The controul of the committee over a lunatic's estate will not generally be interfered with, except in case of improper conduct on the part of the committee: and therefore a petition presented on behalf of a joint-stock company, in which a lunatic was a shareholder, praying for a reference, whether it would be for the benefit of the lunatic that the amount due in respect of his shares by virtue of a call which had been made by the company, should be paid out of his estate, which petition was opposed by the committee, was dismissed with costs.

This was the petition of one of the public registered officers of a joint-stock company, which had been formed in 1834, under the title of The Commercial Bank of England.' Mr. Hitchon was the holder of 905 shares in the company. In 1840, the affairs of the company were found to be in an unsatisfactory position, and several meetings of the shareholders were held, at which it was determined to wind up the concern. Mr. Hitchon attended those meetings, and seconded and supported several of the resolutions. A commission of lunacy afterwards issued against Mr. Hitchon, and he was found to have been a lunatic from the 31st of October 1842. In October 1843 it was agreed that a call of 30s. per share should be made upon all the shares in the company, which call had been paid by more than three-fourths of the shareholders, and those who had not paid it were, most of them, bankrupt or insolvent or otherwise unable to do so. The petition represented that the monies which were still due from the company exceeded 15,000l., and that this call was necessary to meet the demands upon them. It prayed, that it might be referred to the commissioner to inquire

whether it would be for the benefit of the lunatic as a partner or shareholder in 'The Commercial Bank of England,' that 30s. per share upon all the shares held by him, should be contributed out of his estate towards payment of the debts of the company.

Mr. Bacon, in support of the petition, contended, that as the lunatic was a partner in the banking company, his partners in that company were entitled to present such a petition, and that it was for the interest of all parties that the debts of the company should be paid, and that none of their creditors should be driven to the necessity of obtaining judgments or adopting any legal proceedings against them. He cited Ex parte Dikes (1).

Mr. James Parker and Mr. Stinton, for the committee of the person and estate of the lunatic, insisted that the committee was the only party entitled to ask for a reference, whether any particular proceeding would be for the benefit of the lunatic; that this petition was irregular; and that it did not appear that any of the liabilities of the company were of such a nature that they would ever be enforced against the lunatic's estate.

The LORD CHANCELLOR said, that it was not usual for such applications to be made, except by the committee, by whom the interests of the lunatic were represented. That there was no imputation of the committee being influenced by any improper motive, and he did not see why the Court should interfere to direct such an inquiry, unless it was asked for by the committee.

M.R. Jan. 20.

Petition dismissed, with costs.

}

THE MARQUIS OF HERTFORD v.
LORD LOWTHER.

Legacy Interest-Report-Order reserving Interest.

A. by will bequeathed to B. all the goods, plate, money at the bankers, linen, horses, carriages, &c. he might die possessed of, at M. or elsewhere in L, on condition that B. gave 3,000l. sterling to the Casa d' Assicurazione, to make an annuity for the life of C. C. elected to take the 3,000l. instead of the annuity. The Master, on a reference to (1) 8 Ves. 80.

him, found that A, at his death, was possessed at M. and elsewhere in L, of divers goods, chattels, Polish and Austrian certificates, bonds, money at his bankers, carriages, horses, &c.; and the Master also found that C. was entitled to interest on her legacy. It was afterwards determined that the Austrian and Polish certificates did not pass to B. by the will; by a consent order, made after the confirmation of the Master's report, a sum of 3,000l. was directed to be paid to C. in satisfaction of her legacy, and the question of interest thereon was thereby reserved :Held, that it was a pecuniary legacy, and that C. was entitled to interest thereon at 4l. per cent. per annum, from the expiration of one year from the death of the testator, although the delay in payment arose from the bequest of the articles being disputed by the residuary legatee.

Semble the subsequent reservation of interest did not, of itself, affect the Master's report of prior date, finding the legatee entitled to interest on her legacy.

This was the petition of Angelique Felicité Borel, praying payment by the defendants, the executors of the late Marquis of Hertford, out of the property in their possession, belonging to the Countess de Zichy Ferraris, of the interest upon a legacy of 3,000l. down to the 3rd of May 1845. By a decree made in the cause, dated the 15th of November 1842, the usual reference was made to the Master as to the legacies and annuities given by the will and codicils of the late Marquis of Hertford, and the Master was directed to compute interest at 4l. per cent. per annum, on the amount of the legacies, &c. where no interest was mentioned. The Master, by his separate report, found that the testator, by a codicil to his will, "gave to the Countess de Zichy Ferraris, over and above all other bequests and legacies, all the goods and chattels, plate, linen, money at the bankers, or stock in the Monte di Milano, horses, carriages, &c., he might die possessed of, at Milan, or in Lombardy, on condition she gave 3,000l. sterling to the Casa d' Assicurazione, to make an annuity for the life of the petitioner, A. F. Borel, late of Milan, and that her husband gave her power to hold all this as her own separate property." The Master further found that, at the time of the

death of the testator, (1st March 1842,) he was possessed at Milan, and elsewhere in Lombardy, of divers goods and chattels, also of Polish and Austrian certificates, bonds, and other moveable securities, which passed by delivery, and plate, money at the bankers, (but not in the Monte di Milano,) linen, horses, carriages, and other effects. The Master also found that the petitioner was entitled to interest on her legacy. Assets having been admitted by the executors, and the Master's report confirmed, an order by consent was afterwards made for payment of the legacy of 3,000l. less the legacy duty due thereon, out of property given to the Countess in the hands of the executors, and the question of interest was then reserved. The Court decided that the Countess was not entitled to the Polish and Austrian certificates (1). The legacy was not paid till the 3rd of May 1845.

Mr. Koe, for the petitioner, A. F. Borel, contended that the petitioner was entitled to be paid interest on her legacy, the same being a pecuniary one, and the delay having arisen from the disputes as to the Countess's right to the Austrian and Polish bonds and other effects, the property of the testator; and that the executors ought to pay the same out of the property bequeathed to the Countess, in their hands, at the rate of 41. per cent. per annum, from the date of the testator's death.

Mr. Kindersley, for the residuary legatee, the Marquis of Hertford, after observing that the arrangement entered into between the residuary legatee and the Countess was, that the bonds, money at the bankers, and other matters specifically given to the latter, should be transferred to her, contended that the gift to the petitioner was not properly one of a pecuniary legacy carrying interest; and that the question of interest was one to be settled between the petitioner and the Countess, and that, at all events, he was not bound to pay the interest.

Mr. Turner, for the Countess de Zichy Ferraris, contended, that if the Court had determined that the Polish and Austrian certificates belonged to the Countess, the case would have been very different to the one before the Court; that there was no equity against her in favour of the petitioner, in respect of the property bequeathed to her (1) Vide 13 Law J. Rep. (N.s.) Chanc. 41.

consisting of mere specific articles, and that the legacy was only a conditional one, and not what was properly termed a pecuniary legacy.

Mr. Follett appeared for the executors of the late Marquis of Hertford.

In the course of the argument, the MASTER OF THE ROLLS observed, that he did not see how the right of the petitioner to interest could now be disputed without an order had been obtained, discharging the order confirming the Master's report, notwithstanding the reservation of the question of interest on the legacy by a subsequent order: and his Lordship afterwards decided that the legacy to the Countess could not be considered a legacy of specific matters given on condition, but that it was a legacy subject to the payment of a particular sum of money to an assurance office to secure an annuity for the petitioner; that the petitioner preferred having the sum bequeathed for the purchase of the annuity at once paid out to her, instead of an annuity purchased therewith, which she was entitled to do; that the annuity, if it had been purchased, would have accrued to the petitioner from the death of the testator, but that as she elected to take the principal of 3,000l. itself, she was only entitled to interest at 4l. per cent. per annum, from the expiration of one year after the testator's death; and that the funds which belonged to the Countess were liable to the payment of that interest.

Demurrer-Parties-Costs.

The defendant demurred to the bill for want of parties, and the plaintiff submitted to the demurrer, and added these parties by amendment. The defendant again demurred to the bill for want of equity, and for want of parties. On the argument of the second demurrer,-Held, that the Court was at liberty, with reference to costs, to look at the first demurrer.

The defendant demurred to the bill for want of parties, and the plaintiff submitted to the demurrer. The defendant again demurred for want of parties, and the Court, after argument, reserved the question to the

hearing of the cause. The demurrer would have been overruled without costs, had there not been a former demurrer; but, in consequence of the former demurrer, it was overruled with costs to a certain amount.

Some of the defendants in this case demurred to the bill for want of parties. The demurrer was submitted to, and the plaintiffs remedied the defect complained of by amending the bill. amending the bill. The defendants again demurred to the bill for want of equity and for want of parties. The cause now came on to be heard on the second demurrer. After argument, the Vice Chancellor overruled the demurrer or want of equity, and for want of some of the parties whose presence the defendants required, and reserved the question as to the want of the other parties until the hearing of the cause. The only remaining question was as to the costs.

Mr. Russell, Mr. Wigram, and Mr. C. Hall, for the plaintiffs.

Mr. Bethell and Mr. Hubback, for the defendants.

KNIGHT BRUCE, V.C.-There was a demurrer for want of equity, and for want of parties. The demurrer for want of equity fails. The demurrer as to some of the parties fails also. As to the other objections, I have not given any opinion, as, considering the nature of this case, I have thought it right to overrule them now, without prejudice to any question which may be raised by the answer, or at the hearing of the cause. The question now is as to costs. If I am not at liberty to look at the former demurrer, I overrule this demurrer without costs. If I am at liberty to look at the former demurrer, without imputing blame to any one, I think it is due to the plaintiffs, who have been subject to a demurrer already for want of parties, that I should overrule this demurrer with costs not exceeding 256. If the costs exceed 251. I reserve them. I will ascertain the practice of the Court as to whether I have the power to look at the former demurrer.

The case was not mentioned again, but it is understood that the costs to the amount of 251., were allowed to and accepted by the plaintiffs.

Settlement-Receiver-Separate Estate of Wife-Indemnity of Trustees-Costs.

By settlement on marriage of A. with B, certain trust funds were assigned to three trustees in trust, to pay the annual income to B. for life for her separate use, with remainder to A. for his life, with remainder, as to principal monies, to the children of the marriage. The trustees, on the application of A, and with the consent of B, invested the trust funds, in contravention of the trusts of the settlement, in the purchase of certain copyhold houses, in which A. claimed an interest under an agreement entered into by him with the vendor, previously to the date of the purchase by the trustees. A. had also expended a large sum in repairing and rebuilding part of the houses, and, from the time of the purchase until recently, had been allowed to receive the rents, and pay them over to his wife. Differences having arisen between A. and the trustees, the latter directed their solicitor to receive the rents, and to commence an action against one of the tenants, who refused to pay the rents to them.

On bill filed by A. against the trustees and his wife and children, praying an injunction against further proceedings in the action, and the appointment of a receiver; a motion for a receiver on his behalf was refused, with costs.

One of the trustees, who lived at a distance, in the country, from the other two trustees, appeared, by separate counsel, on the motion, and asked for his costs, which were ordered to be paid him.

The bill was filed to enforce the specific performance of an alleged agreement for granting a lease of four houses, in York-row, Kennington, to the plaintiff, by the defendants, who were the trustees of a settlement executed on the marriage of the plaintiff and his wife, the defendant, Dorothy Wiles, and seeking a sale of those houses, subject to such lease, and in case of a surplus arising from the sale, after making good the original purchase-money, then that the plaintiff might be repaid the amount expended by NEW SERIES, XV.-CHANC.

him in the reparation thereof. The bill also prayed the appointment of a receiver.

In 1833 the plaintiff William Wiles intermarried with his present wife, the defendant, Dorothy Wiles, whereupon a settlement was executed; and thereby a sum of 4,000l., belonging to the wife, and a sum of 2,000l., due on the plaintiff's bond, were assigned to the defendants, Cooper, Gresham and Weston, as trustees, upon trust, during the joint lives of the plaintiff and his wife, to pay the interest, dividends and annual produce to the wife for her life for her separate use, without power of anticipation; and after the death of either of them, to pay the dividends to the survivor, with remainder, as to the trust funds and securities, to the issue of the marriage, as the wife should appoint. There were issue two children, who were made defendants. Shortly after the marriage, the plaintiff contracted with the owner for a grant to him of a renewed lease of four houses, being Nos. 17, 18, 19, and 20, York-row, for a term of thirty-three years, from Midsummer 1833, the existing leases of those houses being about to expire. The plaintiff had expended the sum of 1,2007. on one of those houses. In 1833, and before the lease could be executed, the owner of the houses died, and the trustees of his will offered the houses, which were of copyhold tenure, for sale, upon which the plaintiff applied to the trustees to purchase the same with part of the 4,000l. secured upon the trusts of the settlement, which they consented to do, although in contravention of the trusts of the settlement. In July 1834, a further purchase of four small copyhold houses was made by the trustees at the plaintiff's request, at the price of 3451. Both purchases were completed on the 26th of April 1836. In 1835 the plaintiff effected great repairs and additions to the other houses in York-row, and rebuilt two of those houses, at an expense altogether of 3,000l. and upwards. Until July 1845, the plaintiff had been allowed to receive the rents of the houses on behalf of his wife, as the same accrued due, but in that month the trustees directed their solicitor to receive the rents then and thereafter to become due in respect of the houses. A long correspondence ensued between the plaintiff and his wife and their solicitor, on their behalf, on the one side, and the trus

S

tees and their solicitor on the other side, which terminated with the solicitor of the trustees giving notice to the tenants of the houses to pay their respective rents to him, and the commencement of an action against Bright, one of the tenants, for the recovery of the rent then due from him. The solicitor of the defendants the trustees, in an affidavit filed by him in opposition to the affidavit of the plaintiff filed in support of his application, for the appointment of a receiver and for an injunction to restrain the trustees from proceeding in the action against Bright, or taking any other proceedings at law to recover payment of the rents of the houses, stated, that the whole of the purchase-monies for the houses, as well in Pleasant-row as York-row, were paid out of the trust funds, with the concurrence of the defendant Dorothy Wiles; that a fiat in bankruptcy was issued against the plaintiff in the month of August 1836, and the assignees, chosen under such fiat, claimed the houses in Yorkrow and Pleasant-row, on behalf of the creditors of the plaintiff; but, after some investigation by the assignees into the facts, and the plaintiff declaring that he had no interest therein, except under the trusts of the settlement, the assignees abandoned all claim to the houses, and, by consent, the fiat was superseded in May 1837; that he believed there never was any agreement, as alleged by the plaintiff, between the trustees, or any of them, either before or after the dates of the two contracts for purchase, to grant a lease of any part thereof to the plaintiff for a term of thirty-three years, inasmuch as he, the deponent, had been' consulted by the trustees in all transactions relating thereto; that the plaintiff, ever since the completion of the purchases, had collected the rents of the houses, as the agent of the trustees; and that accountscurrent, relative to the rents, had been regularly made out by the deponent up to the month of August 1844, and principally from statements and accounts furnished by the plaintiff, but that the plaintiff had refused to sign the last of such accounts-current of rents, although he admitted the same to be correct, and had, as the agent of the trustees, made the whole of the receipts and payments mentioned therein. It appeared, also, from the affidavit of the solicitor of the trustees, that, in December 1837, the plain

tiff and his wife executed a deed of indemnity to the trustees, on account of the liabilities they had incurred in making the two purchases of the copyhold premises respectively.

Mr. Shebbeare, in support of the motion, contended, that considering the large expenditure that had been made by the plaintiff on part of the property, and the improvement thereof out of his own pocket, and the agreement that had been entered into between him and the late owners thereof, a receiver ought to be appointed, and the plaintiff allowed to propose himself as the receiver without salary.

Mr. Chandless, for the defendant Dorothy Wiles, stated her desire that the plaintiff should be appointed receiver, and that the objection of the trustees to allow the plaintiff to continue to receive the rents arose from the plaintiff's refusal to sign the last account-current, relative to the rents, although she, who alone was entitled to receive the rents for her separate use, had actually admitted the correctness of that account, and signed the same as an acknowledgment of its correctness.

Mr. Kindersley and Mr. S. Miller, for two of the defendants, the trustees of the settlement, insisted on their right, under the existing circumstances, to receive the rents of the houses, the plaintiff actually claiming a right in part of the property adversely to his wife and children, and contending that the houses in Pleasant-row were not part of the trust estates; and they insisted that no ground had been shewn by the plaintiff to justify an interference with their receipt of the rents.

Mr. Glasse, for the other trustee of the settlement, who lived in the country, at some distance from town, also objected to the plaintiff's application.

The MASTER OF THE ROLLS.-The trustees in this case hold the property in trust for the wife for life for her separate use, and they are entitled to enter into possession with a view to indemnify themselves on account of their having exceeded the power given them by the settlement. The singularity of the case is, that the husband should make the present application. It naturally occurred to the parties, that as there existed no power in the settlement, enabling the