1851. HARCOURT v. SEYMOUR. 1828. non was filed: That Earl Harcourt made entries in his pass books or banking account books with G. S. Collyer, wherein he stated the trust-funds to be, "trust-money," and, "trust-stock;" and wrote against several of the entries therein of dividends received on the trust-funds in 1812, 1822 and four following years, " Interest of trust-money:" That various arrangements were come to with reference to the mortgage for 20,000l. and the interest thereof (which originally was 51. per cent.) between Sir George Lee and the Earl, and, subsequently, between the Earl and John Lee, who succeeded to Sir George's mortgaged estates: and that a deed dated the 19th of February Deed of the 1828, and expressed to be made between Danby, Sir 19th February Howard Douglas and Collyer of the first part, John Lee of the second part and the Earl of the third part, and which was executed by Collyer, John Lee and the Earl, after reciting the mortgage for 20,000l., and showing that it was vested in W. Danby, Sir H. Douglas and Collyer, proceeded in part as follows: “And whereas the said sum of 20,000l. was not the proper monies of the said William Danby, Sir H. Douglas and George Samuel Collyer, but was held by them upon the trusts expressed and declared, concerning the same, in and by a certain indenture of settlement executed previous to the marriage of the said Earl Harcourt with his present Countess, under and by virtue of which, the said Earl is entitled to the interest of the said sum of 20,0007. during his life, and the said Countess is afterwards entitled to the interest thereof during her life * and, in the event of the said Earl dying without issue, he is entitled to the absolute property in the said principal money: And whereas it has been agreed, between the said Earl and the said John Lee, but without prejudice as *This recital was erroneous. 1851. HARCOURT v. SEYMOUR. hereinafter mentioned, that the said sum of 20,0001. shall remain vested, upon the security of the said manors and other hereditaments, for the term of five years from the 27th day of September 1827, at the rate of 47. 10s. per centum per annum, under and subject to the provisoes and conditions hereinafter expressed and declared: Now these presents witness, and it is hereby agreed and declared, between and by the parties hereto, and the said John Lee doth hereby, for himself, his heirs, executors and administrators, covenant with the said Earl, his executors, administrators and assigns, that he, the said John Lee, his heirs, executors or administrators, shall not be at liberty to pay the said sum of 20,000l. or any part thereof, until the end of five years to be computed from the said 27th day of September last past, unless the said Earl, his executors, administrators or assigns, shall call in the same in consequence of default being made in payment of the interest of the said sum of 20,000l.: And it is hereby agreed and declared, between and by the parties hereto, and particularly the said Earl doth hereby, for himself, his heirs, executors, administrators and assigns, covenant with the said John Lee, his heirs and assigns that, in case the said John Lee, his heirs or assigns, shall pay to the said Earl, his executors, administrators and assigns, interest for the said sum of 20,000l. after the rate of 47. 10s. per centum per annum, by equal payments, on the 27th day of March and 27th day of September in every year during the said term of five years, he, the said Earl, his executors, administrators and assigns, or the said William Danby, Sir H. Douglas and G. S. Collyer, or any of them, their or any of their heirs or assigns, shall not nor will call in the said sum of 20,000l. or any part thereof, until the end of the said term of five years: But it is hereby agreed and declared, between and by the parties to these presents, that if, at any time during the said term of five years, default shall be made, by the said John Lee, his heirs or assigns, in payment of the interest of the said sum of 20,000l., it shall be lawful, to and for the said Earl Harcourt, his executors, administrators or assigns, and for his or their trustees, to call in and compel payment of the said sum of 20,0007. and the interest thereof then in arrear and thereafter to accrue due, at the rate of 51. per cent. per annum." The Master found that the last-mentioned deed was binding on the Earl from the date of its execution and was regularly acted on, and that the Earl had treated the mortgage-money as money, previously to the date of the deed; and that there was found, at St. Leonard's, a letter with the following endorsement in the handwriting of the Earl" 4th October 1827, Mr. Rose, respecting my mortgage upon Sir George Lee's estate." * 1851. HARCOURT v. SEYMOUR. Earl's state The Master next set forth the following document, 12th October and which also had been found at St. Leonard's, and the 1823. The whole of which was in the Earl's handwriting and was ment of his perendorsed by him: "Statement of my property, 12th sonal property. October 1823 : " Supposed amount of my property, 12th October 1823. The Earl's correspondence with Collyer and Frere. £117,900 19 11" The Master then found that the two items of 13,3714 18s. 6d. Four per Cents, and mortgage upon Sir George Lee, 20,000l. contained in that statement, represented the stock and mortgage whereof the trust premises consisted: and that, in many of the letters and documents which had been discovered, there were repeated references, in the handwriting of the Earl, to the trust-funds, as being "trustmoney; " and that, among certain correspondence which had been found and produced by Collyer, were references of a similar nature; and, amongst other things, there was the following letter, from the Earl to Collyer, dated the 3rd March, 1822: "I have not yet come to a final deter * The Five per Cents. remained unconverted at the date of this letter. mination respecting my Five per Cent. stock ;* but I feel inclined to accept of the offer of Government, in which case I conclude, it will not be necessary for me to go to London;" and another letter from the Earl to Collyer, dated 14th March 1822, containing this passage: "Upon reverting to my stock account, I find that I have in the Five per Cents. 19,7201. 7s. 8d.; trust-money ditto, 12,7351. 38. 4d." And in a postscript of a letter from the Earl to Collyer, dated the 22nd October 1822, there was this passage: "If I understand this matter, the interest of the 12,7357. 3s. 4d. trust-money and the 11071. 4s. 2d. was received to 6th July, when these two sums were vested in the New Four per Cents. Query whether it would not be expedient to transfer them into the Three per Cents., as well as the 30181. 17s. 4d. now in the Old Four per Cents. In short, I feel the situation of landed property to be so much worse than persons in London are aware of, that I see a strong inclination in the public and, particularly, in Opposition, to throw a part of the burthen upon the fundholders. Under this impression, therefore, I look to the Three per Cents. as the only stock that can be considered as exempt. from any financial operation, and consequently secure." The Master then found as follows: That the Earl wrote a letter, to Collyer, dated 2nd December 1822, which was partly as follows: "It is fortunate for me that I have other resources besides landed property, for I am sorry to say I hear nothing but complaints from the farmers, although the rents of some of my tenants have been reduced above 301. per cent. within the last four years:" That the Earl wrote a letter, to Collyer, dated the 14th February 1824, in the following words: "As I have a good reason to believe that it is a part of the Chancellor of Exchequer's plan of finance to reduce the Four-and-a-half per Cents to Three, or, at least, to Three-and-a-half per Cents, I very much wish you, without loss of time, to consult, with your adviser in money matters, whether it might not be expedi 1851. HARCOURT v. SEYMOUR. |