, by making the tunnel, railway *and works. And the arbitrator stated, in his award, that he had fixed the above amounts on the principle, that the lessees were to continue to pay the whole of the rents reserved by the lease of 1808 and by the agreement of 1855 to the Dean and Chapter during the residue of the terms. The three sums, with interest, amounting to 7,6321. 1s. 3d., having been paid into Court, the Dean and Chapter now pre 1858. Nov. 13, 24. Rolls Court, ROMILLY, M.R. was a tenant for life, from that here [214] | *215 ] Ex parte sented a petition, praying payment to them of so much of the fund as consisted of interest, and for payment to them of the CHAPTER OF dividends to accrue due, from time to time, on the remainder of DEAN AND WESTMINSTER. [ *216 ] the fund. The question raised was, whether, under the Lands Clauses Consolidation Act the petitioners were entitled, until the expiration of the terms of the leases of 1808 and 1855, to anything more than the rent stipulated to be paid by the lessees. The effect of this would be, to allow the income to be accumulated during those periods for the benefit of the successors. There was evidence to the following effect: that the Dean and Chapter of Westminster had, for many years past, refused to renew the leases held on lives, with a view of improving their property, by letting it out on building leases at the expiration of such leases, or by accepting surrenders of the leases, and regranting the land on building leases for ninety-nine years, under the powers of the Act of 5 & 6 Vict. c. 108. The affidavit then specified three instances, in which land adjoining that in question, held of the petitioners *for lives, had been surrendered and building leases taken for ninety-nine years. One of these, consisting of forty-five acres, had been taken at a rental of 500l., and an obligation to build to the value of 20,000l.; a second of twenty-one acres, at a value of 2317. 10s., and a third of forty acres at a rental of 1,1201. The witness stated, that from his professional knowledge of the value of land, he knew, that the price awarded by the arbitrator, as compensation for the eight acres, was awarded with especial reference to the capability of such land being turned to account as building land, and from the suitableness of its situation for such purpose, and the demand of building land in the immediate neighbourhood, an immediate market was rendered almost a certainty. He said that the Ecclesiastical Commissioners were willing to promote such arrangements, and that in all the aforesaid cases, the reserved rents, on granting leases for ninety-nine years, had, with the consent of the Ecclesiastical Commissioners, been wholly paid to the said Dean and Chapter of Westminster. That in his opinion, the petitioners, if the dividends on the fund should be paid to them, would only receive such benefit from the land as they might lawfully have had, if it had not been sold, but had been dealt with by surrender and regrant, under the powers of the Act before referred to. Mr. R. Palmer, for the Dean and Chapter, supported the application. Mr. Speed, for the Company, argued, that the petitioners Ex parte THE were only entitled to the rents reserved by the leases until the expiration of the terms thereby granted, *and that the dividends DEAN AND must in the interim be accumulated. The following cases were referred to: Ex parte The Dean and Chapter of Gloucester (1), Ex parte The Precentor, &c. of St. Paul's (2); and see In re Steward's Estate (3). THE MASTER OF THE ROLLS: On carefully reading over the evidence in this case, I am of opinion, that the value of the property was estimated as of a property in possession; and, fully adopting the principle of those cases which hold, that where a reversion is taken by a Railway Company, the persons entitled in possession shall only take so much of the dividends of the compensation money as corresponds with the amount which they would have received if the land had remained unconverted, and that the rest is to accumulate for the purpose of making up, when the reversion falls into possession, the absolute value of the property, I am of opinion, that this is not a case of that description. CHAPTER OF I think that, having regard to the evidence, to the mode of dealing with this property and the agreements that have been entered into for letting it on building leases, by obtaining the surrender of existing leases for lives for that purpose, this case must be treated as one in which the property has been bought as in possession, and I consequently think that the Dean and Chapter of Westminster are entitled to the dividends upon this fund. and I do not mean to disturb them by what I now state. NEWMAN v. NEWMAN (No. 1). (26 Beav. 218-219; S. C. 4 Jur. N. S. 1030; 7 W. R. 6.) South Sea stock and 31. 5s. per Cents. held, on the context, to pass by the expression "surplus money. MINSTER. [217] A testatrix bequeathed specific sums of South Sea stock and 31. 58. per Cents. to her sister for life, and, at her death, she left "this money in trust to her niece," to pay certain legacies, which did not exhaust the whole. She authorized her sister and niece (who were her executrixes) to sell out the residue of “her money in the 31. 58. per Cents. over the sum she had mentioned, for payment of her debts, and proceeded: "then, if there is any surplus money, I give it to my niece: Held, that the niece took the surplus of both the funds. THE testatrix Lucy Hibbert bequeathed as follows: "To my dear sister, Mrs. Ann Newman, I leave the interest of 2,7771. 48. in the South Sea stock and 2,650l. in the 3l. 5s. per Cents. for her sole use during her life, and at her death I leave this (3) 94 R. R. 786 (1 Drew. 636). (1) 87 R. R. 513 (19 L. J. Ch. 400). (2) 103 R. R. 227 (1 K. & J. 538). 1858. Nov. 8. Rolls Court. ROMILLY, M.R. [218] |