Plaintiff was ordered peremptorily to go to commission in the vacation": these words, without any addition, and taken in connection with the effect of the general rule of practice, would have bound him to execute the commission during the vacation; and, therefore, he could not be entitled, as of course, to an order giving him liberty to execute the commission in the following term.

[88] The Master of the Rolls [Lord Gifford]. By the order which the Defendant seeks to discharge, the Plaintiff was bound to go to commission in the vacation : and the sole effect of the words, which create the alleged irregularity, was, to enable him to go on, during Michaelmas term, with the execution of the commission. In fact, he did not go to commission at all; and, in Michaelmas term, he gave the usual rules for passing publication: so that no delay has taken place.

The order of the 14th of June could not have been used for the purposes of delay: for if he had so executed the commission as not to have passed publication in Michaelmas term, the conditions of the peremptory order would have been broken.

There is no printed authority upon the point: but the registrars are of opinion, that this order is not irregular, and that it does not give the Plaintiff longer time than he was entitled to have under his peremptory undertaking.

Under these circumstances, I must refuse to discharge the order.

The motion was refused with 40s. costs.

[89] HORNBY v. HUNTER. Rolls. Jan. 24, 31, 1826.

[Affirmed, 5 Russ. 149. See Tomlin v. Tomlin, 1841, 1 Hare, 236.]

In a suit against Defendants, who were the personal representatives both of a testatrix, who died during coverture, and of her husband, praying an account of her separate estate, and a declaration that certain sums of stock, which stood, and always had stood, in her name, constituted part of that estate, although the husband and his executors, during a long period of years, had uniformly acknowledged these sums to be, and dealt with them as being, part of her separate property; and although strong evidence was adduced by the Plaintiff, which was not met by any evidence on the other side: yet the Court refused to make the declaration at the original hearing, and only referred it to the Master to take the account generally, with special inquiries founded upon the evidence. Where an inquiry as to debts has been directed before decree, and the Master has reported that there are no debts, the decree at the original hearing must nevertheless direct an account of debts.

By a settlement made in 1763, previous to the marriage of John Hunter and Ann Dick, John Hunter covenanted with certain trustees, and with his intended wife, to give, grant, and for ever renounce to her, for her separate use, the sum of 100,000 rupees, which, together with all the profits, interest, and produce thereof, were to be at her sole disposal, and subject to be bequeathed by her last will. In a subsequent part of the instrument, he agreed to settle a further sum of 60,000 rupees, the whole of which was to be received by her at his decease, in case she should survive him; and one half of it, if she died in his life-time, was to be at her disposal by will or writing. The marriage was solemnized; and, in 1784, Mrs. Hunter made a will, which commenced with the following recital: "Whereas I am seised, or possessed of, or well entitled to, a house and divers warehouses and buildings thereto belonging, situate and being at Bombay in the East Indies of the estimated value of £3000; also to the sum of £6000, secured to me by the bond of James King; also to £1000, secured to me by the bond of Edward Bott; also to one other bond for £1000; also, to divers sums of money which I have at different times laid out and invested in the purchase of bank stock and 3 per cent. consolidated bank annuities, which are now standing in my name in the books of the governor and company of the bank of England; also, to two navy bills which cost me [90] £1454; and to other sums arising from cash and growing interest; the whole of which my said estate I estimate at the value of £28,000 or thereabouts; which worldly estate, and all other the estate and property whatsoever that God hath been pleased to bless me with, I do, by this my last will and testament, pursuant to and according to the powers and authorities to me reserved and given in and by an indenture of settlement made

on my marriage, &c., bearing date on or about the 9th day of December 1763, and by virtue of the said indenture, and of all other powers and authorities whatsoever to me reserved or given in anywise howsoever, direct, appoint, give, and dispose thereof in manner following." She then, after bequeathing some legacies, gave the residue of her property to her husband for life, and after his death, upon certain trusts for the benefit of her grandchildren and their issue; and she appointed her husband, along with Thomas Hunter (then Thomas Holmes), and John Hornby, her executors.

Her husband had assisted her in preparing the will; and in the original draft of it there were many alterations in his hand-writing.

Ann Hunter died in 1786. Her husband proved her will, and received the interest and annual proceeds of her property till his death in 1802. Thomas Hunter and John Hornby then proved her will. These gentlemen were also the executors of John Hunter, and the former of them was his residuary legatee.

At the time of John Hunter's death, there were, and, ever since, had been standing in the name of Mrs. Ann Hunter £10,040 bank stock, which had been increased by a bonus to £12,500; upwards of 2500 navy 5 per cents.; upwards of £1000 5 per cent. loyalty loan; and £5000 consolidated 3 per cents. There stood also in the [91] name of John Hunter £20,000 consolidated 3 per cents., which had always been regarded as belonging to Mrs. Hunter's estate.

Thomas Hunter, who, after John Hunter's death, took the chief share in the management of the property, continued, for more than twenty years, to treat these sums as part of Mrs. Hunter's estate; so describing them in formal accounts rendered by him, and concurring with John Hornby in paying the dividends to the persons entitled under her testamentary disposition. At length, in 1823, he refused to do so any longer; and, in his character of residuary legatee of the husband, claimed to be beneficially entitled to a large portion of the stock.

Under these circumstances, some of the persons, who took interests under Mrs. Hunter's residuary bequests filed their bill, praying that the trusts of her will might be carried into execution, that the specified sums of stock might be declared to be part of the capital of her separate property, and that the usual accounts of her estate, debts, and legacies might be taken.

Thomas Hunter insisted, by his answer, that Mrs. Ann Hunter's separate estate had been blended with her husband's property, and did not consist of the items specified in the bill; that, at the time of her death, she was entitled to her separate use only to 100,000 rupees, with a power of disposal over an additional sum of 30,000 rupees; that, beyond the sum sufficient to pay these 130,000 rupees, all the stock standing in her name, as well as the other property which she had considered as hers, belonged to her husband; that John Hunter had often expressed his dissatisfaction with his wife's will, and declared it to be a nullity; that he had proved it, and that the Defendant had afterwards concurred in proving it, only in order that they might be entitled to receive [92] the dividends; and that, in permitting the dividends to be distributed for a series of years, according to the directions of that will, he, the Defendant, had been actuated by a consideration of the circumstances of the persons interested, and by a wish to promote family harmony.

It was proved by very voluminous evidence, that the property in question had, up to 1823, been uniformly acknowledged, both by John Hornby and Thomas Hunter, to be Mrs. Ann Hunter's separate estate, and dealt with as such.

Upon a reference directed before the hearing, the Master had reported that there were no unsatisfied debts of the testatrix.

Mr. Heald, Mr. Treslove, Mr. Sugden, and Mr. Knight, for the Plaintiff John Hornby, and other parties in the same interest, insisted, that, upon the evidence, they were entitled to an immediate declaration, that the sums specified in the bill, or at least those which had all along stood in the name of Ann Hunter, were part of her separate estate, and that the accounts ought to be taken upon the footing of that declaration. It would be a great hardship upon the Plaintiffs, to be subjected to all the expence and delay of again making out in the Master's office what they had already established beyond all doubt. They were entitled to the declaration, because they had proved their case; and it was of great importance to them to have it, both with a view to the simplification of the accounts, and to the saving of time and of expence.

Mr. Horne, Mr. Shadwell, and Mr. Barber, for Thomas Hunter. The Plaintiffs

are entitled to an account of Mrs. [93] Hunter's separate property; but, in this stage of the cause, they are entitled to nothing more. What are the parts constituting that separate estate, depends on the settlement; and the mode in which she or her executors may have dealt with certain property, cannot confer on it a character which it does not derive under the terms of the deed. Stock does not become her separate property by standing in her name. The acts of John Hunter and Thomas Hunter, after her death, cannot cause that to pass subsequently by her will, which did not pass by it in 1786. Even regarding the acts of these gentlemen as evidence, that they at the time believed the sums specified to belong to Mrs. Hunter's separate estate, yet that evidence is not in its nature conclusive; the acts may be explained away, or they may be rebutted by proofs of a contrary nature. The Defendant has not gone into evidence, because to have done so, would have been premature, and would have occasioned unnecessary expence. He could not have had a declaration that the sums in question were not a part of her separate estate; he must have submitted to account generally; the taking of that account would have opened the whole question; and it is, therefore, in taking the account, and not till then, that each party should adduce his evidence, with respect to the items of which this lady's separate property is alleged to have consisted.

The Master of the Rolls [Lord Gifford]. The Plaintiffs, who are persons claiming under a disposition made by Mrs. Hunter, pray against Thomas Hunter, who is one of that lady's personal representatives, not only a general account of the effects and property which were settled to her separate use, but an immediate declaration, that certain sums of stock which stand, and have long stood in her name, and another sum of stock standing in her husband's name, constitute [94] part of her separate estate, and are subject to the trusts expressed in her will. On the part of the Defendant, Thomas Hunter, it is not denied that the Plaintiffs are entitled to the general account sought by the bill; but he insists, that the Court ought not, in this stage of the cause, to make the declaration which is prayed. The bill, he says, is in its form a bill for an account against an executor; the usual mode of obtaining that relief is by a decree that the account shall be taken in the Master's office, it is contrary to all practice for the Court itself to take any part of the account in the first instance; and to make the declaration, would be to take in effect one part of the account here, and to refer the rest to the Master. He adds further, that, relying on the means of defence afforded him by the usual course of procedure, he has not entered into evidence as to the matters to be comprehended in the proposed declaration, because he conceived that the proper stage of the cause for adducing his proofs as to all or any part of the items of the account was, when that account should come to be taken before the Master.

The only question then at present is, whether there is sufficient in this case to induce me to deviate from that which is admitted to be the usual practice of the Court, and to make now a declaration as to certain parts of Mrs. Hunter's separate estate.

The Plaintiffs have failed to produce any instance, in which the Court, on a bill of this sort, has in the first instance made a declaration such as is now prayed; though cases must frequently have occurred, where there could be no doubt that certain funds belonged to a testator or an intestate, and with respect to which, therefore, the Court, upon the principle now contended for, ought to have decided in the first instance that such [95] and such property did belong to this or that estate, and to have made a declaration pro tanto, leaving it to the Master to take the rest of the account. However convenient it might be to adopt that mode of proceeding (and I am far from saying, that, in many instances, it might not be convenient), yet until it shall be established by the highest authority, I must look to the usual course of practice and, looking to that course, I cannot make the precedent sought by the Plaintiffs.

The present case has this peculiarity, that Thomas Hunter is the representative of two estates; of Mrs. Hunter's estate, and of her husband's estate. Of that circumstance the Court has notice both from the proceedings in this suit, and from another cause which has been ordered to be brought on to be heard immediately after it. (See Law v. Hunter, 1 Russ. 100.)

With respect to the evidence to be collected from the acts of John Hunter, it is to be remarked, that, under his wife's will, he had a life interest in the property in

question, and that he was entitled absolutely to all of it that was not included in her settled estate. Inasmuch, therefore, as he combined the character of tenant for life of her separate estate with that of actual owner of what was not her separate fund, so much stress cannot be laid on the fact of his having received the dividends of the sums in question during his life, and of his having suffered the greater part of them to remain in her name, as if those two characters had not been united in him.

As to the acts of Thomas Hunter, it is true, that, in his character of personal representative not only of Mrs. Hunter but of Mr. Hunter, he has for twenty years accounted for the dividends of the funds, which the bill [96] claims as that lady's separate property, to the persons entitled under her testamentary disposition; and this, it has been urged, is a sort of estoppel on his part, which will exclude him from being now heard in a court of justice to say, that the funds belong to the estate of another person, whose residuary legatee and executor he himself is. But then it is answered on the part of the Defendant, that, whatever might be the effect of his conduct on the mind of the Court, if he alone were concerned, he cannot, by his acts, estop those, who, claiming under the will of John Hunter, have an interest which intitles them to say, that, let the proceedings of the executors have been what they may, the funds now claimed as part of Mrs. Hunter's estate do, in truth, belong to their testator's assets. And though it may be alleged, that the legatees of John Hunter have little interest in the question, because, even if the personalty should be insufficient for the payment of their demands, his debts and legacies are charged upon his real estate also, with respect to the sufficiency of which to answer every claim, not the slightest exists; yet the legatees are not bound to go at once against that real estate, but have a right to see whether the personal property does not afford an adequate fund.

The whole question in the cause is, what is the amount of Mrs. Hunter's personal estate. I have considered the subject carefully, and have been anxious to discover any precedents that could guide me and it appears to me, that the course, followed during so long a series of years as to constitute the established practice of the Court, has been, that the account is to be taken in the first instance before the Master. As to the observations which have been made on the hardship of being compelled to go into the Master's office to prosecute inquiries of this kind, I have reason to believe that the complaints on that subject have been exag-[97]-gerated far beyond the truth but even if there were delay and expence in the Master's office, it is not for any Judge to say, that such matters shall not be examined in that mode which the constitution of the Court has prescribed. At the same time, I am not prepared to go the length of saying, that it might not be a wise rule, that the Court itself should in many cases determine, in the first instance, whether a particular fund does or does not constitute part of a certain estate.

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Looking at the nature of this case and at the evidence, my opinion is, that I cannot make a declaration to the effect now prayed, but that I must order a reference to the Master, to take the usual accounts, with special directions for him to inquire what constituted Mrs. Hunter's separate estate at the time of her death, of what particulars it consisted at her husband's death, and whether there were any acts of the husband amounting to acquiescence on his part with respect to the separate estate.

In the progress of this cause, a reference has been obtained, to inquire whether there are any debts of the testator; and the Master has reported that there are no unsatisfied debts. The decree, however, must still direct the usual account of debts. The decree operates in some respects as a judgment, by which the creditor, if he does not come in before the Master makes his report, is precluded from all benefit under it, unless he can, by making out a special case, induce the Court to grant him special relief. But an inquiry like that already directed in this cause, and the report made in pursuance of it, do not preclude any creditor. In this stage of the proceedings, any creditor has still a right to come in, and, without making any special case, to have the benefit of the decree.

[98] The decree was as follows :

His Lordship doth order and decree, that it be referred to J. S., the Master, to whom the cause of Law v. Hunter stands referred, to take an account of the separate estate of Ann, the testatrix, in the pleadings of this cause named, come to the hands of the Defendants, Thomas Hunter and John Hornby, or of John Hunter,

in the bill named, her executors, or either of them, or to the hands of any other person or persons, by their or either of their order, or for their or either of their use; in the doing whereof the said Master is to inquire and state to the Court, whether the house and premises at Bombay, in the said testatrix's will and in the pleadings mentioned, constituted part of such separate estate; and the said Master is to distinguish what was the amount of such separate estate at the time the said testatrix made her will, and what was the amount thereof at the time of her death: and it is ordered, that the said Master do inquire and state, whether the said testatrix by her will disposed of any and what property, not being part of her separate estate : and in case the said Master shall find that she did, then it is ordered, that he inquire and state to the Court, whether the said John Hunter, her husband, in any and what manner acquiesced in or assented to the disposition made by the said will of such property, or of any and what part or parts thereof and in case the said Master finds that the said John Hunter did so acquiesce or assent, then it is ordered, that the said Master do take an account of the property as to which he so acquiesced or assented, come to the hands of the said Defendants, Thomas Hunter and John Hornby, or of the said John Hunter, or either of them, or to the hands of any other person or persons, by their or either of their order, or for their or either of their use and it is ordered, that what, on taking of the said accounts re-[99]-spectively, shall appear to have come to the hands of the said Defendants, Thomas Hunter and John Hornby, be answered by them personally and it is ordered, that what, on taking of the said accounts respectively, shall appear to have come to the hands of the said John Hunter in his lifetime, be answered by the said Defendants, Thomas Hunter and John Hornby, his executors, out of his assets; and in case they shall not admit assets of the said John Hunter come to them sufficient for the purposes aforesaid, then they are to come to an account before the said Master, for the personal estate of the said John Hunter come to their hands, or to the hands of any other person or persons, by their or either of their order, or for their or either of their use and it is ordered, that the said Master do inquire and state to the Court, whether any of the debts and legacies of the said testatrix, Ann Hunter, still remain unpaid : and it is ordered, that the said Master do also inquire and state to the Court, whether the funded property in the said testatrix's, Ann Hunter's will, mentioned or standing in her name at her death, or any part thereof, was in any and what manner increased in amount, between the death of the said testatrix and the death of the said John Hunter, and also between that time and the time of filing the bill in this cause, distinguishing such parts of the said funded property as did, from such as did not, form part of the said testatrix's separate estate; and for the better taking of the said accounts, and discovery of the matters aforesaid, the parties are to be examined, &c.; and the Master is, at the request of either party, to state any special circumstances to the Court, with his opinion thereon, as he shall think fit.”

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[100] LAW v. HUNTER. Rolls. Jan. 24, 25, 31, 1826.

See Tomlin v. Tomlin, 1841, 1 Hare, 241; Elmer v. Creasy, 1873, L. R. 9 Ch. 72.] In a suit for an account against an executor, who admits that he has received assets, evidence tending to charge him with particular sums as items of the account, and to show that he has received more than his answer admits, cannot be used at the original hearing, nor entered as read. Under what circumstances, and in what stage of the cause, inquiries will be directed concerning balances from time to time retained in the hands of an accounting party.

John Hunter by his last will, dated in 1802, after bequeathing to his executors Thomas Hunter and John Hornby several sums of £15,000, directed them to invest those sums in the purchase of 3 per cent. consolidated bank annuities, and to stand possessed of the portions of stock so bought upon trust for the several legatees. to whom they were respectively given.

The bill, filed by a person who had a life-interest in one of these legacies, charged, that Thomas Hunter, who had principally acted as executor, and was also the sole residuary legatee, had possessed himself of assets of the testator to a very large. amount; that, towards answering the several legacies of £15,000, he had employed the monies which came into his hands in the purchase of 3 per cent, bank annuities,