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faction of a debt, pretended to be due to themselves. By the collusion of an executor is meant, that a stranger retains the assets with his consent and approbation. Now, here the bill charges, not only that Traill permits Paxton and Co. to retain the sums remitted to them, but that he alleges that they are entitled so to retain. I am therefore inclined to think, that the circumstances of this case bring it within the exception from the rule, that a stranger cannot, in respect of his possession of assets, be made a party to a creditor's bill.

cuted for six years, you may plead the statute of limitations. But this plea is altogether bad; for in it you do not plead the statute, nor do you aver, that you have not promised within six years.

Besides, by answering the bill of revivor, you have submitted to meet the demand, and cannot plead the statute to the amend

ments.

The plea was overruled.

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To the amendments of a bill of revivor and supplement, which was filed in 1821, and amended in 1822, the defendant pleads that the original cause became abated in 1805, and that no proceedings have been since had thereon: such a plea held to be bad.

In this cause a bill of revivor was filed in 1821 against the defendant as the personal representative of Sir Richard Worsley: to which he put in his answer, insisting that the plaintiff was not entitled to have the suit revived, and claiming the same benefit of the statute of limitations as if he had pleaded it.

The bill of revivor was afterwards amended and to the amended bill the following plea was put in :

"This defendant, not confessing, &c., doth plead to all such parts of the said bill as have been introduced into the same, or added thereto by way of amendment ; and for plea saith, that the original cause, by such bill sought to be revived, became abated in the year 1905, and no proceedings have since been had thereon: wherefore," &c.

Mr. Bell and Mr. Pepys, for the plea, cited Hollingshead's Case, and Harris v. Pollard.t

Mr. Hart, contrà.

Vice Chancellor.-There is no doubt, that, if a suit abates, and is not prose

* 1 Peere Williams, 742.

+ 3 P. Wms. 348. Lord Redesdale's Treatise.

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Order for time to answer, obtained as of course by petition at the Rolls, after plea overruled, will be discharged as irregular.

In the above cause, after the plea was overruled, the defendant, by petition at the Rolls, obtained as of course an order for a month's time to answer.

A petition was presented by the plaintiff, that the order for time might be discharged as irregular.

Mr. Skirrow, for the petition, relied on the case of Jones v. Saxby.*

Mr. Pepys, contrà, insisted on the authority of Griffith v. Wood.t

The Master of the Rolls stated, that, among the old authorities of that Court, there were many precedents of orders for time obtained as of course, after a demurrer or plea overruled; and he doubted whether the attention of the Lord Chancellor had been called to these authorities, which were not in print, at the time when he decided Jones v. Saxby.

Mr. Lovat, amicus curie, stated the case of Trimmer v. Baker, in which the subject had been considered by the Vice Chancellor and the Lord Chancellor, and in which they both agreed, that such orders were irregular.

Accordingly, on the authority of Trimm v. Baker, the Master of the Rolls discharged

* 1 Swanst. 194.

+ 1 Ves. & B. 541.

: Law Journal, p. 218,

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By one set of marriage articles, the real estate of an infant, being the intended wife, is settled; by other articles of the same date, the husband settles his estate, creating a charge on it in favour of the wife:Though the wife should afterwards defeat her settlement, the estate of the husband remains bound by his settlement.

A settlement of the wife's chattel real, made during her infancy, is binding on her.

Where a term is created in trustees, charged with portions for younger children, and with the expenses of their maintenance and education till the portions are payable; and afterwards, the trustees are empowered to raise, out of the personal estates, the same portions, with interest at 5 per cent., to accumulate as far as it is not expended in maintenance::- -Held, that the court will not direct out of which fund the portions shall be raised, and that, unless they are raised out of the personal estate, the children will not be entitled to interest.

By marriage articles executed during the wife's infancy, some of her real estates are limited, subject to a power of appointment given to the husband, to the children in tail, as tenants in common; the husband, by his will, devises and appoints all the estates belonging to him, or over which he had any power of appointing, to trustees, upon trusts which are not according to his power, and the first of which is, to raise portions for the younger children:-Held, it being apparent, on the face of the will, that the testator had in view the doctrine of election, that the younger children cannot claim the portions, and also take the estates limited to them by the articles.

By articles of agreement, dated the 24th of March, 1798, and made in contemplation of the marriage of Sir John Trollope and Ann Thorold, Sir John Trollope covenanted to convey, within six months after the solemnization of the intended marriage, certain estates, situate in Northamptonshire

and Lincolnshire, to the use of himself for life, without impeachment of waste; remainder to the use of trustees during his life, to preserve contingent remainders; then, as to the Northamptonshire estates, to the use that the intended wife should, from the decease of her husband, receive out of the rents a yearly rent charge of 600, which, upon a contingency that did not happen, was to be increased to 8001., and which was secured by a term of ninety-nine years; remainder, as to all the estates, to the use of the first and other sons of the marriage in tail male, in strict settlement, and for default of such issue, to the uses which Sir J. Trollope should, by deed, appoint; remainder to the brothers of the settlor; with the ultimate reversion to his right heirs.

By another indenture of the same date, which was executed by Ann Thorold, though she was then under the age of twenty-one years, and to which her father was a party, it was covenated, that a settlement should be made of the wife's estate. By this settlement, a moiety of the rectory of Saltfleetby St. Peter's, some freehold premises at Tedford and Bunkhill, and the entirety of certain copyholds in Fisherton, were to be conveyed to Sir John Trollope in fee. As to all the other freeholds of the wife, the uses were (subject to her father's life interest,) to Sir John Trollope for life, without impeachment or waste; then to trustees to preserve contingent remainders; afterwards to the wife for life; next, to trustees to preserve contingent remainders; then to the use of all and every or such one or more child or children of the marriage, in such proportions and in such manner as Sir John Trollope should, by any deed, executed in a prescribed form, or by his last will, appoint; in default of appointment, to all and every the children of the marriage, share and share alike, as tenants in common in tail general, with cross remainders between them; if there were no children, remainder to such uses as the wife should, by deed or will, appoint, and in default of her appointment, to the use of Sir John Trollope, his heirs and assigns. The articles of agreement further provided, that certain leaseholds, and the moiety of certain copyholds, in which the wife had a reversionary interest expectant upon the

death of her father, should be settled to the same uses as had been declared of the lastmentioned part of her freehold estates, so far as the rules of law and equity would permit.

The marriage between Sir John Trollope and Ann Thorold was, shortly after, duly solemnized; but no settlement was ever made in pursuance of the articles. Henry Thorold, the father of Ann, died in 1805.

Sir John Trollope, by his last will, dated the 24th of March, 1809, gave his wife a legacy of 500l., and directed his trustees thereinafter named, to permit her, personally, with her family, to occupy his mansion-house of Casewick, in the county of Lincoln, together with the out-houses, plantations, and gardens, belonging thereunto, and also together with such quantity of the adjoining land, not exceeding thirty acres, which should be in his possession at the time of his decease, as his wife should select. This occupation was to continue during the life-time of his wife, or until some one of his sons should attain the age of twenty-one years, or marry with the consent of his guardians; the taxes and expenses of repairs, in the mean time, to be paid out of the income of the personal estate and the wife was to have the use and enjoyment of the household goods, furniture, carriages, horses, &c., and also of the farming stock which should be in or about the premises. Then the testator, after reciting the purport of the articles for the settlement of his own estate, and that no settlement had been made in pursuance of the agreement, confirmed the articles, and directed them to be performed. Immediately afterwards, he devised to his wife, for her life, the moiety of the rectory of Saltfleetby St. Peter's, and certain premises in the parish of Fisherton (parts of that portion of her estate to which he was, under her articles, entitled in fee) and then he gave and devised and, by virtue of every power enabling him in that behalf, appointed unto John Linton and Thomas Anthony Trollope all the hereditaments agreed to be settled, or over which he had a power of disposition, and all other the manors and hereditaments belonging to him, or over which he had a power of appointment, and also, subject to the life interest given to his wife, the premises in Fisherton, and

:

the moiety of the rectory of Saltfleetby, to hold the same upon the following trusts: viz. as to such of the said hereditaments as had not been agreed to be settled, to the use of his said trustees for five hundred years, upon trust, to raise a sum of 5000l. for each of his children who should be living at his decease, (except an eldest son,) each sum of 5000l. to be a vested interest in the child for whom it should be raised, upon his or her attaining the age of twentyone years, or the solemnization of his or her marriage, with the consent of guardians; and, in the mean time, the trustees, out of the rents and profits of the hereditaments comprised in the term, were to raise, for the maintenance and education of each of the said younger children respectively, such yearly sum or sums of money, not exceeding five per cent. per annum on their respective portions, as to the trustees should seem proper: And further, as to the hereditaments comprised in the term of five hundred years, after the determination of the same, and, in the mean time, subject thereto, and also as to the manors and other hereditaments agreed to be settled as aforesaid, upon the same trusts as were declared by the articles of the 24th of March, 1798, concerning the hereditaments thereby agreed to be settled. And he directed, that his trustees should not sell, mortgage, or demise any part of the hereditaments comprised in the term of five hundred years, until some one of the portions, or some part thereof, should become payable, and that the rents and profits, which should remain after answering the maintenance before provided for the younger children, should be received by the person, who, for the time being, should be entitled to the same hereditaments in remainder expectant on the term. He then bequeathed all the residue of his personal estate and effects to John Linton and Thomas A. Trollope, to hold the same upon trust for the person or persons, who, under the articles of his will, should be entitled, for the time being, to his real estates; but subject to a proviso, that no tenant in tail should take an absolute interest in any part thereof, till he attained the age of twenty-one years; and also, to a power given to his trustees to levy, raise, and pay (if they should think fit so to do), out of his personal estate, and

in exoneration of the term of five hundred years, all or any one or more of the several sums of 5000l. before ordered to be raised for younger children: every sum of 5000l. which should be so raised, was to be laid out at interest, in government or real securities, and, after a competent part of the dividends, or annual income, had been applied to the maintenance of the child entitled to the portion, the principal and the residue of the dividends or interest were to form an accumulating fund for the benefit of that child: but the testator declared, that the fund, which should be charged with raising these portions, or any of them, should be entirely in the discretion of his trustees, without any right or equity on the part of the persons entitled to his real or personal estates to require, that either of these estates should be resorted to or applied, in aid or exoneration of, or before, the other. And the testator further directed, that all persons claiming any benefit under his will should, under the doctrine of election, be bound to give effect to every disposition and direction therein contained, and that no one of his daughters or younger sons should be entitled to have or to claim any provision under him, or out of his settled or unsettled property, other than the provision made for him or her respectively under his will.

By a codicil, dated the 11th of March 1818, Sir John Trollope gave his wife a further annuity of 5007., which he directed to be issuing out of all the estates devised by his will, or such of them as he had the power of charging.

Sir John Trollope died on the 26th of April, 1820, leaving his widow and several children him surviving. The widow received her legacy, and continued in the occupation of the mansion house at Casewick, and the appurtenances, until the 5th of May, 1821; on which day the eldest son attained his full age.

The bill was filed by the younger children against the trustees, the widow, and the eldest son, in order to ascertain the rights of the parties under the marriage articles and will. It prayed, that the trusts of the will and codicil might be established, -that the trustees might be ordered to raise out of the income of the testator's real and personal estate, such yearly sums as might

amount to five per cent. on the portions given to the plaintiffs, to apply part of such sums to their maintenance, and to accumulate the surplus during their minorities for their benefit respectively, that inasmuch as no appointment had been made by Sir John Trollope of Lady Trollope's estates, the plaintiffs might be declared to be entitled, under Lady Trollope's articles, equally with their eldest brother, as tenants in common in tail to the estates of Lady Trollope, comprised in these articles, and that Lady Trollope might either elect to confirm these articles, or relinquish all the benefits which she might claim under Sir John Trollope's will, or under his articles for the settlement of his estate.

Mr. Bell and Mr. Barber for the plaintiffs:

Mr. Hart, Mr. Pemberton, and Mr. Trollope for the various defendants.

-Whether,

The first two questions were :if the wife did not elect to confirm the articles for the settlement of her freehold and copyhold estates, she could claim any benefits under the articles, for the settlement of her husband's estates: and secondly, whether the interest of the wife, as to her leasehold for years, was absolutely bound by her articles.

Vice Chancellor.-The lady being an infant, a settlement is made of her real and personal estate. The husband concurs in this settlement; and with a reference to it, he, at the same time, limits his own property to certain uses, under which the wife acquires a benefit. When he does this, he knows that there is a chance of the wife's subsequently defeating the settlement of the premises, in which she has a freehold interest, as having been executed while she was under the disability of infancy; but he enters into mutual engagements, subject to that contingency: and, therefore, though she should defeat her settlement, still his settlement must remain good.

The settlement must also be good as to the wife's real chattel. It has, indeed, been argued, that the husband cannot, before marriage, contract as to the wife's real chattel. It is, however, quite clear that he can. It was next said, that the wife's per

sonal property is the property of the husband, and that, therefore, the settlement of it is the husband's settlement, and will prevail, even though, at the time of making it, the wife be an infant; but, that there is a species of personal property,-a chattelreal, which is not the husband's absolutely, and that, therefore, the wife can no more part, by any instrument, executed during her minority, with her contingent interest in such personal estate, than she can with her freehold estates. The answer to that argument is this:-The husband possesses the general personal estate of the wife absolutely, and the Court binds him to perform his contract concerning it with respect to her chattel real, he possesses it only conditionally; there is a power to be exercised by him, before it becomes his absolutely. Is it, then, to be permitted, that the wife shall keep him in suspense with respect to the validity of the settlement made of it, in order that she may say after his death,-"This chattel shall not be affected by the settlement?" when, but for the settlement, he could have made that chattel absolutely his own.

The next question which arose upon the settlement and will, related to the interest of the portions. The plaintiffs contended, "that they were entitled to have 2501. raised for each of them yearly, as interest on their respective portions, and that the surplus, which should remain after their education and maintenance had been provided for, should be accumulated for their benefit respectively, On the other hand, the defendant, Sir John Trollope, insisted, that each of the younger children, until his or her portion became payable, was entitled only to a fair allowance for maintenance and education.

Vice Chancellor.-If these portions are to be raised out of the real estate, the younger children will have a right to maintenance and education, and to nothing more. As against the real estate, they can never claim interest on their portions: for the general rule is, that, where a real estate is charged with portions, interest thereon shall not be allowed, the object being to make the charge as small as is consistent with the purposes of the family.

On the contrary, if the portions are raised out of the personal estate, the direction of the will is express, that they shall, in that case, bear interest at 5 per I cent., which, if not annually exhausted in maintenance, is to accumulate for each child, till he or she comes of age.

The

Mr. Bell's argument was, in effect, this: -The portions are to bear interest, if raised out of the personal estate; therefore, they must be presumed to carry full interest, if raised out of the real estate same reasoning might lead to a conclusion directly opposite. It might, with equal justice, be said, that, as it is clear the portions cannot bear interest, if raised out of the real estate, neither ought they to bear interest, if taken out of the personalty.

Then it is contended for the eldest son, that the Court can never say, that these portions are to be raised out of the personal estate. It is not for me to determine, out of which fund they are to be raised. That rests entirely with the trustees. All that I can do is, to declare, that these portions, to the extent to which they are raised out of the personal estate, shall bear an accumulating interest of 5 per cent. ; and that, to the extent to which they are to be raised out of the real estate, they shall not bear interest, until they become payable, but that the children shall take only what may be fit for their maintenance and education.

The last and principal question in the cause was, whether, supposing the articles to be confirmed by Lady Trollope, the younger children were entitled, both to the portions given them by the father's will, and also, to take, as tenants in common in tail, along with their elder brother, those estates of their mother, which, by the articles, were limited in default of appointment by the father, to the children of the marriage.

The plaintiffs contended, that the father had made no appointment of the estates in question: that, therefore, the limitation in default of appointment took effect; and that they ought not to be put to elect between the portions bequeathed by the will, and the interests given by the articles, because, in insisting upon those interests,

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