others whose names are unknown to the plaintiffs were united in copartnership under the name, style, and firm of "The General Maritime Assurance Company," for the purpose of carrying on and did under the name, style, and firm aforesaid carry on the trade and business of insurers of ships, goods, and merchandise against the perils of the seas; that the defendant was a shareholder in the said company; that the plaintiffs on the 11th November, 1846, effected with the said company a policy of insurance on a ship called The Elizabeth, which policy was subscribed for and on behalf of the company by three of the members whose names were set out; and the count is for non-performance of certain of the terms of this policy. The second and third counts are in precisely the same form as to two other insurances. dual subscriber constituting the assuring firm should be expressed on the policy, or only the name of the firm itself. We think the name of the firm is all which is required. When the Legislature by the 5 Geo. 4, c. 114, repealed the restrictions created by the 6 Geo. 1, c. 18, it must have done so with the practical object of facilitating assurances by other companies besides the two old chartered bodies, and this object would be almost entirely defeated if in the case of every insurance the name of every member of the firm were to be expressed on the face of the policy. When the statute of George IV passed joint-stock companies unincorporated but consisting of great numbers of members had become very common, and the members of such bodies notoriously vary from day to day. No person would ever effect an assurance with a company of such a nature, if, as is contended for The third plea is as follows:-" And for a further by the defendant, his policy would be void unless the plea in this behalf as to the first count of the declara- names of all the shareholders were correctly stated on the tion, the defendant says that the said policy of in- face of the policy, i. e. unless the policy contained an acsurance in the first count of the declaration mentioned curate list of names, the accuracy of which the assured was a policy of insurance in writing, and was made and would never have the means of ascertaining. It is imposentered into after the passing of a certain act of Par- sible to attribute such an intention to the Legislature. liament made and passed in the thirty-fifth year of the Unless we hold that they deemed the statement of the reign of his late Majesty King George III, intituled name of the firm to be a sufficient compliance with the 'An Act for granting to his Majesty certain Stamp- clause in question, it is difficult to see how at the time duties on Sea Insurances,' and after the same came when the stat. 35 Geo. 3, c. 63, passed it was possible for into operation, to wit, on the said 11th day of Novem- the two incorporated companies to comply with its prober, in the year of our Lord 1846, in the said declaration visions-their policies never stated, nor were they inin that behalf mentioned, and that the said policy of in- tended to state, more than their corporate names, and surance was a contract of insurance in respect whereof yet there was no special enactment on the subjecta certain duty, to wit, 17. 7s. 6d., was by that act of it was taken for granted that the statement of the Parliament made payable; and the defendant further name of the corporation was a statement of the name saith that he did not subscribe the said policy of in- of the underwriter within the meaning of the statute; surance in the first count of the said declaration men- and now that insurances by other firms, whether cortioned, nor was the name of him the defendant ex-porate or not corporate, are made legal, it seems to us pressed or specified in or upon the said policy of insurance according to the true intent and meaning of the said act of Parliament, by reason whereof the said policy of insurance in the first count mentioned became and was wholly void: and this he the defendant is ready to verify" &c. The sixth and ninth pleas are similar pleas to the second and third counts of the declaration. There were special demurrers to all these pleas, which were argued in last term. The pleas were founded on the provisions of the 35 Geo. 3, c. 63, s. 11, which enacts, inter alia, that the names of the underwriters shall be expressed or specified in or upon every policy of insurance in respect whereof any duty is made payable by that act, and in default thereof that the insurance shall be void. to follow as a natural corollary that the name of the firm is all that can be required. It may be added in confirmation of this view of the case that the Legislature certainly contemplated that the policies would ordinarily be made on printed forms ready prepared, (see 35 Geo. 3, c. 63, s. 6), and this could scarcely be practicable if on every change of a share a change of the form became essential. On these grounds we think the pleas are bad. We also strongly incline to think them bad as being double; not only raising the objection under the statute, but also putting in issue the execution of the policy by the defendant. It is however unnecessary to decide this, holding as we do that they are bad in substance. The defendant however relied not only on the validity of his pleas, but also on the invalidity of the The pleas do not state, and no doubt could not have declaration. The action, he contended, was misconcorrectly stated, that the name of the firm, viz. "The Ge- ceived, and ought to have been brought not against neral Maritime Assurance Company," was not expressed him, but against the directors who subscribed the poon the policies; but the pleas are founded on the as-licy, alleging a promise by them that the funds of the sumption that the statute requires the name of every underwriter individually to be expressed in the policy to this we do not accede. At the time of the passing of the stat. 35 Geo. 3, c. 63, the 6 Geo. 1, c. 18, was in force, which prevented any partnership firm excepting the London Assurance Company and the Royal Exchange Assurance Company from effecting marine insurances. Every underwriter subscribed for himself alone, so that when the statute required the names of the subscribers to be expressed in or upon the policy it necessarily required the statement of every name individually-there could be no assuring firm except the two chartered companies. But the prohibition contained in the 6 Geo. 1, c. 18, was repealed by the 5 Geo. 4, c. 114, since the passing of which latter statute partnerships for marine insurance have been legal in the same way as partnerships for any other ordinary purpose, and the question is whether, construing the 35 Geo. 3, c.63, s. 11, with reference to this present state of the law, it is necessary that the name of every indivi company should pay. There does not however appear to us to be any force in these objections. The declaration states that the defendant and several other persons, of whom the directors signing the policy were three, constituted a firm carrying on the business of marine assurance, and that the three directors on behalf of the firm of which the defendant was a member, subscribed the policies on which the action is brought. It then states that in consideration, inter alia, of the premium paid by the plaintiffs the defendant promised to perform all things on his part to be performed by virtue of the policies, and this was certainly the legal obligation attaching on the defendant by reason of the making of the policy. The substance of the policies is set out, and it appears from their terms that the defendant, as one of the assuring parties, undertook with the plaintiffs that the funds of the company should be answerable for the losses insured against, so nevertheless that he should not be personally liable to an extent exceeding the amount of his own shares-for that this is the true meaning of the policy appears from Dawson v. Wrench and Others, (18 Law Journ. 229), decided in this court in last Hilary Term. The declaration then avers the losses, that the funds of the company are more than sufficient, and that the defendant's interest is more than sufficient to make good to the plaintiffs the amount of their losses, and alleges as a breach the non-payment of such losses; and the declaration therefore appears to us to be perfectly good. The result is that our judgment must be for the plaintiffs. Our decision in this case necessarily governs the other case of Cross v. Allan, in which also therefore the judgment will be for the plaintiff. Judgment for the plaintiffs in the first, and for the plaintiff in the second case. PREROGATIVE COURT. In the Goods of M. DAWSON.-Dec. 5. Practice Administration with Will of married Woman annexed-Right of Husband. A married Woman made her Will under a Power; she disposed of the Whole of the Fund, over which she had a Power, away from her Husband, and appointed no Executor. No other Property was referred to in the Will. Under the Circumstances, the Court decreed the Administration to the Husband. The deceased, a married woman, had, under the will of her father, a power of appointment by will over a sum of 10,000l., and on the 23rd July, 1847, she made her will, and appointed the said sum of 10,000, to certain persons, upon trust, during the life of her husband, to pay the interest thereof equally between such of her sons as should be then living, and at his death to divide the principal between those who should have survived her, their executors, administrators, and assigns. There was no executor appointed of this will, nor was any property other than this sum of 10,0007. dealt with or mentioned. The husband applied for administration with the will annexed, and on his behalf it was submitted, that the practice which now prevailed in the registry, of granting administration with the will annexed to a legatee in preference to a husband, in cases in which a married woman had made a will under a power, and appointed no executor, was wrong in principle and contrary to authority. For supposing that practice to be founded upon the decision in Fielder v. Hanger, (3 Hagg. 769), and upon the principle that the grant ought to follow the interest, yet there was no analogy between the case of an administration to the goods of a married woman who died intestate, as in that case, and an administration with the will of a married woman annexed, such will being made under a power, which was the present case. It might be very true, that the husband did not take anything out of the 10,000l. disposed of; but the Court, in granting the administration to him, would give him no control whatever over the fund in question, and would only prevent the necessity of a second grant cæterorum to him. In ordinary cases, where there was no executor who took out probate, the practice was to grant administration with the will annexed to the residuary legatee, that the estate might be placed in the hands of the person who had the greatest interest in administering it carefully; but in the case of the will of a married woman, made under a power of appointment, the estate appointed never comes at all into the hands of the administrator or executor, the probate or administration, in such cases, being only to show that the deceased had, and had exercised, the power, and the estate passed under the deed which gave the power immediately to the persons appointed in the will, and their receipt, and not that of the executor or administrator, who had no control over the property, was a discharge to the trustees. This was the ground upon which the Court of Exchequer formed its opinion in Platt v. Routh, (6 Mee. & W. 756), in which (p. 791) Lord Abinger, C. B., says, "Although Judith Ann Platt had what we consider an absolute power of appointment over the property in question, yet it is clear that the ordinary never could, under any circumstances, have any right whatever to interfere with it; and it is also certain, that, whether probate be granted or not, the executor, quà executor, can have no title to any part of the property. Lord Lyndhurst, in delivering the judgment of the Court in The Attorney-General v. Staff, (2. C. & M. 124), said, that that case, which was exactly similar to the present, came within the very words of the 38th section of the 55 Geo. 3, c. 184. But this is, in fact, begging, the whole question. The words of the 38th section are, that the person applying for probate shall make oath that the estate and effects of the deceased for or in respect of which the probate is to be granted, exclusive of property of which the testator was possessed as trustee, and not beneficially, are under a certain sum.' The question is, whether property circumstanced like the present is property of the deceased for or in respect of which the probate is granted; and the House of Lords (The Attorney-General v. Hope, 2 Cl. & Fin. 84) having decided that the probate is granted in respect only of that property which, but for the will, the ordinary would have been entitled to administer; and it being quite clear, that neither the ordinary nor the executor ever could have administered any part of this property, we cannot hold that this is property for or in respect of which the probate is granted."And in Salmon v. Hays, (4 Hagg. 382), decided after argument, this Court upon the same principle refused to grant a limited administration with the will annexed to the legatees, but according to the course of office, as stated in the marginal note, granted a general administration to the husband. That case is a clear authority for the grant to the husband; and the practice said to prevail in the registry, being at variance with that decision, should be amended. It is important that, in fact, the Court, when it grants administration with the will of a married woman annexed, excludes the appointed property from the grant, which passes under a nominal sum, and requires no security from the administrator in respect of such property. Haggard was heard in support of the application. Sir H. JENNER FUST. The practice certainly seems at variance with the decision referred to in Salmon v. Hays; and although that case appears to have been well considered, and decided after argument, I am unwilling at present to lay down any rule for the future, until more cases have been looked up; but I will decree the administration to the husband in this case, coming to that decision upon the circumstances of the case itself, and guarding myself against laying down any precedent. COURT OF CHANCERY. Right of Trustee for specific Purposes against Trustee of Legal Estate, on Failure of specific Trust. Freehold Estates were, by Deed, conveyed unto and to the Use of J. W., his Heirs and Assigns for ever, upon Trust, at the Request of L. S., her Heirs, Appointees, or Assigns, &c., to convey the said Premises to such Person or Persons, for such Estate or Estates, and in such Manner and Form, as L. S. should by any Deed &c direct or appoint. L. S. made no Appointment inter Vivos, but by her Will, duly executed according to her Power, she devised all her Estates, Real and Personal, to Trustees, their Heirs, Executors, Administrators, and Assigns, upon Trust to sell and convert into Money, with all convenient Speed, and stand possessed of the Proceeds, upon Trust to pay thereout all Costs, Charges, and Expenses attending the Execution of the Trusts of the Will, Deb's, Funeral and Testamentary Expenses, and Legacies, and then in Payment of certain Legacies specified in a Memorandum marked A, and signed by her; and she app inted the Trustees Executors of her Will. L. S. died, but Paper A was not forthcoming. The Trustees filed their Bill against J. W., stating that they were about to sell the said Estates, and praying a Conveyance. J. W., by his Answer, admitted that there were still due Debts and Legacies of L. S., and submitted to pay such Proportion of them as were properly payable out of the Real Estate; but insisted that there was no absolute Disposition of the beneficial Interest, and that the Plaintiffs were not entitled to call upon him for a Conveyance; alleging further, that L. S. had died without an Heir, and that she was Tilegitimate:-Held, that J. W. was bound to convey the Legal Estate to the Trustees of the Will, and was not at Liberty to inquire for what Purposes the Estate was required. By indentures of lease and release, dated respectively the 28th and 29th July, 1837, Andrew Lavering Sarel, in consequence of the natural love and affection which he had for his wife, Louisa Sarel, and for divers other good causes and valuable considerations, conveyed and assigned unto John Wallis, (since deceased), and his heirs, certain closes, pieces, or parcels of land therein mentioned, to hold the said closes, pieces, or parcels of land and hereditaments, with the appurtenances thereto belonging or appertaining, unto and to the use of the said John Wallis, his heirs and assigns for ever, upon the several trusts thereinafter mentioned -that is to say, upon trust that he, the said John Wallis, his heirs and assigns, should, at the request of the said Louisa Sarel, her heirs or assigns, testified in writing under her hand and seal for the purpose, either at one and the same time, or at several times, and from time to time, and at the expense of the said Louisa Sarel, her appointees, heirs, executors, or administrators, convey the said pieces or parcels of land and hereditaments, and their appurtenances, either in one lot or in several lots, to such person or persons, for such estate or estates, and in such manner and form, in all respects, as the said Louisa Sarel, notwithstanding her coverture, by any deed or deeds, writing or writings, to be by her sealed and delivered in the presence of and attested by two or more credible witnesses, should from time to time appoint; and in default of and until such direction or appointment, and so far as any such direction or appointment, if incomplete, should not extend, apon trust that he, the said John Wallis, his heirs and assigns, should receive the rents and profits of the said closes, pieces, or parcels of land and hereditaments, and pay and apply the same to such person or persons only, and for such intents and purposes only, as the said Louisa Sarel, notwithstanding her coverture, by any writing or writings signed by her with her own hand, VOL. XIII. YY should from time to time, either as the said rents and profits should have actually become due and payable, or by way of anticipation, direct or appoint; and in default of and until such direction or appointment, into the proper hands of the said Louisa Sarel, for her sole and separate use and benefit, exclusively of and without being subject to the control, debts, or engagements of the said Andrew Lavering Sarel; and the receipt of the said Louisa Sarel, or of her appointees, for the said rents and profits, notwithstanding her coverture, were to be effectual discharges for the same: and upon further trust, that if the said Andrew Lavering Sarel should die in the lifetime of the said Louisa Sarel, then that the said John Wallis, his heirs or assigns, should, immediately after the decease of the said Andrew Lavering Sarel, in the lifetime of the said Louisa Sarel, convey the said closes, pieces, or parcels of land and hereditaments, or such part or parts thereof as should then remain undisposed of under the trusts and powers therein before contained, with their appurtenances, to the use of the said Louisa Sarel, her heirs and assigns, for her and their own use and benefit. It appeared that the real consideration for the said conveyance was the sum of 20,000l., paid to Andrew Lavering Sarel by his said wife, who was entitled to that sum, for her separate use. John Wallis died on the 2nd April, 1842, intestate as to these trust estates, leaving the defendant, John Wallis, his son and heir-at-law. Andrew Lavering Sarel died on the 3rd April, 1843. Louisa Sarel died on the 7th September, 1847, without having made any appointment inter vivos affecting the said premises; but by her will, duly executed according to her power, and dated the 30th June, 1847, she devised certain estates, not the subject of the present suit, unto Sir Henry Onslow, Bart., his heirs and assigns for ever. She then proceeded as follows:-"I give certain legacies, which I have mentioned and specified in a certain memorandum in writing marked with the letter A, and signed by me, which I direct my trustees and executors, hereinafter named, to pay out of my personal estate. I give, devise, and bequeath all other the messuages, lands, hereditaments, and real estate, and all the personal estate and effects of or to which I shall at my death be seised, possessed, or entitled, at law or in equity, unto the said Sir Henry Onslow and David Gray, their heirs, executors, administrators, and assigns respectively, in trust that they, the survivor of them, and the heirs, executors, administrators, or assigns of such survivor, do and shall, with all convenient speed, make sale and absolutely dispose of and convert into money, and call in and receive all the same real and personal estate respectively, and do and shall stand possessed of and interested in the monies to arise from the sale thereof, in trust, in the first place, to pay thereout all costs, charges, and expenses attending the execution of the trusts of this my will, and my debts, funeral and testamentary expenses, and legacies, and then in payment of the legacies given by me in a certain memorandum signed by me, and inarked with the letter A. I appoint the said Sir Henry Onslow and David Gray executors of this my wil." The trustees and executors proved the will. The bill alleged, that the memorandum referred to in the will as being marked with the letter A was not forthcoming, nor any evidence of its contents; that the said estates were now legally vested in the defendant, John Wallis, in trust for the plaintiffs, as owners under the said will; that there were debts of the testatrix still remaining unsatisfied; and that the plaintiffs, in execution of the trusts of the said will, were about to sell the said estates, and had caused applications to be made to the defendant to convey the estates to the plaintiffs upon the trusts of the will: and the bill prayed a conveyance accordingly. The defendant, by his answer, admitted all the allegations of facts stated in the bill; but he submitted, that the said estates were not now legally vested in the defendant, in trust for the plaintiffs, as devisees under the said will of the said Louisa Sarel; for that the said will does not contain any absolute disposition of the beneficial interest in the said hereditaments, and only operates as a charge upon the said hereditaments, of the debts, costs, expenses, and monies in the said will in that behalf mentioned; and that the said Louisa Sarel died, as the defendant believes, without any heir: and the defendant stated that he was willing and thereby offered to pay and discharge all sums so charged upon the said hereditaments under or by virtue of the said will: and the defendant submitted and insisted, that the plaintiffs had no equity to call upon the defendant, he being so willing, to execute any conveyance to them of the legal estate in the hereditaments*. He admitted that there were some debts of the testatrix still remaining unsatisfied, which he was willing to pay and satisfy, so far as they were by the said will charged upon or made payable out of the produce of the said hereditaments. The only evidence that was gone into was, on the part of the defendant, to shew that the testatrix died without an heir; but this evidence was not conclusive. Upon the cause coming on before the Vice-Chancellor of England, on the 16th January, 1849, his Honor decided in favour of the plaintiffs, and decreed a conveyance to them by the defendant, but ordered the defendant's costs to be paid out of the estate of the testatrix†. This was an appeal from the whole of that decree, except as to the matter of costs. Humphry and Bird, for the plaintiffs, the respondents. Rolt and J. V. Prior, for the appellant. Upon Humphry commencing to open the appeal, Rolt submitted, that, as the appeal did not ask to disturb the decree as to costs, it was not an appeal from the whole decree; and that he, on behalf of the appellant, was entitled to open the appeal. The LORD CHANCELLOR was of opinion that the plaintiffs were entitled to open the appeal. Humphry.-The trust in the deed of settlement under which the defendant holds is as distinct a trust as can be, *This claim by the defendant was founded upon the opinion of one of the most eminent conveyancers of the day. The passage from that opinion upon this point was in these words: "The trustees of the will of Mrs. Sarel, having no trusts to perform beyond the payment of her debts and funeral and testamentary expenses, cannot require Mr. Wallis to convey to them the estate of -: as against them, he may retain this estate for his own benefit, on payment of a due proportion of Mrs. Sarel's debts and funeral and testamentary expenses, for the payment of which this estate and all her personal property were by the will made one fund; nor, as the legal fee was outstanding in Mr. Wallis, does this estate escheat to the Crown in consequence of Mrs. Sarel dying without heirs. (Burgess v. Wheat, 1 W. Bl. 123; 1 Eden, 177). Therefore, Mr. Wallis may, if he pleases, hold this estate for his own benefit." The following is taken from a short-hand note of his Honor's judgment on that occasion : ·-- "VICE-CHANCELLOR.-This appears to me to be a very simple case; because, if the state of the law be such, as that a person who is a trustee of the legal estate is entitled to hold the same for his own benefit, unless there be a trust to execute-if that were so, every testator must be presumed to know the law. If a personal benefit is to accrue to the trustee, that would be inconsistent with the right, which the person who has the beneficial interest has, to direct that the legal estate, which the trustee has, shall be conveyed by him to certain other persons for certain purposes; for, by that direction. she, in fact, wills that the character of the trusteeship shall be changed. My opinion is, that, if any beneficial interest or right does arise to these persons as devisees in trust, they take it because it was meant to be given to them; and my opinion is, that they are entitled to a conveyance." and the devise by the will of Mrs. Sarel is equally distinct. We do not question the authority of the case of Burgess v. Wheat, (1 W. Bl. 123), but we say, that a trustee, holding an estate under such circumstances as the defendant holds this estate, can have no equity to come here, either as a plaintiff or defendant, asking for any thing to be done, in order that his right to retain the estate might be established. (Williams v. Lord Lonsdale, 3 Ves. 752; Roberts v. Walker, 1 Russ. & My. 752; Boughton v. Boughton, 1 H. L. Cas. 406). In the present case, there is a positive trust of a mixed fund, which must be performed; and the legacy-duty attaches whether there be a sale or not. (The Attorney-General v. Holford, 1 Price, 426; Williamson v. The AdvocateGeneral of Scotland, 10 Cl. & Fin. 1). [Lord Chan cellor.-Suppose the will made no equitable disposition, but that it was a devise of the equitable estate to trustees upon trust for A. B., and A. B. died before the testator; could the trustees of the will obtain a decree of this Court to have a conveyance? Now, in the present case, paper A may never be found. The question is, whether the estate is to be conveyed to the trustees of the will upon non-existing trusts, so long as paper A may not be found; for until then, there is nothing but a charge of debts. It is a question merely, between the trustee of the deed and the trustees of the will, who are to have the surplus. It is clear, that, if the defendant conveyed the estate to the plaintiffs the defendant could have no equity to have it back after payment of the debts.] This is the case of an active, not a mere passive trust; and I submit, that this Court cannot treat the defendant as the trustee of the testatrix's will, instead of the person appointed by the testatrix. Bird, on the same side.—I submit, that, even if all the trusts of the will failed, the trustees of the will would have a right to a conveyance from the defendant. The trust under the deed of settlement is for Mrs. Sarel or her assigns. Suppose Mrs. Sarel had made an assignment during her lifetime, the Court would not have allowed the defendant to ask for what purpose he was to convey; but the testatrix has by her will directed the trustee to convey the legal estate to the plaintiffs. What difference can there be between a direction by will and a direction inter vivos? But we say that there are trusts to be executed which may exhaust the whole estate, and therefore the Court will not allow the defendant to defeat the trust. There is no analogy be tween the position of an heir and a mere dry trustee of the legal estate, for the heir has everything except what has been taken from him. Rolt and Prior, for the defendant, the appellant.The question is, what is the extent of the equity that the plaintiffs have, if any. The first ground contended diction, upon the application of a plaintiff situated as for on the other side is, that this Court has no juristhe present defendant is, to assist him in his title; but the present case is exactly the reverse of the cases cited. But then, secondly, they say that the defendant cannot set up any extraordinary equity against them. It is incorrect to say, that the cases cited by the other side proceeded upon the ground of no jurisdiction; this Court has jurisdiction in every case where there is an equity. In Burgess v. Wheat, Lord Keeper Northington put it upon the ground that no trust existed. The other side then say,There is a trust to be executed, and trust." They might just as well allege that against an we want to take upon ourselves the execution of that heir-at-law, as against any other person having the legal estate subject to a charge; but such a case will not prevail against the heir-at-law, not on account of the heir-at-law taking upon himself the performance of the trust, but upon the ground, that, if the trustee will tell him what amount he wants to enable him to perform the trust, he will give it him; and the Court, in such a case, will never require the sale of the estate. The case comes to the question suggested by the Court, namely, who is entitled to the surplus; and the question will be, who has the better equity. Here is only a limited trust, and to that extent it must, we admit, be performed; but the performance of it is only a question of mode, not of substance. There can be no doubt, that, if this was a case between the heir-at-law and the trustees of the will, the heir-at-law might say, 'I am ready to pay you so much as will enable you to perform the express trusts created by the will; and this would be all that the trustees would be entitled to: there is but little difference between this case and that of an heir-at-law. [Lord Chancellor.-There is a very great difference: the heir claims in his own right; the trustee claims even where he has no equity, and simply because there is no other person to claim. Then comes the question, whether the will has not conveyed to the trustees of it that title which the heir might otherwise have had.] By the will the trustees have the beneficial fee, but only for limited purposes; and it is the every-day practice of the Court to cut down the interest which the trustees take, to such an equitable interest as will enable them to perform the trusts. The whole argument of the other side proceeds upon the supposition that we are coming into equity to ask for its assistance: that is not so; they come into equity, and we stand on our rights. [They cited Taylor v. Haygarth, (14 Sim. 8; S. C., 8 Jur. 135); Henchman v. The Attorney-General, (3 My. & K. 485); and Davall v. The New River Company, (ante, p. 761).] Nov. 22.-LORD CHANCELLOR.-No case similar to this has been cited, and, indeed, none have occurred, where, property being on trust, the owner of that property gives it to somebody else-beneficially or not is a question the defendant has no right to inquire into. It is not like the case of Burgess v. Wheat. The only reason why a trustee, under the circumstances in Burgess v. Wheat, holds the property, is, because there is nobody to take it from him; it does not belong to any person whom the law recognises as having a right to ask for the execution of the trust. Now here the original owner undoubtedly had a right, as against the trustee, to direct what he should do with the property-he is a mere naked trustee. The testatrix in this case had a right to do what she pleased with the beneficial interest. She does by her will direct the legal estate to be conveyed, or at least gives the property, to the trustees of her will. The question is, whether the defendant, who appears to be the trustee of the legal estate, has any right to inquire for what purpose the trustees of the will required the legal estate. The devise is a gift, in trust, it is true, but it is the appointment of persons who are to stand in the place of the original owner, as against the trustee. Then why is the beneficial interest, which is by the operation of the rule of law in Burgess v. Wheat to enure to the benefit of trustees, to enure to the benefit of this trustee? There is no want of persons authorised, as against the trustee, to transfer the beneficial interest. Suppose the testatrix had simply directed that the estates should be transferred to new trustees, and directed the existing trustees to convey to those who are trustees under the will; could the trustees of the legal estate dispute the title of the trustees under the will, because they might or might not have the means of carrying into effect the trusts of the will? The real question is, whether it is regulated by the doctrine in Burgess v. Wheat. I think it is not at all so regulated, for that case proceeded on the want of some person having a right to control the legal estate; but here there are persons authorised to control the legal estate. I do not take exactly the view which the Vice-Chancellor seems to have done, because he seems to have considered it would depend on the presumed intention of the testator. For that purpose you are to assume he intended that paper A should not be produced, and therefore there would be a failure of his declared intention. Therefore, if there is any trustee who is to have the benefit of the doctrine in Burgess v. Wheat, the trustee under the will is to have it. It cannot be considered that the testator had any such view at all. It must be presumed he intended that the purposes declared by his will should be carried into effect. Those purposes have failed, in consequence of paper A not being produced: it may be produced hereafter, or it may not; if not, the object is attained. I do not proceed on that ground, but I proceed on this that there are persons appointed by the owner of the property to whom the property is to be conveyed. They are the only parties having a right to it; whether or not they have the power afterwards to dispose of all beneficial interest is a matter with which the defendant, Wallis, as mere owner of the legal estate, has nothing whatever to do. This seems to me to be a case which does not fall within the doctrine of Burgess v. Wheat, so far as the defendant, Wallis, is concerned; and therefore the direction of the Vice-Chancellor for a conveyance under the terms of the will is, I think, a proper decree, and it must be affirmed, with costs.-Appeal dismissed, with costs. ROLLS COURT. RODICK V. GANDELL.-July 24 and Nov. 13. G. & B., Partners, having overdrawn their Balance at |