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1812.

SMITH against KING.

woman, the trustees were interposed to protect her inte-
rest. 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 un-
disposed 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), Emblynv. Freeman(K), and Arnoldv.Chap-
man(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

(@) 5 East, 162. (6) 3 Bro. P. C. 458. 8 Vin. Ab. 262.
(c) i Ves. 142. (d) 8 T. R. 597.
(e) i Cr.on R. Prop. 475.

(f) 2 Atk. 150.
(g) Prec. in Ch.162. (1) Prec. in Ch. 542. (i) 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.

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1812.

Brett and Tomlinson against Close,

Tuesday, Nov, 17th.

cery, for the

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ture of a civil

ASSUMPSIT upon two promissory notes, dated the theorene ha 10th of March 1809, made by the defendant and cellor for the

commitment of one John Dent, jointly and severally, one for 4801., and

a person, apthe other for 1401. 5s. 4d., payable to the plaintiffs or pointed a retheir order one month after date. The defendant pleaded Court of Channon-assumpsit, and at the trial before Lord Ellenbo- non-payment

of a balance rough, C. J., at the Middlesex sittings after last Hilary certified aterm, a verdict was found for the plaintiffs, subject to the gainst him, is

only in the naopinion of the Court upon the following case:

execution; The plaintiff Brett having become a purchaser of the therefore where interest in one-fourth part of certain real and personal Doinbeing api

pointed receive property, devised by the will of one Shelley to his son er in

er in a suit in

Chancery, was T. Shelley, respecting which a suit in. Chancery was in custody of

the officer un pending between the said T. Shelley and the other de- der such warvisees in the will, in which suit the plaintiff Tomlinson tant, and

defendant, in acted as solicitor for T. Shelley, and made various pay- order to proments and disbursements, which were still unpaid; it charge, joined was proposed by Brett that Tomlinson should take a half- surety in two share of his purchase, to which Tomlinson acceded. The promissory suit went on, and Dent was appointed, under an order of plaintiff, who

was a party to the Court, receiver of the estates in question. After- the suit wards the plaintiff Brett was made a party to the suit, his solicitor,

Chancery, and and Dent, as receiver, having possessed himself of rents who sued out

the warrant, to a considerable amount, which he retained in his own 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, what the sum given to cover costs exceeded the costs due, no fraud being intended. Vol. XVI.

X

hands

with him as

notes to the

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. 198. 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. lld., 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 5701. 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 “ 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

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

same.

1812.

BRETT and Another

against CLOJE.

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 501. 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 101. 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

x2

recover:

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