1796.

FELLS

v.

READ.

Costs.

compel the execution of the trust by the delivery of the thing at the time. But the conduct was extremely bad in Read; and not better in those, who conspired with him to frustrate the purpose of the trust and act contrary to it.

Declare the Plaintiffs entitled to the possession of this box. Let them receive it from the Master's office. Let all the Defendants pay the costs; and let the Defendant Read pay the costs at law ( 41 ).

(41) See 1 Fonb. Tr. Eq. 31. Post, Lloyd v. Loring, Vol. VI, 773. Lady Arundell v. Phipps, X, 139, 163. Lowther v. Lord

Lowther, XIII, 95. Earl of Macclesfield v. Davis, 3 Ves. & Bea. 16. Withy v. Cottle, Adderley v. Dixon, 1 Sim. & Stu. 174, 607.

1796.

March 7th.

gacy out of

sonal estate

payable two

years after the event: by codicil the testator reciting, that he found

WORDSWORTH v. YOUNGER.

Contingent le- HENRY LITTLEDALE by his will, dated the 11th of April, 1779, devised and bequeathed all the rest of his real and per- real and personal estate to trustees and the survivor, his heirs, executors, administrators and assigns, upon trust to advance to his wife such sums, as she should think necessary for the maintenance of herself and family and for the maintenance and education of his two children Anne and Catherine, while under age; and when his said children should attain their ages of twenty-one years or marry, then to pay to each of them one full third part of all his said personal estate, and the other third part to his wife; and if both his children should happen to die under age and unmarried and without issue, he gave and bequeathed to his sister Catherine Littledale 3000l. being charge to be paid her at the end of two years after the death of the survivor of his said children as aforesaid.

his estate would not

bear that payment during the life of A.,

able with an

annuity for her

life, declared, he revoked

that part of his will, and

that the said

The following day the testator made a codicil containing this clause:

"Whereas since making the annexed will I found, that my " estate

legacy upon the same event was to be paid twelve months next after the death of A. and not before. A. dying before the contingent event, the legacy is not payable till the expiration of the two years after it.

* estate would not bear the payment of the 3000l. to my sister during the life of my mother-in-law, as it is chargeable with "the payment of 120l. to her during life; therefore I revoke "that part of the will; and in case my two dear children "should happen to die under age, unmarried, and without "issue, then the said 30007. is to be paid twelve months next " after the death of my mother-in-law, and not before."

Upon the marriage of the testator's sister Catherine Littledale with John Gale her interest in this legacy of 3000l. was settled in trust, in default of her appointment to pay the interest to her husband for life, and after his decease to pay the principal to their children. Catherine Gale died in 1783. Eleanor Littledale, mother-in-law of the testator, died in 1786, Catherine Littledale, the younger daughter of the testator, died in 1793. His eldest daughter Anne died upon the 11th of March, 1794. They both died unmarried and without issue, The bill was filed by the trustees under the marriage settlement of John and Catherine Gale and their infant son by his father as next friend; and the question was, whether the legacy of 3000l. was payable immediately upon the death of the surviving daughter of the testator, or not till the expiration of two years after that event.

Solicitor General, Mr. Stanley, and Mr. Thomson, for the
Plaintiffs.

The codicil makes no alteration except by farther postponing the payment.

Lord CHANCELLOR.

The testator has clearly expressed his intention to postpone the payment. He reasons distinctly by his will; taking notice of the inconvenience, that would arise in the life of his motherin-law; and revokes what? That direction, by which it became payable in the life-time of his mother-in-law. In no event it shall be payable, while she is living. He refers back to the contingency in the will; and puts a new term upon it, There is a little ambiguity in it. Declare, that the legacy is payable with interest from the 11th of the present month of March to the trustees of the settlement. The costs must come out of the estate,

1796.

WORDS-
WORTH
v.

YOUNGER.

[ *74 ]

1796.

March 14th.

ner under a

misconduct in

the other part

MASTER v. KIRTON.

Bill by a part- THE bill stated the following case. The Plaintiff and Defendant were bankers in partnership: but no agreement parol agree in writing had been entered into. The Defendant introduced ment charging Newnham, a friend of his, to keep cash with them; and contrary to the opinion and desire and without the consent of the ner, and prayother partner permitted him to draw upon the partnership; ing a dissolu- and directed his bills to be paid out of the joint property; bŷ tion, account which he became considerably indebted to the partnership. and injunction Newnham executed bonds to the Defendant only. A balance from executing of above 5000l. remains due from Newnham, with respect securities in to which he referred the Plaintiff to the Defendant; who the firm: de- said, the bank had no demand against Newnham.

the name of

murrer to the prayer for a dissolution, because there

was no writing between

them, overruled.

[ *75 ]

The bill prayed, that the partnership between the Plaintiff and the Defendant might be dissolved, an account, and division of the partnership effects, and payment of the balance, if any should be due, to the Plaintiff upon the account; and that the Defendant might be restrained from executing bonds, notes, or any other securities in the name of the firm, without the consent of the Plaintiff.

The Defendant demurred to so much of the bill, as prayed the dissolution of the partnership,

Mr. Grant, for the Demurrer.

This partnership existing only by the fact of their acting together, the prayer, that the Court may do what they have a right to do for themselves, is idle and nugatory. In the case of a tenant by sufferance a demurrer will lie; for notice to quit may be given.

Lord CHANCELLOR.

There is no colour for this demurrer. How is the Plaintiff to have the account taken? How is he to restrain the Defendant from using the partnership name and receiving the partnership debts? Over-rule the demurrer.

On the 22d of March, 1797, the Master of the Rolls sitting for the Lord Chancellor, decreed a dissolution of the partnership; though the Counsel for the Defendant contended against such a decree upon the same ground as was taken on the argument of the demurrer (42).

(42) See Watson on Partnership, 380, 1.

1796.

MASTER

v.

KIRTON.

FRANCO v. FRANCO.

1796.. March 15th.

THE bill stated the following case.

Jacob De Moses Bill by one

stock into his

name: demur

rer, because

Franco by his will gave to his son Raphael 1000l. in trust trustee of for Jacob, son of Raphael, and as many other sums of 5007, stock against each, as he should have other children at the testator's decease the other to except Jacob, to be paid to them respectively at the age of compel him to replace it or twenty-five or marriage, with benefit of survivorship in case give security of the death of any before the time of payment. The tes- according to tator appointed his said son Raphael and his grandson Jacob, his engage son of his eldest son Moses, executors, and in case of the ment, when death of either of them he appointed Francis Franco, the the Plaintiff Plaintiff, to be one of his executors in the place of him dying, joined in transAt the death of the testator Raphael had ten children. The ferring the executors invested 55007. in 5 per cent. Bank Annuities in their joint names upon the trusts of the will for the children of Raphael. Both the executors died: Jacob in 1782: the cestuis que Raphael in 1784. Raphael appointed the Plaintiff Francis trust were not Franco, the Defendant Jacob Franco, and two other persons, parties, overhis executors. All the remainder of the fund was transferred ruled with into the names of the Plaintiff and Defendant upon the trust of the will of Jacob De Moses Franco; of which will the Plaintiff upon the death of the surviving executor obtained probate. Seven of the children of Raphael having attained the age of twenty-five, their shares were transferred to them. In September, 1793, 3000l. 5 per cent. Bank Annuities remained for the three remaining children, who had not attained the age of twenty-five. At that time the Defendant prevailed upon the Plaintiff to permit the fund to be transferred from their joint names into the name of the Defendant only; in order that he might sell the same; assuring him, it was only

costs.

[ * 76 ]

for

1796.

FRANCO

v.

FRANCO.

[77]

for a temporary accommodation, and he would very soon replace it; and he also proposed for absolutely securing the repayment, to surrender a copyhold, and to procure the Plaintiff to be admitted, and also to convey other estates; upon which the transfer was made; and the Defendant sold the stock, received the produce, and never replaced it.

The bill prayed a discovery and account; that the Defendant should be decreed to replace the fund, or to surrender the copyhold estate, and that the Plaintiff might sell the same, and that the Defendant should be decreed to make good the deficiency.

The Defendant demurred on the ground, that the three children of Raphael, the cestuis que trusts, were not parties.

For the Demurrer.

The rule, that all persons interested must be parties, is invariable, except in the case of creditors and legatees; who by particular indulgence are permitted to go on before the Master. These children have the very same equity as the trustees. They might file a bill for the same purpose, and pray the same specific relief. The rule is, that the Court will not entertain a suit on behalf of a trustee without having the cestui que trust before the Court, Hanne v. Stevens, 1 Vern. 110.

Lord CHANCellor.

That was a suit for the execution of the trust. This is no bill for execution of the trust. Whatever demand the cestuis que trust would have, they could never found themselves upon the case the present Plaintiff makes against the Defendant. The demurrer ought to be over-ruled, and with costs; and I cannot help marking in strong terms my disapprobation of such a demurrer; which can be put in only for delay, and to cover a person guilty of a breach of trust, and to defer the time, at which he ought to answer.