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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 property, as having it under his controul, as knowing it to be bound by a trust, and yet the property is not forth-coming to answer that trust. Then according to the rules of equity, his assets are clearly responsible.

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. C. 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 Vol. L

Na

li

1803.

ADAIR

v. 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 upon the 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.

1803.

ADAIR

V. Shaw

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 G. 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 6 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

payments made by her since his death. And in such ac

count, 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 exe

cutors to the said Anne after his death, or possessed by 16 her after his death; and let the master ascertain the clear 6 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

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 of the 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 “ 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

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

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1803.

ADAIR

V. Shaw.

“ of this cause, subject to the further order of the court ; " and if they shall admit assets of the said Francis Shaw, " then let what shall appear to be coming on the account " aforesaid from his estate be paid by the said defendants “ his executors in like manner : and if they shall not ad"mit assets, then let what shall appear to be in their hands “ of his assets be paid by them in like manner: and in “ taking the said accounts let the master distinguish what

was due for principal and interest of the personal estate “of the said testator Charles Crymble the elder at the " time of his death, from interest accrued after his death, “ and what was due for principal of debts, and interest, ac66 crued previous to his death, from interest accrued after his

death: and declare that the interest of debts accrued after C testator's death, and also the interest of legacies ought " to have been paid out of the interest of the personal estate “ accrued after testator's death, and that the clear surplus “ which ought to have been applied in the purchase of “ lands and settled as aforesaid consisted of the principal of " debts and effects of the said testator and interest and “ produce thereof accrued at the time of testator's death, “ after deducting thereout the principal of debts due from “ him, and interest accrued due thereon at the time of his “ death, and the funeral expenses, expenses of administra “ tion, and other just expenses, and the principal of “ legacies given by his will: and inasmuch as the said “ Charles Crymble the younger appears to have executed “ such release to said Francis Shaw as in the pleadings men“ tioned, the master is not to take any account of the in“ terest of the surplus of the testator's personal estate acu crued after the testator's death in the life-time of the " said Sharles Crymble the younger beyond the sum necessa“ ry for payment of his debts and legacies accrued during the u same period, And declare the plaintiff Charles Adair en" titled to interest of the clear surplus from the time of the

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