tors and administrators, against any loss or damage. which he or they might sustain by reason of any laches or neglect which might be imputed, to him, in consequence of the trust-funds not having been invested in the purchase of real estate, as directed by the settlement, or in consequence of Danby having acquiesced in the misapplication of the 10001. by William Earl Harcourt. 1851. HARCOURT v. SEYMOUR. demnify Danby, for not having invested the trust-funds in the purchase of real estate. 16th April 1818. Appointment of new trustees of *Sic. By an indenture dated the 16th of April 1818, after reciting that the Earl and Countess, and Danby were desirous of appointing Sir Harry Calvert, Sir Howard the settlement. Douglas and George Samuel Collyer trustees of the settlement, and that the 12,7351. 3s. 4d. stock had been transferred into the joint names of them and Danby, and that it was forthwith intended to convey, to them, the 20,0001.* secured on mortgage of Sir George Lee's estates: the Earl and Countess and Danby appointed those gentlemen trustees of the settlement jointly with Danby; and it was declared that they should stand possessed of the stock and of the 20,000l. when the same should be conveyed to them, on the trusts of the settlement. In July 1822 the 12,735l. 3s. 4d. Five per Cents, were converted into 13,3717. 18s. 6d. New Four per Cents. The Earl never repaid the 1000l.: and the other part of the trust-funds continued invested as before mentioned until after his death. The Earl made his will dated the 24th of March 1828, and thereby gave 10,000l. to the Countess, absolutely, and the interest of 80,000l., to be set apart as thereinafter mentioned, and his mansion-house at St. Leonard's Hill, and all his lands,tenements and hereditaments there or elsewhere, which were not otherwise disposed of by his will, for her life; and he declared that the provision thereby made for her, was in lieu and full satisfaction of all jointure, dower, 24th March 1828. Will of Harcourt. William Earl 1851. HARCOURT v. SEYMOUR. thirds or other estate or interest whatsoever to which she would otherwise have been entitled, in, from or out of the property comprised in their marriage articles, or the real or personal estate whereof he might die seised or possessed; and, after her decease, he gave his mansion-house at St. Leonard's Hill, and all the other lands and hereditaments thereby devised to her for her life, to Danby, Henry Seymour and G. C. Heath, and their heirs, in trust to pay the rents to Sophia, the wife of his relation, Charles Amedee Marquis D'Harcourt, for her life, and, after her death, to convey, settle and assure the said hereditaments to William Bernard Harcourt, the eldest son, and to the second and other sons of the Marquis and Marchioness D'Harcourt, for their lives, successively, with remainders to their first and other sons in tail male; with remainder to George Simon Harcourt, of Cooper's Hill, for life, with remainders to his first and other sons in tail male; with remainder to Mary, the daughter of the Marquis and Marchioness D'Harcourt, for life, with remainders to her first and other sons in tail male; with remainder to his own right heirs and he gave 80,0001. to his trustees, in trust to invest it in Government or real securities, and to pay the interest to the Countess for life, and, after her death, to the Marquis D'Harcourt for life, and, after the decease of the survivor of them, in trust to lay out the same in the purchase of freehold lands in fee simple, or of lands of copyhold or leasehold tenure convenient to be held with such freehold lands, yet so that such purchase should be made with the consent in writing of the person or persons who, for the time being, would be entitled to the rents of the hereditaments thereby directed to be purchased, and to settle and assure the same hereditaments in such manner as was thereinbefore directed with respect to his mansion-house and lands at St. Leonard's Hill after the Countess's decease: and he gave all the residue of his personal estate, subject to the payment of his debts, &c. to the Countess, her executors &c. or, in case of her death in his lifetime, to the Marquis, his executors &c.: and he appointed the Countess, Heath, Collyer, and William Cowden, Esq., his executors. The Earl, by a codicil dated the 27th of May 1828, revoked the trust, in his will, for payment of the rents of the hereditaments to be purchased with the 80,000l. to the Marchioness D'Harcourt during her life, and declared that it should be lawful, for the trustees of his will, to invest the 80,000l. in the purchase of lands, during the lives of the Countess and the Marquis or the life of the survivor of them, with their consent in writing, and after their deaths, with the consent in writing of the person for the time being entitled to the rents of the hereditaments to be purchased, and that the same hereditaments should be settled and assured to the use of the Countess, of the Marquis and of William Bernard Harcourt for their lives successively, with remainder to the same uses as were directed, by his will, to be limited of and concerning his estate at St. Leonard's, after the death of William Bernard Harcourt. 1851. HARCOURT บ. SEYMOUR. The Earl died in June 1830 without having had any June 1830. issue by the Countess. She survived him, and accepted Earl Harcourt Death of Wm. the provision made for her by his will, in lieu of the pro- &c. vision made for her by the settlement. Lord Vernon was the Earl's heir-at-law. Shortly after the Earl's death, his executors paid the legacy of 80,000l. to the trustees of his will. The Countess died in January 1833, having, by her Jan. 1833. VOL. II. N. S. Death of Coun 1851. HARCOURT v. SEYMOUR. tess Harcourt: will dated in 1832. Opinions of Counsel taken in 1834. 8th and 9th May 1835. Con veyance execu ted by W. B. will dated in 1832, given a legacy of 15,000l. and her residuary personal estate to William Bernard Harcourt, and appointed George Simon Harcourt, G. C. Heath and G. S. Collyer, her executors. In 1834 the trustees invested the 80,000l. in the chase of an estate, which was conveyed to them upon the trusts of the will and codicil. Until September or October 1834, the 32,000l., and the monies and funds representing it, had been considered to form part, first, of the residuary personal estate of the Earl and, afterwards, of the Countess; but it then occurred to Messrs. Forster and Frere, the solicitors to the trustees and executors of the Earl's will, that it was questionable whether those monies and funds formed part of the Earl's residuary personal estate and, accordingly, they laid a case before Mr. Walters, a gentleman at the bar, who was of opinion, from the materials laid before him, that those monies and funds did not form part of the Earl's residuary personal estate, but were liable, by virtue of the settlement or articles of 1778, to be laid out in the purchase of land. William Bernard Harcourt, on the opinion being communicated to him, caused a case to be laid before Mr. Pemberton Leigh and Mr. Christie, two other gentlemen at the bar, who also were of opinion, from the statements contained in the case, that the settlement or articles converted the monies and funds into real estate, and that they passed, as such, under the residuary devise in the Earl's will. On the faith of this opinion, certain indentures of lease and release, dated the 8th and 9th of May 1835, were prepared and executed. The release was made be tween William Bernard Harcourt of the first part; the Marchioness D'Harcourt, who had survived the Marquis, of the second part; Sir H. Douglas and G. S. Collyer, the surviving trustees of the settlement of 1778, of the third part, and H. Seymour and G. C. Heath, the surviving trustees of the Earl's will, of the fourth part; and, after reciting the settlement and the Earl's will and codicil and his death without issue by the Countess, and the Countess's death; and after also reciting that the trust-fund comprised in the settlement, was not, nor was any part thereof ever invested in the purchase of real estate, in pursuance of the trust for that purpose contained therein, but that the same was, with the consent of the Earl and Countess, from time to time, invested on Government and real securities, which were altered as occasion required; and that the same then consisted of 34,338l. 7s. 4d.* sterling; and that the Earl's will and codicil did not contain any specific disposition of the said fund or any part thereof; and, after further reciting (most erroneously, as the bill alleged) that no act was done to discharge the fund from the trust to lay out the same in real estate; and after further reciting (erroneously, as the bill also alleged) that the Earl being, in the event, which happened, of his having no issue by the Countess, absolutely entitled, subject to the provision made for her by the settlement, to the hereditaments to be purchased with the fund, the hereditaments so to be purchased, were comprehended in the general devise contained in his will; *This sum was composed of the 10007., which the Earl's executors repaid to the trustees of the settlement, of 13,3387. 78. 4d. the proceeds of the Four per Cents, which were reduced to Three and a Half per Cents in July 1830, and sold in August following, and of the 20,000l., the mortgage for which was paid off in 1834. 1851. HARCOURT v. SEYMOUR. Harcourt in consequence of the opinions of Counsel. |
