1864. CHAMBERS บ. CRICHLEY. But this is certain, that the Defendant sold and assigned that patent to the Plaintiffs as a valid one, and having done so, he cannot derogate from his own grant. It does not lie in his mouth to say that the patent is not good. I am satisfied that the Defendant has taken advantage of that patent and has made an improvement upon it; but I am of opinion that he is not at liberty to do so. I must, therefore, grant an injunction to restrain the Defendant from selling stoves made on the principle of Wright's patent. NOTE.-See Crossley v. Dixon, 10 H. of L. Cas. 293, and the cases therein cited. 1863. Dec. 22. A testatrix directed her executors (who were also her residuary legatees) to invest such a sum in the Stocks or on freehold secu rity as would THE VICKERY v. EVANS. HE testatrix gave her real and personal estate to the Defendants John Evans and William Drury, upon trust thereout to invest such a sum of money in or upon the public stocks or the funds or securities of the United Kingdom, or upon the security of freehold or copyhold hereditaments in England, in the names of my trustees, as when so invested will produce, by and from produce 150l. the dividends or interest to arise from such investment, a year, and she bequeathed the annual sum of 150l., " and I authorize my trustees the 150l. to A. to alter, vary and transfer such investment for or into for life, and after his death, other stocks, funds or securities of the like nature, as she gave the often as they may think proper, and do and shall stand security on which the investment possessed should have been made to B. The executors invested 3,530l. at four-and-a-half per cent. on a mortgage for five years of freeholds, which were let for a long term on ground rents producing 176l. per annum. The value of the freeholds was about 4,344/., but the property on which the rents were secured was of much greater value :— Held, that the investment was not improper. But held, that if the payment to the Plaintiff should be delayed, by the inability of the trustees to call in the mortgage for five years, the Plaintiff was entitled to have the mortgage sold and the deficiency paid by the executors. possessed thereof and of the proceeds thereof, upon The testatrix gave the residue of her real and personal estate to John Evans and William Drury, whom she appointed executors. The testatrix died in December, 1861, and her will was proved by the executors. After the death of the testatrix, her executors, in order to meet the 1507. a year, invested 3,530l. upon a mortgage of ten freehold messuages and buildings in Colville Square and Colville Terrace, West Notting Hill, in the county of Middlesex, and by an indenture dated the 22nd day of October, 1862, and made between Mr. Tippett of the one part and John Evans and William Drury of the other part, these freehold messuages were conveyed to John Evans and William Drury, their heirs and assigns, subject to the indentures of lease therein mentioned, by way of mortgage for securing the sum of 3,5301. with interest thereon at the rate of 51. per cent. per annum, reducible to the rate of 41. 5s. per cent. per annum on punctual payment, and subject to a provision to the effect, that if the mortgagor should pay such in terest 1863. VICKERY บ. EVANS. 1863. VICKERY v. EVANS. terest at 41. 5s. per cent. and duly perform the covenants and agreements therein contained, then the mortgagees should not call in the principal sum before the 22nd day of October, 1867, and that the mortgagor should not be at liberty to pay off the same before that day. The executors, by a deed poll dated the 21st of January, 1863, declared that they would stand possessed of the mortgage debt of 3,5307., and of all other the stocks, funds and securities in or upon which the 3,530. might at any time thereafter be laid out or invested, upon the trusts contained in the will for securing the 150l. to Francis William Johnston Vickery, and after his decease for the benefit of the Plaintiff. The property mortgaged was let for ninety-nine years from 1861 on ground rents, amounting in the whole to 1761. This was made up of eight ground rents of 187. each, and two of 167. each. The Defendant's answer stated that the annual value of each of these ten houses was 1001. a year. The Plaintiff, by this bill, insisted that the mortgage was not a proper investment to satisfy the trust in bis favor; that the messuages and buildings on which the 3,5301. and interest had been secured did not yield a sufficient rental adequately or permanently to secure the 1507. a year, and were wholly inadequate to secure the principal sum of 3,5301. He alleged that if the mortgage were paid off and invested in Consols, at the present or average price thereof, such investment would be wholly insufficient, in respect either of capital or income, to answer the trusts of the will in favor of the Plaintiff. The Plaintiff also insisted, that the discretion was vested in the trustees, and was intended by the testatrix to be exercised by them for the benefit of their cestuis que trust and not for their own benefit. He alleged that the executors had refused to exercise a proper discretion in respect of the investment, but had selected a scanty security, carrying a high rate of interest, for the purposes of the Plaintiff's trust bequest, in order to increase the amount of their own residue, at the expense of the Plaintiff. The Plaintiff by his bill also insisted that he was entitled to have a sum of 5,000l. £3 per Cent. Consolidated Bank Annuities set apart to answer the trust bequest in his favor. The bill prayed, first, that the real and personal estate of the said testatrix might be administered. Secondly, that it might be declared that the mortgage security was not a proper investment to answer the trusts by the will declared in favor of the Plaintiff and his father, of and concerning the annual sum of 150l. and the investments to produce the same, and that the trust bequest might be properly secured, and that a proper sum of Consolidated Bank Annuities might be purchased to answer the same, under the direction of the Court. There were four valuations given in evidence, which estimated the value of the property as follows:-4,000l., 4,0501., 4,5767. and 4,7521., producing an average of about 4,3441. Mr. Selwyn and Mr. Druce for the Plaintiff. First, upon the construction of the will, this was not a proper investment. The trustees were not justified in exercising their discretion for their own benefit, to the prejudice of the rights of their cestuis que trust. It was the interest of the trustees to reduce, as much as possible, the capital producing the 150l. a year, for the purpose of increasing 1863. VICKERY v. EVANS. 1863. VICKERY v. EVANS. their own residue, and, by investing at the highest rate of interest possible, to diminish the capital necessary to produce the annuity. According to their contention, if they could have obtained a security at 10l. per cent. they would have been justified in taking it, although the effect would have been to give the Plaintiff a capital of no more than 1,500l. Secondly, the rule of the Court is, that trustees are not justified in lending more than two-thirds of the value on freehold lands; Stickney v. Sewell (a); or more than one-half on house property; Norris v. Wright (b); Stretton v. Ashmall (c); Lewin on Trusts (d). Here is an investment of 3,5301. on house property of the value of about 4,000l., producing a rental of no more than 1767. a year, and six of the houses are still unlet. Even taking the Defendant's own valuation, the advance was far beyond what the rules of the Court justified. Again, payment of the mortgage money cannot be demanded for five years, and the Plaintiff might thus for several years be kept out of his money; this was an improvident and improper stipulation on the part of the trustees. Mr. Elderton for the annuitant. [The MASTER of the ROLLS. I do not consider this as being an investment on house property worth 1767. a year, but on the whole value of the houses and property. The only question is this :— are the trustees entitled, by lending at a high rate of interest, to reduce the amount of the capital to which the Plaintiff (a) 1 Myl. & Cr. 8. (c) 3 Drew. 12. |