woman, the trustees were interposed to protect her interest. But supposing the trust to have been executed by the statute in the trustees and their heirs; still, according to Doe v. Simpson (a), Lord Say and Sele v. Lady Jones (b), and Bagshaw v. Spencer (c), it would only be executed for the lives of the annuitants, or at the utmost of the tenants for life, and upon the death of the survivor of them there would be a resulting trust to the heir at law; or, more properly speaking, the heir would take the undisposed of residue to his own use. And although the estate is given to the trustees and their heirs, and trusts only created as to part, yet the remainder shall not go to the trustees in exclusion of the heir, because the heir shall take whatever is not expressly devised away from him; and therefore in Challenger v. Sheppard (d), which was a devise to trustees and their heirs in trust for A., the only question made was, whether A. or the heir at law took the fee; but not whether the trustees did. And so in Cruise (e), the rule is laid down, that where the legal estate is given to a trustee, and part only disposed of for particular trusts, the trust results to the real owner. Again, in Lloyd v. Spillet (f), Lord Hardwicke said, "Where a trust is declared only as to part, and nothing said as to the rest, what remains undisposed of results to the heir." The same doctrine will be found in Randell v. Bookey(g), Emblyn v. Freeman (h), and Arnoldv. Chapman(i). As to the inference arising from the testatrix naming them her cousins, it is too vague without other circumstances to indicate an intention; and the cases (a) 5 East, 162. (c) 1 Ves. 142. (b) 3 Bro. P. C. 458. 8 Vin. Ab. 262. 1812. SMITH against KING. (e) 1 Cr. on R. Prop. 475. (g) Prec. in Ch. 162. (f) 2 Atk. 150, (h) Prec. in Ch. 542. (i) Ves. 108. 1812. SMITH against KING. cited did not rest upon that alone; and besides here she also names other relations in her will, and amongst them her heir at law. Then as to there being an express devise to Ant. Isaacson the heir at law, she could not have done otherwise, if she meant that he should only take for life in the first instance; and though a man devises lands to his heir for life, yet that shall not hinder but that he shall have the reversion too (a). With respect to what is said of the unfitness of women to become trustees, it may be answered that they were her relations; and it was more natural to appoint them her trustees, than the husband of one, or strangers; but surely it cannot raise such a necessary implication as to disinherit the heir at law. Lord ELLENBOROUH, C. J. That is but a small matter in the argument, only they were certainly better objects of bounty than of trust. But if they are trustees, for what are they trustees? I own I have no doubt that it is a clear devise of the remainder, subject to these specific charges, and that no trusts are created. BAYLEY, J. It is not suggested that they are trustees for any purposes which they are to execute; and there are no words of trust in the will. Per Curiam, Judgment for the Plaintiff. Holroyd declined insisting on the adverse possession. (a) Prec. in Ch. 163. BRETT 1812. BRETT and TOMLINSON against CLOSE. Tuesday, Nov. 17th. ASSUMPSIT upon two promissory notes, dated the A warrant of the Lord Chan and cellor for the and 10th of March 1809, made by the defendant one John Dent, jointly and severally, one for 4807., the other for 1401. 5s. 4d., payable to the plaintiffs or their order one month after date. The defendant pleaded non-assumpsit, and at the trial before Lord Ellenborough, C. J., at the Middlesex sittings after last Hilary term, a verdict was found for the plaintiffs, subject to the opinion of the Court upon the following case: commitment of ceiver by the certified against him, is only in the nature of a civil execution; therefore where being aper in a suit in pointed receiv Chancery, was in custody of the officer un der such warrant, and the defendant, in order to pro cure his dis The plaintiff Brett having become a purchaser of the interest in one-fourth part of certain real and personal property, devised by the will of one Shelley to his son T. Shelley, respecting which a suit in Chancery was pending between the said T. Shelley and the other devisees in the will, in which suit the plaintiff Tomlinson acted as solicitor for T. Shelley, and made various payments and disbursements, which were still unpaid; it was proposed by Brett that Tomlinson should take a half-w share of his purchase, to which Tomlinson acceded. suit went on, and Dent was appointed, under an order of the Court, receiver of the estates in question. Afterwards the plaintiff Brett was made a party to the suit, and Dent, as receiver, having possessed himself of rents to a considerable amount, which he retained in his own charge, joined with him as The promissory notes to the plaintiff, who was a party to the suit in Chancery, and his solicitor, who sued out the warrant, for the amount of the debt and costs, and was thereupon discharged by the direction of the solicitor: Held that the discharge was a legal consideration for the notes, and that an action might be maintained on them; and although there were other parties to the suit in Chancery, who did not concur in the discharge, and therefore D. remained liable to be taken again, yet the consideration had not failed; and that it was no objection to the validity of the notes, that the sum given to cover costs exceeded the costs due, no fraud being intended. X VOL. XVI. hands 1812. BRETT and Another against CLOSE. hands without duly paying over the same, proceedings were taken at the instance of Brett, as a party in the suit, to compel him to pass his accounts; and on the 21st of November 1808 the Master certified that 4711. 19s. 5d. was the balance in his hands for rents received up to that time. He afterwards received further rents, making an additional balance of 981. 5s. 11d., as admitted by an account in his own hand-writing, which he sent to Tomlinson, dated 30th January 1809; making together a total due from him of 570l. 5s. 4d. Orders, for payment of the certified balance into the Bank by Dent, were obtained at the instance of Brett; but not being complied with, the Lord Chancellor's warrant, directed to the warden of the Fleet or his deputy attending the Court of Chancery, was sued out by Tomlinson, which, reciting a former order for the commitment of Dent, ran in this form: "These are therefore "in pursuance thereof to will and require you upon 66 receipt hereof to make diligent search after the body "of the said John Dent, wheresoever you shall find him, "and him safely convey to his majesty's prison of the Fleet, "there to remain until my further order," &c. Tomlinson acted as solicitor for Brett and himself in the whole of these proceedings, which were left entirely to his management, and various payments, fees, and disbursements were consequently made, by him in the course of the same. On the 10th March 1809 the officer attending the Court of Chancery appointed to execute the warrant, went down to the place where both Dent and Tomlinson resided, and applied to Tomlinson as the solicitor for instructions, who desired him to proceed in a regular course. However, on Dent being taken into custody, he made proposals to Tomlinson by letter for his liberation; upon upon which Tomlinson agreed, with Dent and the defendant Close, whom Dent proposed as his surety, that Tomlinson should cause Dent to be discharged out of custody by giving directions to the officer for that purpose, upon Dent and Close giving the notes in question, (which would become due about the time that the accountantgeneral's office was expected to open, and which included in their amount both the certified and subsequent balance, together with the sum of 50l. to cover costs,) and also giving their joint written engagement, that Dent's father, or a third person, who should be satisfactory to Tomlinson, should join in the said notes on the following day. In pursuance of this agreement the notes and the other written engagement were given by Dent and Close, as his surety, and Dent was immediately discharged by the officer, by virtue of directions given to him by Tomlinson for that purpose. Dent has ever since been at large, and no steps have been taken in the said suit against him in consequence of his having been so discharged. The costs which the plaintiffs were put to in the proceedings to compel Dent to pass his accounts and pay the balance, amount to 371. 3s. 8d.; which include the sum of 107. 2s. 4d. paid to the Master's clerk, for fees incurred in passing Dent's accounts, which he should have paid, but Tomlinson was obliged to pay, in order to obtain the report, without which he could not go on with further proceedings. Dent, soon after giving the said notes, became a bankrupt, and his estate is not expected to pay more than seven shillings in the pound, and no part of the money mentioned in the notes or either of them has been paid by Dent or Close. The question was, whether the plaintiffs were entitled to 1812. BRETT and Another against CLOSE. |