Brown v. Gordon.

pose. If the court should be adverse to the plaintiff on this argument, it is then contended that the testator has by his will created an express trust for the payment of his debts out of his estate, and that the real estate must be so applied.

In considering the former of these propositions, and the effect of the payment of the interest on the note by the bankers, it is essential to determine in what character the interest was paid. If it was paid by them in the character of agents for the persons interested in the real estate of the testator, those persons will be bound by such payment; but if the bankers paid the interest not in the character of agents, but in the character of debtors to the plaintiff, then the estate of the testator cannot properly be affected by those payments; and, in that case, the liability of the real estate will rest exactly in the same manner as if the payments had not been made. Before it can be determined that the bankers were agents for this purpose, it must be considered how the agency for this purpose (if it existed) must be created. It might be created by express authority or by implication. Express authority in this case there was none. On the contrary, it is excluded by the circumstances that the affairs between the bank and the testator seems to have been settled immediately after his decease, and that subsequently no claim was made, or liability existed between them on either side. If the agency existed, therefore, it must have been created by implication. The only implication for such purpose which can exist in the present case must arise out of the relation of the parties, and the only circumstance that is, or can be, referred to, as creating this implied agency or authority is, that one of the partners, and therefore one of the persons paying the money, was also one of the trustees of the real estate of the testator, and the sole executor of his will. It does not follow, because a man fills various characters at the same time, that the act done by him in one of those characters has reference to, or can affect him in, another of those characters. It is every day's experience that a person made a defendant to a suit in chancery as beneficially interested in the subject-matter may, at the same time, be the representative of a deceased person also similarly interested in the subject-matter of the suit; but, if this defendant has not been made a party in respect of his representative character, the estate of the deceased person will not be affected by the decision in that suit.

In this case, unless the bare circumstances of one of the partners being the executor of the testator's will, and' one of the devisees in trust of his real estate, can make all his acts as a banker referable to him as a trustee wherever such a reference can have any effect, it would be impossible to hold that the estate of the testator is bound. It clearly was not supposed by Henry Buckland Lott that it was in his character of executor that he made these payments. They appear in the accounts of the bank - they do not appear in the accounts of the executor. It is obvious that Mr. Lott made them for his partners only, and the firm considered themselves to be alone liable for this debt. No reasonable doubt can exist but that in the settlement of accounts between themselves and the estate of the

Brown v. Gordon.

testator this liability, in common with many others of a similar description, was taken into account in settling what was due to or from the testator in respect of the partnership. It would, therefore, be with great pain if I should find myself by the settled decisions on this subject, compelled to imply any such agency.

The cases, however, have no such tendency, and, in truth, the case of Way v. Bassett decides this question the opposite way. The debt at the death of the testator was gone at law. It remained, no doubt, a debt due from his estate in equity, because equity considers it to be unjust that where two or more persons are jointly liable, the death of one should throw the whole debt on the other parties jointly liable with the deceased debtor, and thus exonerate his estate; and this, as was justly urged in argument, is the principle in Wilkinson v. Henderson, Winter v. Innes, Ex parte Kendall, and Way v. Bassett, where it is expressly stated; but even if the principle were applicable here, and if as between the partners the estate of the testator had never borne its share, how would the plaintiff be entitled? Christopher Flood, the survivor of the three partners, died in March, 1843, and the bill was not filed till July, 1849. Even, therefore, on this principle the statute would, without any assistance arising from this equitable doctrine, have barred all remedy against the personal estate of the testator in six years after the death of the surviving partner, that was in March, 1849. In every way, therefore, that I regard it, I am of opinion that the right to go against the personal estate of the testator had ceased prior to the filing of the bill.

If the personal estate of the testator is not affected, neither is the real estate, unless it be by the trust that he has created, and as I am of opinion that the payment of interest may be wholly disregarded as far as relates to the personal estate, it follows on the same principle, and for the reasons I have stated (which are equally applicable to both sorts of property) that this claim will not affect the real estate. If, therefore, the real estate of the testator can be fixed with the payment of this sum of money, it must be, as I have already stated, in respect of the form in which he has devised his real estate, by making it subject to the trust for the payment of his debts. The trust is undoubtedly clear and distinct; but I am of opinion it will not entitle the plaintiff to enforce the payment of this sum of money against the testator's real estate, and, in truth, it is not now a debt recoverable against that estate.

The case stands thus-At the testator's death there was not any debt at law, but an equity existed by which the plaintiff was entitled to stand in the place of the surviving partners against the testator's estate. This is what was decided in Way v. Bassett. The plaintiff has thought fit not to avail himself of that equity, but has, in lieu thereof, accepted the surviving partners, who were liable to him at law, as his only debtors. Can it be properly argued that in this state of things he is a cestui que trust, under the trust created by the testator's will; and if he be so, that having neglected all claim against the estate from June, 1833, to July, 1849, when the bill was filed, a period of sixteen years, he can now seek to enforce this equity by

In re Harrison's Trusts.

means of this trust? I am of opinion that he cannot. He has, from the carliest period, since the death of the testator, till the bankruptcy of the surviving partners, accepted the partners as his debtors, and has proved his debt against their estate as if they were his sole debtors.. This, alone, according to the doctrine in Thompson v. Percival, would discharge the testator's estate.

But it is further to be observed, that by accepting them as his debtors, and taking no step against the testator's estate, he has made it impossible for the court, if he relied on this equity, to place the parties interested in the estate of the testator in the same position in which they would have been if this equity had been earlier enforced. If, at the death of the testator, the plaintiff had insisted on payment out of the assets of the testator, the effect would have been, that the estate would have been recouped by a contribution from the surviving partners in the settlement of accounts between them, and no injustice would have been then occasioned. No such contribution would now be possible, and it does not appear to me to be consistent with the principle under which this court administers its equity to allow the plaintiff to claim the benefit of one which he has repudiated for sixteen years, and when the position of the parties is so materially altered that it could not be enforced against the defendants without doing manifest injustice to them.

I am of opinion, therefore, that the trust for the payment of debts, created by the will of the testator, does not entitle the plaintiff to the relief he asks, and that, consequently, his case fails, and his bill must be dismissed, with costs.

In re HARRISON'S TRUSTS.1

November 24, 1852.

Trustees Appointment - Power-13 & 14 Vict. c. 60— Breach of Trust.

A trustee going out of the jurisdiction is not thereby incapable, unwilling, or unable to act within the terms of the power to appoint new trustees, and an application to the court is proper. But if a breach of trust has been committed, this court, though it sanctions the appointment of a new trustee, will make no order as to the trust property.

THIS petition was presented by Thomas Bownass and Richard Batty, praying that twenty Leeds and Bradford Railway shares, standing in their names and in the name of Henry Harrison, might be vested in the petitioners, and transferred to them without H. Harrison joining in such transfer, and that the dividends might be paid to the petitioners. It also asked that R. Bownass might be

1 22 Law J. Rep. (N. s.) Chanc. 69.

In re Harrison's Trusts.

appointed a trustee jointly with the petitioners, in the place of H. Harrison.

James Harrison, by his will, dated the 29th of April, 1846, gave all his personal estate to the petitioners and H. Harrison, whom he appointed his executors upon trust to invest the produce in any of the public stocks, funds, or securities of the United Kingdom, or any real securities in England or Wales, with liberty to vary the investment, and stand possessed thereof upon certain trusts therein mentioned. The will also provided that the surviving, continuing, or retiring trustee or trustees should appoint other persons to supply the vacancy "if the trustees thereby appointed, or any or either of them, should die in his lifetime, or should at his decease renounce or be incapable of acting in the trusts, or if any trustee should at any time thereafter die or become unwilling, or unable to act in the trust." The trustees, after the decease of the testator, invested a part of the personal estate in the purchase of twenty 50l. shares in the Leeds and Bradford Railway Company, each of which had been guaranteed 107. per cent. on the leasing of the line to the Midland Railway Company; but that company subsequently purchased the Leeds and Bradford Railway, and gave the shareholders an option of taking shares in the Midland Railway Company, and to take these shares in reduction of the purchase-money, and to issue new shares in the Midland Counties Railway Company, if the purchase-money for the Leeds and Bradford Railway Company was repaid to them within a reasonable time. This the petitioners desired to accept, as they considered it advantageous for the cestui que trust; but as H. Harrison had gone to Australia without saying where or leaving any address, this petition was presented to ask the sanction of the court. It was also asked that Richard Bownass might be appointed a trustee in the place of H. Harrison.

S. Smith, in support of the petition. The trustees were not justified in purchasing railway shares with the trust funds; it was therefore a breach of trust; but this court will not refuse to enable the trustees to carry out an arrangement beneficial to the cestui que trust. The words of the power to appoint new trustees make this application necessary, as the words "unable to act" are not considered to apply to a trustee merely going out of the jurisdiction. In re Watts, 20 Law J. Rep. (N. s.) Chanc. 337; s. c. 4 Eng. Rep. 67; and by the 13 & 14 Vict. c. 60, s. 35, this court has power to vest the shares in the trustees.

THE MASTER OF THE ROLLS. I think I may make an order for appointing new trustees; but I shall refuse to make any order respecting the transfer of the shares, lest by so doing I should sanction what might turn out to have been a breach of trust.

A cause was at issue before the Chancery Procedure Amendment Act and the orders made under it came into operation, but no evidence had been taken. The court, in the exercise of its discretion, on the motion of the defendants, the plaintiff opposing, ordered that the evidence in the cause should be taken according to the method prescribed by the act and orders.

One

ISSUE was joined in this cause on the 18th of May, 1852. of the witnesses had been examined de bene esse, on account of his great age and infirmity. No interrogatories, however, had been filed for the examination of witnesses generally in the cause, and no other evidence had been taken. This was a motion on behalf of the defendants, that the evidence in the cause might be taken under the new system.

Bacon and Stevens, for the motion.

Russell and Bazalgette, for the plaintiff, resisted it. The sections of the 15 & 16 Vict. c. 86, and the orders of the 7th of August, 1852, relating to the new method of taking evidence, were referred to.

STUART, V. C. The provisions of the act of parliament of the last session, which have been referred to in the argument, and the provisions of the general orders of the court for effectuating the purposes of that act, and made under its authority, have imposed upon the court in this case, and are likely to impose upon it in cases of a similar nature, a task of very great difficulty. The defendants ask here, that the evidence upon the matters in issue between themselves and the plaintiff in this case, may be taken according to a system and practice hitherto new and untried. The plaintiff on the other hand resists that application, and asks the court to allow the evidence to proceed under the old system, he having filed his bill at the time when he had reason to expect that he would have the means of proving his case under the old system and under no other. I am to decide upon the construction of the act, the orders, and the facts brought before the court to guide its discretion, whether it is proper that the application should be granted.

The plaintiff, in the first place, resists the application upon the ground that nothing has been shown in support of this application sufficient for the court to grant it; nay, if the court were to grant it, it must be a motion of course in every other case pending before the

1 22 Law J. Rep. (N. s.) Chanc. 70; 16 Jur. 1012.