him, and the court will not inquire whether or not he obtained any fortune with the wife: but where he is chargeable by his own act during the coverture, he shall be chargeable as if he had been acting in his own right, and the conscience of the wife being bound to execute the trust, his conscience also shall be bound. It is not necessary to refer to cases for the purpose of shewing that where a person is a party to a transaction which is in its nature a breach of trust, he can derive no benefit from it, and that if he gets possession of the property he is responsible: as in Crane v. Drake, 2 Vern. 616, where a person dealt with an executor for the assets, and the court considered him as consenting to and contriving a devastavit, and would not allow him to retain the assets so obtained.

Now, if the assets of Charles Crymble the elder had remained in the hands of Shaw it would be impossible to doubt that the executor of Shaw would be answerable for that property. But it is said that, having handed over the property to Charles Crymble the younger, it is a case of a mere tort, or a mere breach of trust. Now, it has been the constant habit of courts of equity to charge persons in the characters of trustees with the consequence of a breach of trust, and to charge their representatives also, whether they derive benefit from the breach of trust or not; as, where there are two trustees and one does not receive the money, but acts in such a way as makes him liable for the acts of the other: such is the case of Scurfield v. Howes, 3 Bro. Ch. Cas. 91-there Barnardiston never received the money; his assets never were benefited; but Howes, the other trustee having become insolvent, he was charged with the money actually possessed by Howes; because the money is, in the judgment of the court, in the hands of both the trustees. Now here, the money came into the hands of (I will say) Mr. and Mrs. Shaw, (and this is perhaps to say a great deal

1

for Mr. Shaw, for the dealing appears to have been with
him :)-however the money coming into their hands, he has
the controul over it, and he parts with it to Charles Crymble
the
younger, under a contract for his own benefit, and agrees
on the other hand that the names of himself and his wife
shall be used by C. C. for the purpose of recovering the
choses in action: so that Shaw cannot be considered in a
better light than Barnardiston was in that case: Barnardiston
has less controul over the money than Shaw had here. I
therefore consider Shaw as having become possessed of this
property, as having it under his controul, as knowing it to
be bound by a trust, and yet the property is not forth-com-
ing to answer that trust. Then according to the rules of
equity, his assets are clearly responsible.

A

I have thus far gone on the general principle, whether there be in this case any ground to impute blame to Shaw in the transaction with Charles Crymble or not. But it is clear that this was not an honest transaction. First of all, Mr. and Mrs. Shaw were not responsible to C. Crymble in any character; there was no administration, except pendente lite; the question with respect to the property remained undecided; it was the subject of the suit commenced by C. G. himself. And instead of indemnifying themselves as they might have done, by compelling him to proceed, they compromise it with him, pay the money, and get a release. They chose rather to settle with Charles Crymble so, than to let the suit go on if it had gone on, the rights of all the parties would have been discussed; but they did not choose that, and they must take the consequence: they must suffer any inconvenience that arose from their mistake, supposing it to have been a mistake. But it is very probable that there was a good disposition in Mrs. Shaw towards Charles Crymble her son, and that Mr. Shaw thought he could settle his accounts more easily with him than with another. I mention this

1803.

ADAIR

V.

SHAW.

1803.

ADAIR

υ.

SHAW.

only with respect to the supposed hardship in this case, and not that I think it alters the principle. However honestly Shaw had acted, he must be held responsible; otherwise there would be no security. He was a person clothed with the character of a trustee, and being so, he was bound to act in execution of the trust according to the terms of it. If such a person acts honestly in the trust, a court of equity will struggle hard to exonerate him, though he has been mistaken: but here, Shaw acted quite out of his trust; and it is impossible for him to complain; because he and his wife might have indemnified themselves: if they had paid over the whole to the administrator cum testamento annexo, they would have been discharged: but they did not think fit to do so.

Under these circumstances therefore, without going into any question as to the effect of the bond taken by the ordinary (which is not proved in the case, but which I must take for granted was executed by Shaw, the ordinary being required by statute to take sufficient bond, and a bond from the wife being nothing) all that is necessary for me to declare is, that according to the true construction of the will of Charles Crymble the elder, the plaintiffs are entitled to have the clear residue of the personal estate of Charles Crymble the elder applied in the purchase of lands to be settled uponthe plaintiff Charles Adair for life, with remainder to trustees to preserve contingent remainders, with remainder to T. B. Adair, with remainder over in the manner directed by the will, and the sixth of the codicils.

Reg. Lib. xlix. 283. "Let the master take an account of "the personal estate of said Charles Crymble the elder, "which came to the hands of Francis Shaw and the de"fendant Anne his wife the administratrix pendente lite of "the said C. C. the elder, or to the hands of either of them "in the life-time of the said Francis Shaw, and to the "hands of the said Anne Shaw since the death of her said "husband, and also an account of the debts and funeral "expenses of the said C. C. the elder and the expenses of "the said administration paid by the said Francis Shaw and "Anne his wife in the life-time of the said Francis Shaw, "and by the said Anne Shaw since his death, distinguishing "in such account what came to the hands of the said Francis "Shaw and Anne his wife or either of them in the life-time "of the said Francis Shaw, and the payments made during "the same period, from what hath come to the hands of "the said Anne since the death of the said Francis and the 66 payments made by her since his death. And in such account, let the master make all just allowances, and parti"cularly an allowance to the defendants for legacies of the "said testator actually paid by the said F. Shaw and Anne "his wife, although the said Anne Shaw, as administratrix "pendente lite had no authority to pay the same; and also "an allowance to the estate of the said Francis Shaw for "so much (if any) of the personal estate and effects of the "said testator, as actually came to the hands of F. Shaw "and his wife or either of them in the life-time of the said "Francis, and which was paid or delivered over by his exe66 cutors to the said Anne after his death, or possessed by "her after his death; and let the master ascertain the clear "balance of the personal estate of the said testator with "which the said Francis Shaw shall appear to have been "chargeable as aforesaid after the allowances as aforesaid. "And let the master inquire whether any part of the per"sonal estate of the said testator C. Crymble remained in

1803.

ADAIR

V. SHAW.

1803.

ADAIR

V.

SHAW.

“ specie at the time of the death of the said F. Shaw or was kept by him separate and distinct from his own property, "and whether the same or any part thereof came to the "hands of the said Anne Shaw after his death or to the hands "of the executors ofthe said Francis Shaw, and declare that "whatever shall appear on the master's report to have come "to the hands of the said Anne Shaw after the death of the "said Francis Shaw is to be answered by her; and that "whatever shall appear to have come to the hands of the 66 executors of the said Francis Shaw, is to be answered by "them, and that whatever shall appear by the accounts to be "chargeable on the said Francis Shaw, ought to be answer"ed out of his assets in due course of administration; and "if the executors of the said F. Shaw shall not admit assets "sufficient for that purpose, let an account be taken of the

personal estate of the said F. Shaw and of his debts, "funeral expenses and legacies, and let his personal estate "be applied in payment of what shall be so found due out "of such assets: And let the master inquire whether the "said F. Shaw and Anne his wife or either of them, gave 66 any and what security to the ordinary as required by law "for her duly accounting for the effects of the testator on "her obtaining said administration pendente lite and state "the same specially to the court: and let the plaintiffs be at "liberty to apply to the ordinary touching the same, as they "shall see fit; and in case it shall appear that any effects of "the testator remained in specie in the hands of the said "F. Shaw at his death, which have come to the hands of "the said defendants his executors, declare that the said "defendants his executors are to account for the same, and "let the master take an account thereof, and charge them "therewith accordingly, and let what shall be found due "from them and the said Anne Shaw on the account afore"said be paid by them respectively into the bank of Ireland "with the privity of the accountant general to the credit