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testator meant, that they should be clothed at his death with possession of his real estate, and the management at least of his property; and he probably thought, those who would be ultimately entitled to the beneficial interest would more actively promote the benefit of the trade than those who had the mere dry interest of trustees. I do not mean that the trustees were devested of all control, *and the power of resuming possession in case of misconduct. But the true meaning was, that, while the sons carried on the business, as they ought, the trustees should permit them to have the possession and management.

Then were the trustees at liberty to give the sons a sum of money, as a reward for their agency; and does that cut off from them the power of severing, incident to joint-tenants in general ? If this Court, considering, that it was for the benefit of the annuitant and legatees, that the trade should be carried on, and that they could not be paid, unless it was carried on by some one, having a consideration paid for the management, had given directions for that purpose, in a question between the two sons, the interest of no third persons committed, could it be said, they were not at liberty to exercise all the rights incident to the nature of the property ? Unless shut out by express intention, or the direction of this Court, what is there to prevent them from severing the joint-tenancy? Next, was it reasonable that they should mean to act according to such power, if they had it? If they were at liberty to enter, not as mere agents to the trustees, having nothing to do with the concern, except in that character, and distinctly stating themselves so in all their transactions, but as partners, trading as such, one advancing more than the other, one taking out more than the other, and from day to day severing their interests as to more or less of profit or capital, and becoming more or less creditors or debtors of the partnership, and liable to third persons, is it natural, if the testator, intended they should have such dealings in partnership, or they thought proper to place themselves in such a situation, to impute to them, that they did not mean to trade as all other persons *would, as being equally entitled to the capital and profits? The facts are, that immediately upon the death of the testator they held themselves out to all intents and purposes as partners. They dealt so in all their transactions, which appears by their receipts, invoices, &c. For a time there was the control of the trustees; but continued only up to the point thought necessary for the safety of the

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trustees ; till they were satisfied that it was no longer necessary with reference to those objects, for which only they were intended, or were bound to execute it; for beyond those objects, all was at the discretion of the sons. The fair import of the evidence is, that each of them thought the other at liberty to take money out of the property, without reference to any other object than the safety of the annuitant and legatees : though differing as to the prudence of it; for the complaint was, that the misapplication of William was likely to defeat that object. The proposition aims, not at preserving anything of survivorship, but at reducing the effect of all the acts done to this; that they were to take the property, equally to be divided between them, both capital and profits; and after the death of William, the defendant's idea clearly was, that the representative of William was entitled equally; proposing an equal division of the profits, a valuation of the property, purchased by the defendant, of the stock, the houses engaged in trade, &c. considering the whole as to be distributed equally between them.

But it is then said, this is all mistake; and, which is more important, contrary to the trusts of the will. That is not so: for, salris the annuitant and the legatees, there is no trust, which it was not competent to these two persons, affecting only their own interests, to alter, as they thought proper, with reference to the *nature and quality of their own interests. Entering into partnership, dealing without the superintendence of the trustees, their various transactions afford decisive evidence, which it would be too dangerous to permit one to contradict after the death of the other, that they meant to be considered tenants in common of the interest they took in the trading part of their father's concern; and it would be extraordinary to refuse an account of the whole, on the ground, that it proceeded upon a mistake of the law. I do not think so, but I ought to be very sure of that, after transactions for 12 years; showing that William lived and died in the persuasion, maintained by the acts of the other, that he was entitled to one-half; and after his death the defendant acting upon the idea; which is the rational inference from the nature of the property and the transactions till his brother's death ; who was, during his whole life, entitled to sever his interest.

Therefore, without contradicting the ground taken by the Master Of The Rolls, my opinion is, that under all the circumstances of this case the two sons of the testator are to be considered as tenants in common of his property, embarked in trade, from the time they

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were let into possession ; including as well the capital as the profits ; for, though there may be cases of distinction between them, the course of dealing for so many years ought to be taken as evidence, that they meant to sever the joint-tenancy as to both. The decree must therefore be altered accordingly.

1806. Vur. 24, 25,



L.C. [ 13 Ves. 136]


(13 Vesey, 136—139.) Deed set aside, as obtained by fraud and undue influence by a keeper of a house for lunatics from a person under his care; as within the general principle arising from the relation of guardian and ward, attorney and client, &c. The object of this bill was to set aside a deed, as having been obtained by fraud and under undue influence from the plaintiff and Lapworth Mills, deceased, by the defendants. The effect of the deed as to Mills was a conveyance of his whole property in favour of the defendant Proud, and his daughter: Proud being at the time the keeper of a house for the reception of lunatics, in which Mills was for many years a patient, having been in that unhappy situation from his childhood : but, according to the representation of the defendants, he had recovered ; and was at the time the transaction took place resident in the house, not as a patient, but as a boarder, from choice; and proposed *in the way to remunerate the kindness with which he had been treated. With respect to the plaintiff, the deed was impeached as a direct fraud, under the circumstances ; being prepared by the defendant's attorney; the plaintiff's interest being falsely recited, either by fraud or mistake; and the effect being to make him purchase what was his own already.

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The Solicitor-General, and Mr. Hart, for the plaintiff, insisted upon the particular circumstances of this case, appearing in evidence, and upon the face of the deed, as establishing, that it was improperly obtained; but chiefly relied upon the general principle, that a court of equity would not permit a deed, made under such circumstances in favour of the keeper of a mad-house, to stand ; admitting, that no such case could be produced. * * *

Mr. Alexander', Mr. Fonblanque, and Mr. Leuis, for the defendants.

(1) Cited by KAY, L. J., Liles v. Terry [1895] 2 Q. B. 679, 685, 65 L. J. Q. B. 34, C. A.


PROUD. [188]


The principle upon which a transaction is set aside upon the relation between the parties, as between guardian and ward, has been extended to the case, where all accounts were previously settled, and the connection was at an end : the transaction appearing to have grown out of the influence arising from the relation.

In Lady Sanderson's case (1) all these cases were considered ; and Lord HARDWICKE would not permit the transaction to stand, even after the relation had ceased, as it took place under undue influence. So, independent of all fraud, an attorney shall not take a gift from his client, while the relation subsists ; though the transaction may be, not only free from fraud, but the most moral in its nature. The judgment in Wells v. Middleton (2) went wholly beside any thing that could affect moral character.

This case appears under very remarkable circumstances. Suppose, this person not to have been a patient in the house, but at large, and capable of transacting his own affairs : yet employing an attorney, recommended by the person who was to take the benefit of the transaction, that attorney receiving the deeds, taking them with him for inspection, and then making this deed, reciting, that this plaintiff took an interest quite different, and much less than he had a right to enjoy, if there were no more in the case, the transaction *could not have stood against this plaintiff; who was clearly over-reached himself, and was made the instrument of over-reaching another in the course of the same transaction.

But upon the other ground it is impossible to permit this transaction to stand. Upon the evidence this person was from his birth of a diseased intellect, and attempted to destroy himself, when a boy. He was carried to the house of the defendant; and was, I believe, kindly treated. If he had been a man, who could go out of the house, when he pleased, and deal with his own property, as he pleased, if he had remained there as a patient, instead of a boarder, this gift could not have stood a moment. Then what is the effect of the deed ? It places him in the condition of an absolute lunatic. It shows him to be in that situation, in which, if he was placed in it by the evidence, the deed could not stand an instant. The moment the deed was executed he was subject to the control of the house: much more than if he was there from the effect of indisposition; as in that case, if he should recover, he would be delivered

(1) Sanderson v. Closse, cited in (2) Cited in Hatch v. Hatch. See 7 Morse v. Royal. See 8 R. R. 338. R. R. 195 9 Ves. 20+).

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from that situation. But under these circumstances, he could not be delivered : his property being transferred to these persons : not even a life-rent remaining to him. He seems to have been sensible of the kindness of this family; which he proposed to remunerate : but what he proposed, according to the evidence, was to remunerate them at his death. But the effect of this deed was, that he was in the condition of a lunatic: his income, upon the declaration of the defendant, to be doled out to him; and he was to be fed and clothed, as they pleased. This deed must therefore be declared fraudulent and void.

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(15 Vesey, 273—277.) Receiver of the personal estate of the testator, not passing his accounts and paying in the balances, deprived of his salary; and charged with interest, not upon each sum from the time it was received, according to the strict rule, applicable to a receiver of annual rents and profits, but as an executor would be charged.

Distinction between an executor and a receiver as to allowances for charges and trouble. A MOTION was made, that the receiver of the personal estate of the testator may be discharged, with costs, for not having passed his accounts, and paid in the balances.

Sir S. Romilly, in support of the motion : Mr. Hart, for the receiver.

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There is a General Order of some time standing, that, if a receiver does not regularly pass his accounts, *and pay in his balances, he shall not be allowed any salary whatsoever. Why that order is dispensed with in any case I do not know; and I desire that it may be enforced in future. There are several instances of receivers, who, having obtained an order for maintenance, have done nothing more; not passing any account for twenty years; and the instant the infant attains the age of twentyone an account is passed with him : and the Court has no information upon the subject. That could not happen if the order was enforced. Receivers are under a great mistake in supposing they are not to pay in their balances until some person obtains an order

(1) Harris v. Sleep (1897] 2 Ch. 80, 66 L. J. Ch. 511, 76 L. T. 458.

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