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Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084260169 OUTLINES ADMINISTRATIVE JURISDICTION THE COURT OF CHANCERY. OUTLINES ADMINISTEATIVE JUEISDICTION THE COUET' OF CHANCEEY THE SUBSTANCE OF A SERIES OP LBCTUEBS DELIVERED AT THE REQUEST OP THE COUNCIL OP THE INCORPORATED LAW SOCIETY. BT THOMAS HENRY HADDAN, ESQ., B.C.L., Off THE IKKEB TEMPM:, BABRISTER-AT-LAW, LATE FELLOW OF EXETEE COLLEGE, AND ELDON SCHOLAB AND VIKERIAN FELLOW IN THE UHIVEBSITY OF OXFORD. LONDON: WILLIAM MAXWELL, 33, BELL YAED, HODGES, SMITH, & CO., DUBLIN ; BELL AND BEADFUTE, BDINBUK&H. 1863. £)lo^3^^ LONDON : BRADBURY AND EVANS, PRINTEE3, WHITEPRIARS. PREFACE. The following outlines of the administrative juris- diction of the Court of Chancery originated in a course of elementary Lectures on Equity, recently delivered in the Hall of the Incorporated Law Society, at the request of the CouncU. The particular province of equity jurisprudence thus selected for consideration, had not, as far as the writer is aware, heen treated of separately, and as a whole, hy any previous writer ; and while those parts of the suhject-matter, which had come within the scope of other and well-known trea- tises, had heen there regarded from a point of view somewhat different from that required in a disquisi- tion on the administration of property, as a hranch of Chancery jurisdiction, there were other divisions of the subject which had never been handled at all, as parts of the general system. Thus, the first principal division of the administrative jurisdiction in Chancery, viz., the administration of the assets of persons deceased, had formed, but incidentally VI PREFACE. only, a part of the general subject embraced by Mr. Justice WiUiams' comprehensive treatise on the Law of Executors; while the second division of the administrative jurisdiction which occurred for notice was the administration of trusts; — a subject treated of, though, again, not directly or exclusively, by the well-known works of Mr. Lewin and Mr. Hill on the general Law of Trusts and Trustees. But in the third and remaining division of the proposed subject, viz., administration under the statutory jurisdiction of the Court, — no writer appeared to have undertaken the task of explaining the common principle on which that particular administrative jurisdiction, in its various branches, proceeds, or the reasons which have called it into existence. The design, therefore, of the course of Lectures which forms the basis and general substance of the following pages, was to present, for the use of the students who Composed the audience, a general, but as far as possible accurate, outline of the Administra- tive Jurisdiction, as a whole, — ^including as well those parts of the jurisdiction, the subject-matter of which, as has been already observed, had been fully treated of, though from a different point of view, by other writers, — as those which, like the statutory adminis- tration, had not before been in any like manner con- sidered. Such an outline or sketch, though necesssjily general, — both from the nature of the case, and from the conditions imposed of dividing it into twelve PREFACE. Yii Lectures of about equal length, each of which was to occupy not more nor much less than an hour in its delivery, — seemed likely to be useful to the student, if it presented to him at one glance that which is perhaps at this day the most important branch of the business of the Courts of Equity, together with the general principles on which that business proceeds, and some one or more leading jdecisions or dicta in support or illustration of each practical regulation which governs it. And such were, in fact, the objects for which, and the circumstances under which, the principal part of the following pages was written ; — circumstances which, it is hoped, may in a measure explain some, at least, of the defects both of insertion and omission, and especially of the latter, which will be perceived by the learned reader, and which in a regular and formal treatise might perhaps have been more carefully guarded against. In preparing the Lectures, however, for publication, it has been attempted somewhat to extend their scope and usefulness beyond those originally aimed at, — to make them by some little re-writing and addition, not only a book of principles and outlines for the student in either branch of the profession, but also, by refer- ences and foot notes, of some little service to the practitioner. Li the first point of view it is hoped that the book which has thus been produced may, in its first two divisions, stiU prove a useful key to the more bulky and detailed treatises already alluded to, and may also, as a Vm PEEFACE. whole, help to bridge over the chasm which separates Blackstone's Commentaries — or even Story's Juris- prudence — from the minute distinctions and refine- ments met with in 'the actual practice of the Chambers or the Court. For these purposes the general frame- work and method pursued in the Lectures have been retained unaltered, — the necessary changes required by the casting of the Work into Books, Chapters, and Sections, only excepted. And, it wiU accordingly be found that the practice — which in an oral lecture seemed desirable, and even necessary, if the attention of the hearers was to be retained, — of selecting generally some one leading authority, and either reading the most applicable and interesting part of the judgment, or stating the circumstances of the particular case, instead of only referring to several authorities, and stating all the ramifications of the general rule which they support, — still shows itself in the chapters now presented to the reader. Again, it will also be found that in many instances the text-books (a) already re- ferred to, and which occupy various portions of the ground now intended to be covered, are still cited as general authorities, and referred to for further iafor- (a) The tooks and editions to which reference is principally made in the ensuing chapters are : — 1. Williams on Executors, 5th ed. 2. Setou on Decrees, 3rd ed. (except where otherwise stated). 3. Lewin on Trustees 4th ed. 4. Hill on Trustees. 5. Jarman on Wills, 3rd ed. ; being the books mentioned generally at the commencement of the Lectures, as those to which recourse had been had, and which the student would do well to peruse in connection with the subject in hand. PEEFACE. IX mation on the points on which they are cited, though for the most part it has been attempted now to add on each point a reference also to some original autho- rities or authority. Again, in the other point of -view which has been mentioned, — namely, that of making the book useful to the practitioner, — ^it has been sought to add, for the most part, to the leading decision or dictum on which any doctrine is based, and which may have been cited in support of it, some one at least of the most recent cases, — so as to render the work not only an intro- duction, but also a compendium, as far as may be, of the law of which it treats, and not altogether un- serviceable to those practitioners, at all events, to whom the more bulky treatises may be inaccessible, or who may have occasion to consult these pages on some points to which those treatises do not profess to extend. Perhaps the best explanation of the general spirit in which the following chapters were originally written, and also the best apology for some at least of the many shortcomings therein, of which the writer can- not but be conscious, may be found in the following remarks, which formed the introduction to one of the Lectures : "In the sketch or outline of the Administrative Jurisdiction, which alone could be attempted in the limited time necessarily allotted to it, it has been the aim of the writer, 1, to lay down as far as possible X PREFACE. what is practically useful ; and, 3, so to state it, that it may most readily imprint itself on the memory. To this end, in seeking to group and collect together the particular decisions of which the law is made up, into such leading general rules or maxims as might at once be most easily recollected, and might serve as guides and landmarks in exploring the pro- vince of study before us, it has been also endeavoured to keep in mind that practical application of the rules and maxims deduced, to make which application accurately and readily is, after all, the main object of all legal study and education. It has been found not always easy to combine these objects ; espe- cially under the circumstances of there being but a limited time allowed, and of the information having to be given orally. For if information imparted under these conditions is to find a resting-place in the memory, most necessary and essential it is that the rules laid down should be as few, and at the same time as broad and briefly expressed as possible ; while, on the other hand, in order to be practical, one is led unavoidably into detail, and induced to take notice of exceptions and anomalies, and thus, too often, to forget how time is passing while one is studying to compass a complete and really useful accuracy of state- ment. To quote an authority, with which, though not exactly a legal one, we have all long been familiar, — 'Fngit interea, fugit irrevocaHle tempus, Singula dam circum, capti Tectamur amore.' PREFACE. XI And in mentioning, therefore, as broadly and gene- rally as the writer has been compelled to do, such general rules or leading doctrines as seem to be appli- cable to the subject in hand, he would desire to add the caution, that as in all the moral sciences, so especially in that of law, and particularly English law, most true it is, first, that, according to the proverb, ' there is no rule without its exceptions;' and secondly, that especially and above all things, is it dangerous, when one comes to actual practice, to trust to one's knowledge of principles, or to take them or their application for granted, without inquiring, as to the very instance in hand, how the principle in question has been already applied by the Judges ; or, in other words, what the particular law is, as well as what is the general principle that governs it." 6, New Squaee, Linoolh's Ikh, Trinity Term, 1862. CONTENTS. INTEODUCTORY CHAPTER. PAQE OF THE ADMINISTRATION GENERALLY 1 BOOK I. OF THE ADMINISTRATION OF ASSETS 19 CHAPTER I. Of the Act of Administration 22 Section 1. Of the Nature of the Administration and the Parties to it . . . 22 Section 2. Of the Title to the Administration 34 Section 3. Of the Course of Procedure to obtaiu the Administration ... 44 Section 4. Of the Effect of an Admission of Assets, and how such an Admission is made 61 CHAPTER n. Of the Assets 66 Section 1. What are Assets 67 XIV CONTENTS. FAQE Section 2. Of Getting in and Securing the Assets, and herein of Legal and Ei^uitahle Assets '^ Section 3. Of Assets Beal 84 CHAPTER III. Of the Application and Disteibution of the Assets . . 90 Section L Of the Costs of the Administration 91 Section 2. Of the Order and Priorities of the other Claims on the Estate . . 96 Debts 101 Legacies 108 Course of Payment of Legacies 112 Eesidue 114 Section 3. Of the Order of the Application of the Assets ... . 119 General Rule of Law as to Priorily . .... 121 Marshalling 125 Priority by Acts of the Deceased 128 BOOK II. OF THE ADMINISTEATION OP TRUSTS .... 143 CHAPTER I. Of Pubhc OB Charitable Tbjjsts 143 Section 1. Of the Jurisdiction in the Administration of Charities . . . .143 Section 2. Of the Form of Procedure in the Administration of Charities . . 171 The Act of Administration . ' 183 The Mortmain Act 185 The Scheme I94 CONTENTS. XV CHAPTER II. FASE Of Pbitate Tkusts 201 Section 1. OftheEstablishment of the Trust 201 Section 2. Of the Execution of the Trust .216 Section 3. Of the Administration — ^ita Course and Duration 229 Section 4. Of the Distributicm of the Estate 243 BOOK III. OF THE STATUTORY ADMIOTSTEATIVE JUEISDICTION . 253 CHAPTER I. Of the Administration genbrallt 253 CHAPTER II. Statdtes Conferring or Enlarging Administrative Jttrisdiction 266 Section 1. The Trustee Relief Acts 266 Section 2. The Lands Clauses Consolidation Act 278 CHAPTER III. Statutes Conferring Administrative Powers .... 283 Section 1. The Trustee Acts 283 Section 2. The Infants' Settlement Act . . 297 XVI CONTENTS. PAau Section 3. The Leases and Sales of Settled Estates Acts 305 Section 4. The Law of Property Amendment Acts 310 APPENDIX A. I. Usual Decree for Administration of Assets on Bill or Summons in a Suit on behalf of the General Body of Creditors .... 320 II. Usual Decree for Administration of Assets on Bill or Summons by Person interested in the Estate, or on BUI by the Trustees, Executors, or Administrators 321 APPENDIX B. Table showing devolution of undisposed of Personal Estate under the Statutes of Distribution 325 XVll TABLE OF CASES. Abbis v. Winter, 99. • Abbot, Cary«., 156, 157, 161, 215. Acastei' v. Anderson, 49. Achesou V, Fair, 210. Ackrojd v. Snutbson, 213. Adair v. Sbaw, 6. Adey v. Arnold, 106. Albert, Smss6res v.. Appendix B. Aldrioh v. Cooper, 126. Alexander v. Gillespie, 110. Alford, Att.-Qen. v., 271. Allen, Dean v., 41, 109. V. McPherson, 24. Anderson, Aeaster v., 49. Angel V. Smith, 230. Annesley, Phipps v., 113, 230. Ananymous Case, 6. Antrobus, Bissett v., 100. Armstead, Edisforth v., 309. Arnold, Adey v., 106. Arrowsmith, Duffort »., 50. AsMown, Stillman v., 58. Askey, Birdr., 208. Aspinalli!. Bourne, 188. Atkinson v. Baker, 71. • V. Gfray, 106. Att.-Gen. u. Alford, 271. ■». Mayor of Beverley, 197. V. Bonltbee, 162. 1). Bowyer, 142. V, Brunning, 77. V. Lord Clarendon, 167, 168. V. Coopers' Company, 162. V. Comthwaite, 54. V. Craven, 162, 163. V. St. Cross Hospital, 169. 0. Dedham School, 167, 168. V, Dixie, 143. V, Eastlake, 149. Att.-Gen. v. Foundling Hospital, 143. V. Gaunt, 165. V. Gibbs, 35. Vi Harley, 188. V. Heelis, 148, 149. • V. Hurst, 185. V. Ironmongers' Company, 162. 1). Magdalen CoU., Oxford, 167. Marsh v., 187—189. V. Mathews, 159, 160. V. Bigby, 165. V. Seott, 175. V. Sherborne School, 168. V. Vivian, 173, 176. V. Weymouth, 156, 161. V. Whitchurch, 162: V. Williams, 193. V. Windsor, Dean and Ca- nons of, 197. iJ.Worcester, Bishopof, 178. Audley, Jee v., 235. Baoot, Salisbury v., 301. Bagshaw v. Spencer, 217, 220. Baker, Be, 112. Atkinson v. 71. Ball V. Harris, 78, 136. Bank of England, Morice v. 99. Eichardsou v., 84. Barham, Moor, v. , Appendix B. Femberton, v., 102, Barker v. May, 75, 77, 78. Barlow, Church Builduig Soc. v., 193. Nunnn., 107. Barnard, Cox u, 28. o. Pumfret, 63, 64. Barnwell v, Iremonger, 135. b XYUl TABLE OF CASES. Barrett, Rickard »., 78, 134, 136. Walker v., 109. Ban'ow V. Wadkin, 116. Bartlett v. Bartlett, 114. Barton v. Oooke, 110. Whites., 84. Basset v. Nosworthy, 209. Bate V. Hooper, 312. Bateman v. Margerison, 24. Bates, Clarke «., 62. ' Bath (Lord) v. Lord Bradford, 242, 309. Bather, Donald v.,2i. Bearpark v. Hutchinson, 71. Beaufort (Duke of) «. Berty, 247. V. Phillips, 102. Bedford Charity Case, 178. Bell, Blann v., 133. Consett v., 24. Bennet v. Lytton, 42, 109. Bereblock v. Bead, 102. Berkhampstead School Case, 167, 168. Berty, Duke of Beaufort v., 245. Beverley (Mayor of) Att.-Gren. v., 197. Bingham, Cookson v., 94. Bingley School, Re, 181. Binney, Hill v., 27, 61. Bird V. Askey, 208. Bissett V. Antrobus, 100. Blackborongh v. Davis, 118 ; Appen- dix E. Blackburn v. Hobson, 190. ®. Stables, 222. Blagrave, Martin v., 93. Blakely v. Blakeley, 48. Blakeman, Hovey v., 81. Blanchard, Ee, 289, 293, 294. Blankard v. Galdy, 72. Blann v. Bell, 133. Blewitt V. Blewitt, 24. Blow, Curtis v., 61. Bloye's Trust, 211, 268, 270, 275. Blncke, Trevor «., 232. Blundle, Bootle v., 31, 132. Bolland, Simmons v., 100, 108. Bond, Clough »., 82. V. England, 129, 130. Booth V. Booth, 82. Bootle V. Blundell, 31, 132. Bosville (Lord), Glenorohy v., 215, 218, 219, 222. Bottomley v. Fairfax, 104. Boughtons. James, 133. Boultbee, Att.-Gen. v., 162. Bouquet, Frueru, 115. Bourne, Aspinall®., 188. Bowyer, Att.-Gen.'!'., 142. Boyse v. Colclough, 31. V. Kossborough, 30. Bradford (Lord) v. Lord Bath, 242, 309. Brame, Jeffries v., IBS. Brett, Noble v., 41, 86. Brice v. Currie, 106. Bridgman, Be, 289, 293. Briggs, Garner v., 103. British Museum (Trustees o£)«. White, 147. Broadmead, Dilkes v., 86. Broome v. Monck, 129. Browne, Be, 111. Brunning, Att.-Gen. »., 77. Bryant, Greaves v., 27, 28, 35. King »., 35, 93. Buchanan, Flemings., 73, 87, 122, 136. Buckley's Trusts, Bfi, 277. Buissfires v. Albert, Appendix B. Bunting v. Marriot, 109. Burford, Dix v., 82. Burgess v. Wheate, 72, 116. Burnell, Foley s., 230. Burt, Be, 285, 290. ■ Clifton v., 136. Bury, Phillips v., 164, 167. Busby ». Seymour, 57. Bushby, Wall v., 61. Butcher, Ommaney v., 145, 148. Butler V. Freeman, 244. Cadel 0. Palmer, 236. Callendar, Wright v., 112. Camden (Lord), Garricks., App. B. Campbell v. Lord Badnor, 63. Canterbury (Archbishop of), Paice v. , 190. Carpenter, Tebbs v., 81. Carter, Low v., 42. Cartwright v. Cartwright, 30. Cary v. Abbot, 156, 157, 161, 215. V. Cary, 214, 216. Cater's Trust, 41, 277. Chadwick v. Holt, 102. Ohaloner, Horsley v., 63. Chambers, Smith v., 80. TABLK OF CASES. XIX Chapman v. Ohapman, 59. Howse v., 94, 190. Chantei-, Davis v., 292, 294. Chattaway, Salt v., 214. Cheese, Teneh «., 133 Cheriy, Mott v., 192. Chesterfield, Ford v., 92. Childs V. Monins, 63—65. Chitters, Hartwell v., 77. Christ; v. Conrtenay, 77. Chorch Building Society v. Barlow, 193. Clarendon (Lord), Att.-Gen. v., 167, 168. aark V. Bates, 62. Holland v., 65. Wride v., 135, 136. Clay V. Willis, 75, 77, 78. Clifton V. Burt, 136. Clough V. Bond, 82. V. Clough, 301. V. French, 105. Clowes, Kussell v., 116. Cobbett, Oldfield v., 33, 100. Coghill, Holmes v., 73. Golclough, Boyse v., 31. Colne y^ey and Halstead BaUway Bill, Ee, 314. Colquhoun, Wroughton «., 112. Colville, Lyon v., 79. Colyer v. Finch, 310. Compton, Johnson v., 57. Connop V. Hayward, 61. Consett V. BeU, 24. Cook V. Fountain, 213. V. Gfiegson, 75—77, 123. Barton v., 110. Cookson V. Bingham, 94. Cooper, Aldrioh v., 126. Lovegrove v., 76, 78, 124. Coopers' Company, Att.-Gen.'W., 162. Copeland, Lowsou v., 80. Cornthwaite, Att.-Gen. v., 54. Comwell, Be, 126. Corporation of Clergymen's Sons v. Swainson, 63. Courtenay, Christy v., 77. Courtney «. Taylor, 106. Cowell V. 6atcombe, 82. Cox V. Barnard, 28. V. Cox, 278. Cox's Creditors' Case, 77. Cramer, Ex parte, 281. Craven, Att.-Gen. v., 162, 163. Croly V. Weld, 111. Cross, Lyttleton v., 99. Crowther v. Crowther, 102. Cummins v. Cummins, 78, 124, 136. Currie, Brice v., 106. Curtis V. Blow, 61. Curzon, Lord Scarsdale v., 226. Dadt v. Hartridge, 135. Dartmouth (Lord), Howe v., 312. Daugars v. Rivaz, 169. Davenport ii. Stafford, 81. David V. Froud, 110. Davies v. Nicholson, 110. V. Topp, 133—136. Davis, Blaokborough v., 118; Ap- pendix B. ». Chanter, 294, 297. V. Marlborough, 230. Day, Hawkins v., 99, 100, 108. Dean v. Allen, 41, 109. James v., 210. Dedham School, Att.-Gfen. v., 167, 168. Dee, Parker v., 99. i>e -&. -/X£a ->- '^ Deerhurst «. Duke of St. Alban's, 223. Denning v. Ware, 107.- De Bonneval, De Themmines v., 161. De Themmines v. De Bonneval, 161. Dibbs V. Green, 42. Dilkes V. Broadmead, 86. Dimsdale v. Dunning, 62. Sturgeo., 192. Dix V. Burford, 82. Dixie, Att.-Gen. v., 143. Dodson V. Sammell, 109, 110. DoUand v. Johnson, 99, 103. Donald v. Bather, 24. Draper, Me, 316. Duck, Widdowsonu, 33, 100. Duffort V. Arrowsmith, 60. Dunn V, Dunn, 38. Dunning v. Dimsdale, 62. Dunsany (Lady), WUson v., 103. Durham (Bishop of), Morice v., 145, ' 149, 152, 155, 215. Dumford v. Lane, 301. Durrant, Galsworthy v, 28. Dyer v. Dyer, 207. i 2 TABLE OF CASES.' ISasimej^ Att.-(}en. v., 149, Edisfortli v. Armstead, 309. Edwards v. Hall, 194. EUcock V. Mapp, 115. Elwes, Ince«., 106. England, Bond v., 129, 130. Evelyni;. Evelyn, 119; Appendix B. Fair, Acbeson v., 210. Fairfax, Bottomley i;., 104. Farmer, Mills v., 152, 159, 160, 161, 176. Faversham v. Ryder, 147. Feamhead, KnatchbuU v., 42, 100, 108. Ferrard v. Prentice, 113, 230. Field V. Moore, 304. 'Woodgate v., 61. Finch, Colyer v., 310. Fitzmaurice, Boclifort v., 218, 222, 223. Flamank, Ex parte, 282. Fleming v. Buchanan, 73, 87, 122, 136. Fletcher v. Steyenson, 42. Foley V. Burnell, 230. Fords. Chesterfield, 92. Foster ». Handley, 76, 78, 124. Foundling Hospil^, Att,-3en, v., 143. Fountain, Cook «., 213. Fox V. Garrett, 107. II. Maokerth, 210. Eozard's Trusts, 273. Freeman, Butler v., 244. French, Clongh"., 105. Shee v., 75, 76, 123. Friend, Pembroke v., 130, 131. Frowd, David v., 110. Frner v. Bouquet, 115. Fryer, Ee, 49. Fullers. (Jreen, 35. V. Bedman, 103. Furze v. Hennett, 50. Fynn, Ke, 244, 247, 248, Galbt, Blankard v., 72. Galsworthy o. .Durrant, 28. Gandy, Harris v., 50. Garland v. Littlewood, 81, Gamer v. Eriggs, 103, Garrett v. Fox, 107. Garrick v, Lord Camden, Appendix B. Gascoigne, Xongford v., 82. V. Thwing, 205, 207, Gaskell v. Holmes, 139. Gatcombe, Cowell v., 82. Gaunt, Att.-Gen. v., 165, Gauter, Standewick v., 113, Gaze, Lore v., 115. Geldart, Eobinsonr., 190, 192. Gibbon, Royw., 84. Gibbs, Att.-Gen. v., 35. Gifford V. Manley, 106, Gilbart, Milne v., Appendix B. Grillespie v. Alexander, 110. Glanville, Taylor v., 39, 40. Glenorchy (Lord) v. BosviUe, 218, 219, 222, 225. Glyn V. Thorpe, 104. Godolphin (Lord), Duke of Marl- borough v., 236. Godson, Tincent v., 99, 105. Gomme, Hill v., 42, 100, 108. Goodchild v. Terrett, Appendix A, 322. Goode, Hayter D., 184, ■ V. West, 271. Goyernesses' Institution v. Kus- bridger, 114. Grant, Wynch v., 106. Qrares, Smale v., 73. ». Wright, 93. Gfray, Atkinson ?;., 106. V. Jenkins, 307. Gray, Ward v. 111. Greated.D. Created, 131. Greaves v. Bryant, 27, 28, 35, V. Powell, 121, Green, Ee, 109, 110. Dibbs v., 42. Fuller v., 35. V. Smith, 212. Gxegson, Cook v., 75 — 77, 123, Groves v. Levi, 24. Guy, Stiles v., 80, 82. Haiett, Loder v., 30, App, A., 322. Hall, Ee, 278. Edwards, v., 194, Hall's Charity, 177. Hamer's Devisees' Case, 78, 85, 124, 136, TABLE OF, CASES. XXI Hancock v. Podmore, 100. Handley, Fosters)., 76, 78, 124. Harley,.Att.Teen. v., 188. Harmood v. Oglander, 134, 135. Harris, Ball v., 78, 136. . «. Gandy, 50. V. Watkins, 135. Harrison, French v., 208 Harrop's Estate, 282. Haitridge, Dady v., 135. Hartwell v. CMtters, 77. Harwood (Lord), Milneru, 301, 302. Hatton, Underwood 1!., 42, 110. Hawkes v. Saunders, 63, 65.* Stronge v., App. A., 321. Hawkins v. Day, 99, 100, 108. Haygarth, Taylor «., 115, 116. Hayter v. Goode, 184. Hayward, Connope., 61. Heape, Sabin v., 310. Heath ». Nngent, 111, 112. Heelis, Att.-Gen. v., 148, 149. Heming v, Swannerton, 102, Hennett, Fnrze v., 50. Higgins, Ee, 62, 99. Hill V. Binney, 27, 61. — V. Gomme, 42, 100, 108. — ■». Walker, 108. Hillman, Lewis v., 211, 268. Hinchinbrook, Shipbrook v., 81, 82. Hitchcock, McHardy v., 83. Hobday v. Peteis, 73. Hobsou V. Blackburn, 190. — — - JPhilanthropic Society v., 61. Hodge's Settlement, 275. Hodgkinson v, Qoinn, 310. Hodgson, Re, 293. Holland v. Clarke, 65. V. Hughes, 311. . HoIUngsworth v. Shakeshaft, 81. HoUins, Soresby v., 194. Holloway, Marshall v., 249. Holme V, Stanley, 88. Holmes v. CoghUl, 73. Gaskillii., 139. Holt, Chadwick v., 103. Hooper, Be, 316. Hooper, Bate v., 312. Hoi-sley v. Ghaloner, 63. Horton, Sichardson v., 86, HoTey V. Blakeman, 81. Houghton,. Ex parte, 207. Houstoun, Saltoun v., 106. Howarth, Shuttleworth v., 92. Howe V. Lord Dartmouth, 312. Howell o. Price, 121. Howse«. Chapman, 94, 190. Hughes, Holland, v., 311. Humberstone, Eitchie v., 50. Humble v. Shore, 43. Hume, Whicker v., 155, 194. Humfrey, Schomberg v., App. A., 321. Hunter, Law v., 36, 37. Hurst, Att.-Gen. v., 185. Hutchinson, Bearpark v., 71. Huttou V. Bossiter, 64. Hymera, Official Manager . of New- castle Bank v., 99, 100, 108. Inok v. Elwes, 106. Ingle ». Eiehards, 107, 211. Innes «. Mtehell, 38. Insall, Pimm, v., 86, 302. Iremonger, Barnwell v., 135. Ironmongers' Co., Att.-Gen. v., 162. Jackson, White v., 39. V. Woolley, 92. James, Boughton v., 133. ^ V. Dean, 210. Jarris's Charity, 181. Jee V. Audley, 255. Jeffries v. Erame, 188. Jenkins, Gray!!., 307. Eichardson v., 106. Jerris, Kihderley i/., 78, 86, 124, 136. Jervoise o. Duke of Northumber- land, 216. Jeasop V. Watson, 214. Johnson v. Compton, 57. : Dolland?)., 99, 103. ■». Prendergast, 81. V. Swann, 193. Jones V, Jukes, 100. . — V. Mitchell, 156, 161. — V. Morrall, 81, — Simson v., 303. -^ V. Smith, 209. Jukes, Jones v., 100, Juler V. Juler, 115, Kaimbs, Orr v., 109. xxu TABLE OF CASES. Kane «.• EeyaoWs, 26. Keech v. Sandford, 210. Keilway v. Keilway, 119, App. B. Kemp, Fhilanthropic Socieigr v., 190. Kerr, Thome v., 57. Kershaw, Williams u.,.li9) 155. Kidder, Rider v., 207. Kinderley v. Jervis, 78, 86, 124, 136. King®. Bryant, 35, 93. — ■». Malcotl, 88. Knatohbull v. Fearnhead, 43, 100, 108. Knight's Trusts, 277. Kmibley, Wilson «.j 85, 122. Iaino, West t)., 49. Lake's Trusts, 275. liamh V. Lamb, App. A., 322. Lane, Durnford v., 301. — Savage v., 62. Langton v. Langton, 89, App. A., 320. Lav V. Hunter, 36, 37. Lazenby v. Bawsen, 64. Leapingwell, Page v., 187. Leicester v. Wright, 82. Leighton, Boch v., 62. Lett, Stahlschmidt v. 107, 108. Levi, Grroves v., 24. Lewis V. Hillman, 211, 268. Lincohi, Duke of Newcastle v., 225. Lincoln, Lady, v. Duke of Newcastle, 226. Lister, Tidd v., 126, 133. Lister's Hospital Case, 181. Littlewood v. Garland, 81. Lloyd V. Mason, 93. — V. Spillet, 203, 212. — V. Tench, App. B. Loder v. Halett, 30, App. A., 822. Loomes v. Stotherd, 92, 107. Lomas, Williams v., 73, 87, 122. — V. Wright, 107. London and Brighton By., Ee, 181. Longford v. Sascoigne, 82. Lorenz, Be, 316. Lovegrove v. Cooper, 76, 78, 124. Low V. Carter, 42. Lowater, Bobinson, v., 309. Lowson V. Copeland, 80, Lowry, Ogdeu v., 48. Love V. Gaze, 115. Lyon V. Cdlville, 79. Lyttleton v. Cross, 99. Lytton, Bennett »., 42, 109. McCuLLooE, Bussell v., 104. McGregor©. Topham, 31. MoHardy v. Hitchcock, 83. Maokreth, Fox v., 210. MoPherson, AEen v., 24. Magdalen College, Oxford, Att.-Gen. o., 167. Malcott, King v., 28. Malet's Trusts, Ke, 273. Manchester and Southport Bailway, 282. Manchester New Coll., Ke, 179. Mandeno v. Mandeuo, 241, 242. Manley, Gifford «., 106. Mapp, Ellcock v., 115. Margerison, Eatemanv., 24. Marlboro, Davis v., 230. Marlborough (Duke of) v. Lord Go- dolphin, 236. Marriott, Bunting U, 109. Marryatt v, Marryatt, 106. Marsha. Att.-Gen., 187—189. Marshall v. Holloway, 249. Martin v. Blagrave, 93. Mason, Lloyd v., 93. Mathews, Att.-Gen. v., 159, 160. Mathew's Settlement, 294, 297. Mathews, Terrell »., 82. May, Barker v., 75, 77, 78. V. Selby, 67. Merett, PoweUo., 116. Meyers v. Perigall, 189. ' " Mlddleton v. Poole, 84. V. Spencer, 115. - Mills D. Fai-mer, 152, 159—161, 176. • Sawyer v., 60. Milne ti. GHlbart, App. B. Milner v. Lord Harwood, 301, 302. Mirehouse v. Scaife, 78, 136. Mitchell V. Innes, 38. Jones i;., 1S6, 161. Mitchelson v. Piper, S3, 100. Mockett's Trust, 316. Moggridge v. Thackwell, 152, 154 — 156, 159, 160, 176. Monck, Broome ,v., 129. Moor V, Barham, App. B. Moore, Be, 45. TABLE OP CASES. XXlll Moore, Field v., 304. Mooisom, Ex parte, 169. Monins, Child v., 63—65. Morgan, Osborne v., 251. Morice v. Bishop of Durham, 145, 149, 152, 155i 215. Morle;, Kash v^ 149. Morrall, Jones v., 81. Morrice v. Bank of England, 99. Morse's Settlement, 273. Mott, Cherry v., 192. Mounsey, Postlewaite v., 62. Moxsey, Sewell v., 28. Muggeridge's Trust, 316. Mullick V. MuUick, 100. Mannings, Phillipo v., 11. Mutlow V. Mutlow, 75—77, 123. Nash v. Morley, 149. Newcastle Bank (OfSoial Manager of, V. Hymers, 99, 100, 108. Newcastle (Dnkeof), Lady Lincoln v., 226. V. Lady Lincoln, 225. Newstead, Bidgway v., 110. Nicholson, Davies v., 110. Noble V. Brett, 41, 86. Noel V. Bobinson, 72. Norfolk's (Duke of) Case, 235. Northumberland (Doke of}, Jerroise v., 216. Nosworthy, Bassett v., 209. Nugent, Heath »., Ill, 112. Nunn V. Barlow, 107. OoDBN V. Lowry, 48. Turner v., 147. Oglander, Harmood v., 134, 135. Oldfield V. Cobbett, 33, 100. Oldham «. Pickering, 71. Ommaney v. Butcher, 145, 148. Orru. Kaimes, 109. Osborne v. Morgan, 251. Oxborrow, Whitmore v., 27. Page v. Leapingwell, 187. Faice v. Archbishop of Canterbniy, 190. Painter, Ward v., 28. Palmer, CadeU »., 236. Parker t). Dee, 99. Sparling v., 185. Stone v., 131. Watson v., 107. Parry, PhilUps v., 134, 135. Partington v. Reynolds, 49. Peachey's (Sir John) Case, 207. Pembertou v. Barham, 1 02. Pembroke v. Friend, 130, 131. Penson, Plnnkett v., 75, 86, 108. Perry v. Phelips, 102. Perigal, Meyers «., 189. Peters, Hobdays., 73. Pett's Case, App. B. Philanthropic Sooie(^ v. Hobson, 61. V. Kemp, 190. Phelips, Perry v., 102. Phillipo V. Munnings, 11. Phillips, Duke of Beaufort v., 102. V. Bury, 164, 167. V. Parry, 334, 135. Philpot V. St. George's Hospital, 193. Phipps V. Annesley, 113, 230. Pickering, Oldham v., 71. V. Vowles, 210. Piggott V. Young, 48. Pimm V. Insall, 86, 302. Piper, Mitchelsou v., 33, 100. V. Piper, 130. Piatt, Stead v., 70. Plunkett V. Penson, 75, 86, 108. Podmore, Hancock «., 100. Poole, Middleton v., 84. Postlewaite v, Mounsey, 62. Powell, Greaves v., 121. 1!. Merett, 116. Strafford v., 222. Power, Tipping v., 96. Prendergast, Johnson v., 81. Prentice, Ferrard v., 113, 230. Price, Howell v., 121. V. Price, 38. Primrose, Be, 293. Pumfret, Barnard v., 63, 64. Punter, Stagg v., 100. Pybus V. Smith, 80. QuiNir, Hodgkiuson v., 310. Eadhoe (Lord), Campbell v., 63. XXIV TABLE OF CASES. Bawson, Lazenby 11., 64. Eaysen, Wickenden v., 89, App. A. 320. , Head, Bereblock «., 102. Head's Gaee, SO. Bedman, Fuller v., 103. Bejnolds, Ease v., 26. Partington v., 49. V. Wright, 70, 71. Eichards, Ingle v., 107, 211. Bicbardson v. £ank of England, 84. V. Horton, 86. v.. Jenkins, 106. Shakelsr., App. A. 322. Eiokard v. Barrett, 78, 134, 136. Eider v. Kidder, 207. Bidgway «. Newstead, 110. Eigby, Att.-Gen. •»., 165. BitcMe V. Humberstone, 50. Eitson, Stratford «., App. A., 321. BiTaz, Daugars v., 169. Eobinson v. Geldart, 190, 192. v. Lowater, 309. Noel v., 72. Eobinson's Executors' Case, 106. Bocb, Tombs v., 112, 127. Bochfort V. Fitzmaurice, 218, 222, 223. Eoek V. Leigbton, 62. Eodney v. Bodney, 38. Bogers v. Soutten, 61, 64, Eoss V. Boss, 114. Eossborougb, Boyse v., 30. Eossiter, Hutton v., 64. Eotberam v. Botheram, 135. Boyu. Gibbon, 84. Busbridger, Governesses Institution v., 114. Bnssell v. CIoTres, 116. V. McCullook, 104. Eyder, Faversbam v., 147. Eyyes v. Duke of Wellington, 24. Sabin v. Eeape, 310. St. Alban's (Duke of), Deerburst v., 223. St. Cross Hospital, Att.-Gen. v., 169. St. George's Hospital, PbQpot«.,193. St. Giles! Volunteer Corps, Be, 181. Salisbury v. Bagot, 301. Salt V. Chattaway, 214. Saltoun V. Eoustoun, 106, Sammell, Dodson v., 109, 110. Sandford, Keecb v., 210. Saunders, Eawkes v., 63, 65. Sawyer v. Mills, 60. Savage v. Lane, 62. Scarsdale (Lord) v. Cnrzon, 226. Scaife, Mirebonse v., 78, 136. Scbomberg v. Humfrey, App. A., 321. Soott, Att.-Gen. v., 175, Selby, May v., 67. Severs v. Severs, 65. Sewell V.' Moxsey, 28. Seymour, Busbby v., 57. Sbadbolt v. .Thornton, 188. Shakels v. Eicbardson, App. A., 322. Shakesbaft, Hollingsworth v., 81. Sharratt, Wyatt 1)., 84. Shaw, Adair v., 6. Sbee V. French, 75, 76, 123, Shelley's Case, 222, 227. Shepherd v. Towgood, 80. Sherborne School, Att.-Gen. v., 168. Shipbrook v. Hinchinbrook, 81, 82. Shippard v. Lntwidge 77. .Shore, Humble i)., 43, Shuttleworth v. Howartb, 92. West v., 161. Simmonds v. Bolland. 100, 108. Simsonv. Jones, 303. Smale v. Graves, 73. Smith, Angel v., 230. V. Chamloers, 80. Green v., 212, Jones v., 209. Pybus v., 80. V. Smith, 11, 109, 131. = V. Spilsbury, 49, 50, Spode v., 42, 108. Smithson, Ackroyd v., 213. Soresby v. Hollins, 194. Soutten, Bogers v., 61, 64. Spackman v. Tunbrell, 86. Sparling v. Parker, 185. Spence, Be, 247. Spencer, Bagshaw v., 217, 220. Spioer, Middleton v., 115. Spillet, Lloyd v., 203, 212, Spilsbury, Smith v., 49, 50, Spode V. Smith, 42, 108. Spratley, Stacey v., App. A,, 322, Squire, Wilson v., 94. Stables, Blackburn v., 222. Stacey v. Spratley, App. A, 322. . TABLE OF CASES, XXV Stafford, Davenport v., 81, Stagg V. Punter, 100. Stahlsohmidt v. Lett, 107, 108. Standewick, Granter v., 113. Stanley, Hohnev., 88. V. Stanley, App, B. Stead V. Piatt, 70. Stevens, Underwood v., 82. Stevenson, Fletcher v., 42. Stiles V. Gny, 80, 82. Stillman v. AsMown, 53. Stone V. Parker, 131. ■». Yansteythnsen, 106. Storie's Umversity Gift, 196. « Stotherd, Loomes v., 92, 107. Strafford v. Powell, 222. Stratford v. Kitson, Appendix A., 321. StroDge V. Hawkes, Appendix A., 321. Sturge V. Simsdale, 192. Swainson, Corporation of Clergymen's Sonsi)., 63. V. Swainson, 130. Swann, Johnson »., 193. Swannerton, Homing v. , 102. ^rinfen v. Swinfen, 31. Sykes, Wrigley v., 310. Tayioe, Courtney v., 106. • V. Glanville, 39, 40. V, Haygarth, 115, 116. Walker v., 208. Tehbs V. Carpenter, 81. Tempest v. Tempest, 190. Tench v. Cheese, 133. V. Lloyd, Appendix B. Terrell v. Mathews, 82. Terrett, Goodchild v., Appendix A., 322. Thellusson v. Eendlesham, 232, 238. V. Woodford, 238. Thaekwell, Moggridge v., 152, 154— 156, 159, 160, 176. Thome v. Kerr, 57. Thornton, Shadbolt v., 188, Thorpe, Glyn v., 104. Thwing, Gasooigne v., 205, 207. Tidd V. Lister, 126, 133. Timbrell, Spaekmau v., 86, Tipping V. Power, 96. Tombs V. Eoch, 112, 127. TomUn v. Tomlin, 36, 37, 57. Topham, McGregor v., 31. Topp, Davies »., 133—136. Trench v. Harrison, 208. Trevor v. Blucke, 232, Tubby V. Tubby, Appendix A., 320. Turner v, Ogden, 147. Turqnand, Whitmore v., 83, 84. Uhdbswood v. Hutton, 42, 110. V. Stevens, 82. University of London v. Yarrow, 148, 194. Vahbersteoeh, Vaughan v., 73, Vanghan v. Vanderstegen, 73. Vansteythusen, Stone «., 106. Vincent v. Godson, 99, 105. Vivian, Att.-Geu. v., 173, 176. Yowles, Pickering v., 210^ Wadkik, Barrow «., 116. Walker, HiU v., 108. V. Taylor, 208. V. Woodward, 36. Wall V. Busbby, 61. Waller v. Barrett, 109. V. WaUer, 31. Ward V. Gfray, 111. — V. Painter, 28. Ware, Denning v., 107. Watkins, Harris v., 135. Watson, Jessop v., 214. V. Parker, 107. Webber v. Webber, 114. Weld, Croly v., 111. Wellesley v. Wellesley, 244, 245. Wellington (Duke of), Kyves v., 24. West, Goode v., 271. — V. Laing, 49. — V. Shuttleworth, 161. Weymouth, Att.-Gen. »., 156,'.161. Wheate, Burgess v., 72, 116. Whicker v. Hume, 155, 194. Whitaker v. Whitaker, 129. v. Wright, 99. Whitchurch, Att.-Gen. v., 162. White V. Barton, 84. V. Trustees of British Museum 147. V. Jackson, 39. XXVI TABLE OF CASES. Whiting, Ee, 276. Whitmore .I). Oxborrov, 27. V. Turqnand, 83, 84. Whittle V. Heming, 63. Wiokenden v. Eaysen, 89, App. A., 320. Widdowson v. Duck, 33, 100. Williams, Att.-Gen. 193. V. Kershaw, 149, 155. V. Lomas, 73, 87, 122. V. Trust, 272. Willis, Claiy v., 76, 77, 78. ■VFilson ». Lady Dunsany, 103, V. Knubley, 85, 122. V. Squire, 94. WiltsKre, Be, 49. Windsor, Dean and Canons of, Att.- Gen. v., 197. Winter, Abbis v., 99. Woodbum's Will, 274. Woodford, Thellusaon «.,238. Woodgate v. Field, 61. WooUey, Jackson v. 92. Woolstencroft ?). ^oolstencroft, 131. Worcester, Bishop of,Att.-Gen.«.178. Wride v. Clarke, 135, 136. Wright V. Calendar, 112. Grayest., 93. Leicester v., 82. Lomas, v. 107. Reynolds «., 70, 71. Whitakerw., 99. Wrigley v. Sykes, 310. Wronghton v. Colquhoun, 112. Wyatt V. Sharrall, 84. Wylly's Trust, 41, 277. Wynoh v. Grant, 106. Yarbow, tTniverBity of London v., 148, 194. Young, Piggott •». ,■ 48. xxvu TABLE OF STATUTES CITED OR EEFEEUED TO. 13 Edw. 1, c. 19 (Statute Westminster 2, Administratioa of Intestate's 31 Edw. 3, St. 1, c. 11 (Administration of Intestate's Effects), 8, 25. 21 Hen. 8, c. 5 (Administration of Intestate's Effects), 25. 23 Hen. 8, c. 6 (Recognisances), 105. 27 Hen. 8, c. 10 (Statute of Uses), 203. 1 Edw. 6, c. 14 (Superstitious Uses), 150. 43 Eliz. c. 4 (Cliai-itable Uses), 144, 146. 1 Jac. 2, c. 17 (Distribution of Intestate's Effects), 115, 117, 118. 22 Car. 2, >;. 10 (Statute of Distributions), 9, 25, 115, 118, 325. 29 Car. 2, o. 3 (Statute of Frauds), 25, 70, 86, 115, 118, 202, 325. 3 Will. & Mary, c. 14 (Statute of Fraudulent Devises), 85, 122, 123. 4 & 5 Will. & Mary, c. 20 (Dooquetiug Judgments), 103. 7 Anne, c. 19 (Infent Trustees and Mortageea), 256, 283. 8 Geo. 1, c. 25 (Elecognisances), 105. 4 Geo. 2, c. 10 (Incapacitated Trustees), 284. 5 Geo. 2, c. 7 (Colonial Lands of Deceased Persons), 72. 9 Geo. 2, c. 36 (Mortmain), 150, 152, 156, 161, 184, 185. 14 Geo. 2, u. 20 (Special Occupancy), 71. 17 Geo. 2, 0. 38 (Debt for Poor Rates), 101. 36 Geo. 3, c. 52 (Legacies to Infants and Persons beyond Seas), 14, 261, 264, 278. 39 & 40 Geo. 3, o. 98 (Tbellnsson Act), 238. 43 Geo. 3, c. 108 (Church BuUding), 193. 52 Geo. 3, c. 101 (Charities ; Sir S. Romilly), 176. 57 Geo. 3, c. 29 (Debts to Paving Commissioners), 101, 58 Geo. 3, c. 73 (Regimental Debts), 101. 9 Geo. 4, c. 33 (Lands (abroad) of Deceased Persons), 72. 11 Geo. 4 and 1 Will. 4, c. 40 (Executors Trustees of Residue), 8, 115. 0. 47 (Real Assets), 86, 122, 123. c. 65 (Lands of Incapacitated Persons), 14, 305. 3 & 4 WiU. 4, 0. 104 (Real Assets ; Sir J. Romilly), 38, 68, 76, 78, 85, 123, 124, 136. 1 Viet. c. 26 (WiUs), 71, 135. 1 & 2 Vict. c. 110 (Judgments), 73, 102, 103, 104. 2 Vict. c. 11 (Judgments), 103. 5 Vict. c. 6 (Abolition of Equity Exchequer), 177. 8 Vict. c. 18 (Lands Clauses Consolidation), 12, 260, 264, 280, 281. 10 & 11 Vict. c. 96 (Trustee Relief, 1847), 13, 261, 264, 266. 12 & 13 Vict. 13 & 14 Vict. C. c, 15 & 16 Vict. c. 16 & 17 Vict. c, XXVIU TABLE OF STATUTES. , 74 (Trustee Relief, 1849), 13, 261, 264, 267. . 35 (Chancery Procedure ; Sir Geo. Turner), 44, 50, 51. , 60 (Trustee Act, 1850), 14, 257, 26i 283, 284, 289, 290 292. , 55 (Trustee Extension, 1852), 14, 257, 264, 283, 284, 289 290 292, 86 (Chancery Procedure, 1852), 24, 28, 39, 42, 45, 46, 61, 56, 60, 319, 321, 322. , 137 (Charitable Trusts, 1853), 179, 180. 17 & 18 Viet. 0. 113 (Mortgages ; Locke King), 130. 18 & 19 Vict. c. 15 (Judgments), 103. c. 43 (Infents' Settlement), 14, 265, 283. c. 68 (Debts to Friendly Societies), 101. c. 124 (Charitable Trusts, 1855), 179. 19 & 20 Vict. u. 120 (Leases and Sales of Settled Estates), 14, 265, 283, 305. 20 & 21 Vict. c. 77 (Court of Probate), 24. c. 14 (Joint Stock Companies, 1857), 106. 21 & 22 Vict. c. 27 (Chancery Procedure), 31. 00. 56 & 95 (Court of Probate), 24. 0. 77 (Leases and Sales of Settled Estates), 14, 283, 305. 22 & 23 Vict. c. 35 (Law of Property Amendment, 1869), 14, 15, 109, 110, 265, 283, 310. 23 & 24 Vict. c. 38 (Law of Property Amendment, 1860), 15, 51, 102, 103, 266, 283, 308, 311. c. 136 (Charitable Trusts, 1860), 179, 181. 24 & 25 Vict. c. 9 (Mortmain), 186. c. 134 (Bankruptcy, 1861), 180. EREATA. — ♦— / Page 25, note (e), fm "26 Hen. VIII. o. 6," read, "21 Hen. VIII. c. 5." J 95, line 8, /or "Chancery" read "Chambers." V 281, note (o), for " 8 Vict. c. 16," read " 8 Vict. c. 18." /297, note (5), for "18 & 19 Vict. c. 48," read " 18 & 19 Vict, c, 43." ADDENDUM. J Appendix B, page 325, Jiue 13, after the words " in equal shares (?)," add "the children of deceased Brothers and Sisters taMng their parents' shares." OUTLINES OE THE ADMINISTEATIYE JUEISDICTION OF THE COUET OF CHANCERY. INTEODUCTOEY CHAPTEE. OF THE ADMINISTEATION GENEEALLY {fl). The administrative jurisdiction of the Court of Nature of . . 1 • administia- Chancery may shortly, and without material inaccu- tive jaris- racy, be characterised as that branch of the juris- '° '°°' diction which has to adjust and execute doubtful or recognised rights, rather than to decide between directly hostile litigants. To ascertain, secure, and apply property for the benefit of its rightful owners, and in due accordance with their several interests, , is the object of the jurisdiction ; not to decide, as between those owners and adverse claimants, any dis- putes which may have arisen concerning it. Under (a) The collocation of this chapter was somewhat varied in its oral delivery. f, 2 OF THE ADMINISTRATION GENERALLY. this administration, in fine, on the one hand, what- ever property ought of right to he dealt with in any particular case, is ascertained, got in, and perma- nently secured under the Orders of the Court ; while, on the other, all claims upon and aU interests in that property, whether contested or not, — if made under, and not adverse to, the administration, — are in like manner ascertained and declared, and put in train for liquidation; immediate and vested demands are at once satisfied ; future and contingent claims, and continuing interests, of whatever duration, are provided for and executed, during the whole length of their continuance ; and ultimately, on the determi- nation of all charges and contingencies, the entire matter is completely wound up and disposed of. Such an administrative, as distinct from the ordinary con- tentious, jurisdiction, under which litigated rights are once for aU decided upon and disposed of, seems to he, at thig day, a peculiarity of the Chancery jurisprudence, which, from the extensive and important influence attained hy it, both deserves and will repay a separate and independent consideration. And it is of this ad- ministrative branch of the jurisprudence of the Court that I have proposed, in the following pages, to treat. The present and preliminary chapter, then, will be devoted to the purpose of tracing out, generally, the limits of this branch of jurisdiction, the principles on which it rests or from which it is derived, and the steps by which it has been established. The general scheme and arrangement also will be indicated in it, of the chapters which foil W, with the principal OF THE ADMINISTRATION GENERALLY. 3 divisions under which the subject will, in those chapters, be treated. Taking the present constitution, then, of the Court The admi- of Chancery, it is submitted that, as a matter of fact, "un^iotfoa the administrative jurisdiction now exercised by that ""Ih"'!™' Court will be found to be exercised mainly, or perhaps juriBdiotiou ,.,.,, 1 ■ . ■, . . over trusts. exclusively, m those subjects or departments m which there is a trust (or something analogous to, or in the nature of, a trust) to be executed and performed under the direction of the Court. Not that it is true, con- versely, that every trust necessitates an administration ; nor even that every execution or enforcement by the Court of a trust, or system of trusts, — still less every redress of a breach of trust, or every remedy given against a delinquent trustee, — amounts to, or is identical with, an administration of the trust property. An administration involves something more than any of these proceedings. It is, in fact, an app Hcatjon^ by the Court of_certain parts of its peculiar Juris- diction and machinery, as, in particular, its juris- diction in the matter of discovery^ accoimts, in- quiries, and other proceedings in Chambers, to the enforcement and execution of a trust, or of some other similar relation and liability, — as, for instance, the relation and liability of an executor to the creditors of a testator, and to his devisees or legatees, — so as to work out the whole matter in all its ramifi- cations and details. A complete administration, in short, in the Court of .Chancery, is not a simple exer- cise of any single branch of its authority, — it is a combination of several. The process is a complex. 4 OF THE ADMINISTEATION GENEEALLY. one. It is an application, as I have said, of the jurisdiction in discovery, account, — ^in a word, of all other parts of the jurisdiction of the Court which may ■ in any way conduce towards the end in view, — to the ascertaining, reaching, securing, applying, and distri- huting the particular property which comes before it to be dealt with, or, as the proper term is, administered. But this application, I think it will be found, of the powers of the Court, which we now call by the general term administration, subsists, in its more projper and legitimate form, in those cases of trust which the Court has from the first assumed the exclusive right of enforcing, and in cases analogous thereto, and in those cases only. Early For, that this administrative system was originally instances of . . ..... administra- Called into action by the jurisdiction m matters trusts. °f trust, and was thence extended to cases present- ing similar relations and liabilities, would seem to be tolerably certain. Thus, it is to be observed in the first place, that the jurisdiction of the Court of Chancery over trusts has always, both in principle and j in fact, implied, and been accompanied by, an adminis- trative practice and procedure. In principle, because, as it is obvious, trusts— and especially one large class of trusts, viz., executory' trusts — could in no wise be completely enforced without having recourse to a pro- cedure of an administrative character ; and, in fact, we find that, while some of the earliest bills exhibited in Chancery related to the execution of trusts, so, where- ever the case required it, or the parties were anxious so to prosecute it, these bills were of an administrative OF THE ADMINISTEATION GENERALLY. 5 nature, and referable to the administratwe jurisdiction wliich we now have under consideration. Mr. Spence, in his learned work on the rise and progress of the " Equitable Jurisdiction of the Court of Chancery " {a), specifies, amongst the proceedings of that Court in the reigns of Henry V., Henry VI., Edward IV., and Eichard III., a hill for the execution of the trusts of a will; a bill to raise a por|ion; and, again, a bill to have a sale (of real estate) and application of the proceeds in payment of debts, and then of legacies, according to the directions of a will; thus proving, as it should seem, the exercise, from the earliest times, of the same administrative jurisdiction in matters of trust with which we are famUiar at the present day, and which seems to flow, at once and of necessity, from any assumption at all by the Court, of a power to establish or enforce the fiduciary obligation. There being, however, thus, as it would appear, from Extension the first, an administrative jurisdiction exercised by ^iotion'to^ the Court of Chancery in relation to matters involving ^/^^j^^^"]" any express or implied trust, it was further to be ex- person's pected that this jurisdiction should become extended in the lapse of time to other matters akin to, though not, strictly speaking, identical with, trusts : and this accordingly took place. For, hence appears to have arisen, in the first place, the modern adminis- trative practice of the Court in the mnding up of the affairs of persons deceased, — an administration which, though not strictly or purely a matter of trust, is yet analogous thereto, and admits of being conducted on (o) 1 Spenee, Ui-; notes d, e, f, and oases there cited. 6 OF THE ADMINISTKATION GENERALLY. the like principles. With respect to this administra- tion, there is the high authority of Lords Hardwicke and Redesdale for identifying the principle of the jurisdiction with that akeady established by the Court in matters more purely and directly fiduciary. Thus, in an Anonymous case in Afkyns (a), Lord Hardwicke contiaued an injunction staying a suit iu the Ecclesiastical Court for a legacy, on the ground that where there is a trust, or anything in the nature of a trust (which he assumed was there the case), then "notwithstanding the Eccle- siastical Courts have original jurisdiction iu legacies, the Court of Chancfery will enjoin, trusts being only proper for the cognizance of that Court." And Lord Redesdale, in Adair v. Shaw {b), lays it down that "the whole jurisdiction of Courts of Equity in the administration of assets is founded on the principle that it is the duty of the Court to enforce the execution of trusts ; and that the executor or administrator who has the property in his handSj, is bound to apply that property in the payment of debts and legacies, and to apply the surplus according to the will, or, in case of intestacy, according to the Statute of Distributions. The sole ground," his Lordship contiaues, " on which cqurts of equity proceed in cases of this kind is the execu- tion of a trust." Again, in Lord Redesdale's celebrated " Treatise on Equity Pleading " (c), the following, fur- ther statement is made respecting the origin of the (a) Anon., 1 Atk. 491. (5) Adair v. Shaw, 1 Seh. & L. 262. (c) Mitfoid, p. 136, 4th ed. OF THE ADMINISTRATION GENEEALLY. 7 administrative jurisdiction over the estates of persons deceased : — " In the administration of personal effects, the Courts of Equity have assumed a concurrent juris- diction with the Ecclesiastical Courts, and for many purposes have a much more effectual jurisdiction, par- ticiilarly for payment of creditors, and concluding all parties by the judgment of the Court in the distribution of the effects, and preserving the surplus for the benefit of those who may finally appear to be entitled to it." The effect of these authorities seems to be that the analogy between the ordinary relation of trustee to cestui que trust, and that of an executor to the claimants upon his testator's estate, having induced the Court of Chancery to extend its administrative jurisdiction, already established in the former case, to the latter case also, concurrently with the Eccle- siastical Courts, which had at first assumed the exclu- sive cognizance of it, — the more effective machinery and procedure of the Court of Chancery, and particu- larly its powers of enforcing a discovery {a), afterwards led to the complete establishment of that latter tribunal as the proper and regular jurisdiction for the purpose. The identity of principle, however, which thus ap- Keal fomd- •' -"^ -^ , . T • ationofthe pears to have prompted or facilitated the application jurisdiction of the administrative machinery of the Court in the Jgri^g ™!^ matter of trusts, to the winding up of the estates of ^etsrfde-^ testators and intestates, must not be mistaken for an sons. identity of origin. The real foundation of the juris- diction of the Court over an executor or administrator, or in favour of an executor or administrator, in relation (o) Wms. Exors. 1819. 8 OF THE ABMINISTEATION GENEEALLY. to the assets of the deceased, is, in truth, as I conceive, not the subsistence of a fiduciary relation, but simply the rule or principle, — which has been recognised law of the Court of Chancery firom the earliest times, — that on the application of any party having a claim, either legal or equitable, on any fund within the reach of the Court (as, e. g., on the application of a creditor against a deceased debtor's estate), the Court has always given to such claimant a full discovery of that fund, and has secur£d_it_to_meet, and then applied it to satisfy, the claims, as well of the particular applicant, as of a U otherssimilarly situated {a). For, indeed, it is obvious that the claims which set the Court of administration in motion, in the case of a deceased person's estate, are not always the claims of cestuis que trustent against their trustee. The executor, for instance, is not a tijustee for the creditors. His liability to pay them as far as he has assets is an ordinary legal liability, enforced by action at law (6). So, also, the similar liability of the administrator is a legal and a statutory one (c). So, again, neither was the executor or admi- nistrator, as such, originally a ti'ustee of the undis- posed of residue for the next of kin [d). Such residue, until a comparatively recent statute (e), did, in fact, (o) 1 Spence, 5V8, 580 ; Wms. Exors. 1819, n. (5) ; Story, Eq. Juris, c. ix. 8. 534, (5) 1 Spence, 191, and authorities cited. (c) 2 BL Com. 495 ; 1 Spence, 190, 191 ; Wms. Exors. 351 ; Statutes, 13th Ed. I. and 31 Ed. III. st. 1, c. 11. (d) Wms. Exors. 1327, 1335. (e) 11 Geo. IT. & 1 Will. IV., cap. 46 ; by -rirtue of which statute the executor is now a trustee of the undisposed of residue for the next of kin in all cases, unless a contrary intention appears in the will. OF THE ADMINISTRATION GENERALLY. 9 belong to the executor beneficially, if one was ap- pointed, as a general rule ; and the administrator also, where there was no executor, was, until the Statutes of Distribution (a), entitled exclusively to enjoy the re- sidue, after paying the funeral expenses and debts (6). In the administration of deceased persons' estates, in short, there are, and always were, some claims and liabilities against the estate which do not, as well as others which certainly do'rest on the doctrine of trusts ; and the administration, therefore, which is exercised by the Court of Chancery in such cases, though modelled, as it should seem, on the similar jurisdiction exer- cised in matters purely fiduciary, is not in itself the administration of a trust, but rather an administration of property according to certain established rules, in / satisfaction of rights, some legal and others equitable, in a manner analogous to that adopted in cases where all the parties claiming claim simply as cestuis que trustent. 4 Classing, therefore, this last-mentioned department Classifioa- of administration as a separate division, and takmg different also into account the administration of trusts properly admkis°^ so called — a department, this last, in which, side by toatioii- side with the old and established jurisdiction of the Court, there has of late sprung up also, by virtue of the several Acts of Parliament hereafter specified, a new, distinct, and special statutory jurisdiction — we arrive at the following three principal heads of admi- nistrative jurisdiction, as at present exercised by the Court of Chancery ; namely, — I. The administration of the estates, or, as they are 1. Admi- (a) 22 & 23 Car. 2, c. 10. (i) Wms. 1335-6. 10 OF THE ADMINISTEATION GENEEALLT. nistration teclinically termed, " assets," of deceased persons, tes- ^rsW^^ tate or intestate, among the creditors, and the legatees, estates. ^j, devisees, or the next of kin, as the case may be, of the deceased. 2. Admi- II. The administration of property directly im- ^tmsts" pressed with any trust, whether express or implied, under the ^nd whether created by deed, wiU, or otherwise, among general •' jpisdio- the beneficiaries taking under the trust, as conducted under the ordinary jurisdiction and procedure of the Court. 3. TheUke III. The administration of the same class of pro- tion under' perty, as Conducted under the special statutory jurisdiction the statu- created by recent Acts of ParKament. tory juris- t> j diction. The present little work, therefore, will be divided di-risfonof Primarily into three parts, corresponding with the the subject, above threefold division of the subject ; a division which, it will be perceived, I thus assume to be an exhaustive one. I propose, however, further on to state shortly the reasons for this assumption. Adminis- 1. On the division itself I remark, with reference assets. to the first member of it, viz., the administration of de- ceased persons' estates, that I have, on the grounds just adverted to, classed it as a separate head or division of administration, distinct from the administration of an ordinary trust ; a distinction which wiU be found to be supported, as a matter of fact, throughout the administration. Thus, the administration in Court of the assets of a testator who has bequeathed his property upon trusts, draws with it, as of course, the administra- tion and execution of these trusts also, as well as the adjustment and satisfaction of the rights of the cre- ditors of the estate, aad the getting in of the property OF THE ADMINISTKATION GENEEALLT. 11 of which it consists. Yet the latter administration is, in fact, a distinct and separate administration. For this it may suffice to refer to, among the many other authorities which might be mentioned, the well-known case of Fhillipo v. Munnings (a), in which a sum of money had been bequeathed to the executor of the wiU upon certain trusts, and the executor having invested a sum in his name to answer the trust, and afterwards misappropriated it, a bill was filed against him to recover it, but not until after the time when, if it had been a suit against the executor as such, for payment of a legacy, the Statute of Limitations would have barred it. Lord Cottenham however held, that as the fund had been actually set apart, the suit was not against the defendant as executor, but against him as trustee, and was consequently not barred by the statute, which, according to the well known rule, does not run agaiust a constituted trust. His Lordship, in giving judg- ment, spoke as follows: "In this case, the executor, when he received the legacy from the general personal estate .... was bound by the direction of the tes- tator to hold it upon certain trusts. . . . What he would have done by paying it to a trustee (for the purposes of the trust), he has done by severing it from the testator's property, and appropriating it to the particular purpose pointed out by the will. It is impossible to consider that the executor so acting is acting as executor; he has all this while been acting as a trustee (S)." (a) 2 My. & Or. 309, "■ (6) See, on the same point, tHe recent decision of T.-C. Eiadersley, in Smith V. S., 1 Dr. & S., 384, 12 OF THE ADMINISTRATION GENEEALLY. 2, Admi- nistration of trast estates (proper). (a) Public; (6) Private. 3. Statu- tory admi- nistration. (a) Lands Consolida- tion Act. Where the duties and jurisdiction, in short, of the executor end, there those of the trustee begin. The two characters are distinct, though the individual filling them may be one and the same ; and distinct therefore, also, are the administrative procedures ad- dressed to each respective case. In the case cited, the suit against the executor must have failed; but as against the trustee it was good. The administration therefore of trusts, strictly and properly so called, forms the subject of a second and separate branch of the general division before us ; and it will there be treated of under the general, as distinct from the statutory, jurisdiction of the Court. But, inasmuch as all trusts are in their nature either of a public (^. e. charitable) or else of a private nature, a fur- ther subdivision of this branch of the subject wiU thus be supplied. The third and remaining member of the above- mentioned general division of the subject, will be the special administrative jurisdiction created by statute. First of these statutes I place the Lands Clauses Con- solidation Act, 1845 (a). This Act was passed for the purpose, as stated in the preamble, of " comprising in one general Act the provisions then usually intro- duced into Acts relative to the acquisition of land for works of a public nature, and to the compensation to be made for the same." The Acts here referred to are the Canal Acis, Dock Acts, ©as Acts, and especially the Railway Acts, which in the year 1845 had become very numerous, and which several claisses of Acts had {a) 8 Yiot. 0. :8. OF THE ADMINISTRATION GENERALLY. 13 in effect created a new branch of administrative juris- diction in Chancery, by throwing upon that Court the administration of the purchase or compensation moneys (above a certain amount) payable, in respect of lands taken by the company, to parties under disability, or having only qualified interests in the lands taken ; and for which monies, therefore, no effectual receipts could be obtained. This new jurisdiction was stereotyped, so to speak, by the Lands Clauses Consolidation Act, which contains provisions generally applicable to the whole class of cases referred to, and enables the pro- moters of any undertaking to dispense, in their own particular case, with any special enactment governing the administration of those parts of the purchase or compensation monies paj^able by them, for which, under the circumstances above referred to, no dis- charge could be obtained. The jurisdiction however in question being clearly an administrative one, founded on the payment of the fund into Court for security and distribution, subject to any continuing or other trusts, pending which the Court retains and administers the fund, the procedure under this Act will properly form one branch of the general subject to be considered in these pages. The same reasons apply to the jurisdiction created (J) Trustee by the Trustee Belief Acts, as they are called, of 1847 Acts. and 1849 {a) ; the principle of which Acts is obvi- ously borrowed from that which the Railway and Canal Acts, just alluded to, had brought into opera- tion to meet the case of compensation monies for (a) 10 & 11 Vict. c. 96 ; 12 & 13 Yiot. c. 74. 14 OF THE ADMINISTEATION GENEEALLT. whicli no persons could be at once found capable of giving discharges ; and whicli principle had just before been recognised, as I have said, by the Lands Clauses Act, as a principle of universal application in the case of monies thus situated. The Trustee Relief Acts, in fact, extend the operation of this principle, before confined to compensation monies payable by public companies, to monies held " upon any trust whatsoever." The holder may pay those monies into the Court of Chancery, and the Court then administers them according to its established rules and form (a). (c) Trnstee Of a different character from the statutes just fants''se°- mentioned, though by no means to be omitted from ttement consideration in a survey of the special statutory juris - Leases and diction conferred on the Court as a Court of adminis- Settied Es- tration, are the " Trustee Acts " of 1850 and 1853 (6), "dltwoj*^® "-Z«/«wfe' Settlement Act, 1865" (c), the "Leases Property md Sales of Settled Estates Acts, 1856, 1858" [d), ment Acts, the " Law of Property Amendment Acts, 1859," espe- (o) It stonld be noticed that, to a certain extent, or rather as to certain cases, the principles of these Trustee Relief Acts had been anticipated by the 32nd section of the 36 Gfeo. III. c. S2, which, with respect to legacies payable to infants or persons beyond seas, authorised the payment thereof into the Court of Chancery, there to be dealt with according to the rights of the parties. This enactment, however, is now in effect superseded by the more general provisious of the Trustee Belief Acts, (6) 13 & 14 Yict. 0. 60 ; 15 & 16 Yiet. c. 55. (c) 18 & 19 Vict. u. 43. (d) 19 & 20 Vict. c. 120 ; 21 & 22 Vict. ,;. 77. In connection with the Leases and Sales of Settled Estates Acts, should also be mentioned the powers previously conferred on the Court of Chancery by the 11 Geo. IV. & 1 Will. IV. c. 65, with respect to surrenders and renewals of leases and grants of leases, by femes covert, infants, and lunatics respectively ; agree- ments on behalf of infants, and other matters of less importance, which will be found noticed below in the chapter on the Statutory Jurisdiction. OF THE ADMINISTEATION GENERALLY. 15 cially sects. 30, 33; and 1860, sects. 9, 10, 11 (e); all of which statutes confer upon the Court special powers, not before possessed by it, to be used in the adminis- tration, or for facilitating the administration, of pro- perty within its jurisdiction ; but which, with a partial exception in the case of the " Leases and Sales of Settled Estates Acts," do not, as do the "Lands Clauses Act " and the " Trustee Relief Acts," bring within the scope of the Court any fresh property or subject for the Court to administer or adjudicate upon. And with these statutes, the catalogue of Acts confer- ring fresh administrative jurisdiction or administrative powers on the Court of Chancery, appears to close. Having thus inquired briefly into the origin and Branches of principles of the jurisdiction which forms the subject not purely of the ensuing pages, and also traced out generally its tr^^e'ex- principal outlines and divisions, I conclude the present clndedfrom . oonsidera- chapter by adverting shortly to certam other branches tion. of Chancery jurisdiction, the omission of which from a treatise proposing to deal, though only in outline, with the whole administrative jurisdiction of the Court of Chancery, may be thought to require explanation. First of these stand the jurisdictions in bankruptcy 1. Bank- and lunacy respectively. But as to the former, the Lunacy. jurisdiction has been so completely remodelled, and indeed refounded, by repeated acts of the Legislature, that the procedure under it has now very little analogy, or even resemblance, as an administrative proceeding, to that which obtains under an ordinary administration in Chancery. In lunacy, again, while the same remark (e) 22 & 23 Vict. c. 35 ; 23 & 24 Yiot. o. 38. 16 OF THE ADMINISTEATION GENERALLY. applies, though certainly to a less extent, the original jurisdiction itself is, both in its nature and procedure, different from the ordinary process of administration in Chancery. Neither bankruptcy nor lunacy, there- fore, could come properly under consideration in a sur- vey of the ordinary administrative jurisdiction of the Court of Chancery. 2. Partner- Besides these, the only departments of Chancery ship, , , , jurisprudence which have occurred to the writer as claiming to be of an administrative character, are the jurisdictions in the matter of partnership and of mortgage respectively. The ground on which it has been considered that these subjects do not fall strictly and properly within the scope of the ensuing pages is, that the departments in question appear to be of a mixed character, — in one aspect certainly administrative, though perhaps im- perfectly so, but in another contentious. Thus in a partnership suit, accounts are taken and property is got in and applied; but the end and object of the whole is not a continuing administration, but a decision as between hostile parties, to which of them the ultimate balance is due, and an immediate payment thereof accordingly. So the similar jurisdiction, not merely developed, but created, by the Acts of 1848 and 1849, for winding up joint-stock company partnerships (commonly cited as the " Winding-up Acts, 1848, 1849 "), and afterwards imported in a modified form into the present Joint-Stock Companies' Acts, is partly of a contentious and partly of an administrative nature. It applies, that is to say, to the settlement of the affairs OF THE ADMINISTEATION GENEEAILT. 17 of these special and complicated kinds of partnerships, a considerable part of the administrative machinery of the Court. Under such a winding up, the assets of the company are called up, the creditors advertised for and ascertained, the liabilities liquidated, and the surplus (if any) distributed. Yet, in this proceeding, almost every step is contentious; and the end and object of the whole is not a continuous process of administration, but_a_summary disposition of matters in di£ference. By the Joint Stock Companies' Act of 1857, moreover, the greater part of this jurisdiction (aU, that is to say, which relates to limited companies) is transferred to the Court of Bankruptcy, and this subject, therefore, clearly cannot now be properly embraced in a treatise or disquisition relating only to administration by the Court of Chancery. The same remarks will, I think, be found appli- Mortgage. cable also in the case of mortgages. A foreclosure or redemption suit involves an account and payment, just as a partnership suit does. But like a partnership suit, also, it involves no complete or continuing administration, but interposing merely to ascertain, by account, the present rights arid position of the contending parties, it proceeds afterwards to dispose of those rights accordingly, by orders adapted to the facts established. Under these circumstances, it has been considered that neither partnerships nor mortgages could con- veniently or properly fall within the following " Out- lines of the Administrative Jurisdiction of the Court of Chancery." BOOK I. OF THE ADMINISTRATION OF ASSETS. The first of the three principal divisions or depart- The object ments of administration, which have been mentioned in admi^is- the preceding chapter, as constituting the jurisdiction *™*'°"' to be considered in these pages, is the administration of the estates or assets of deceased persons, testate or intestate. Of this administration it is, in few words, the object, to secure and satisfy two classes of claimants ; first, the creditors of the deceased, and secondly, the persons who may be entitled beneficially to his surplus property ; — his devisees and legatees, if he has left a will, and his heirs and next of kin, if he has died intestate. The administration consists, accordingly, of a procedure which, moulded to the above purposes, is generally to the following effect: First, it is ascertained by account and inquiry, and if And the necessary by discovery on oath, what property has been ^MoVit left by the testator or intestate which is applicable, o^ consists. right to the purposes of the administration ; and such property is secured accordingly. Next, the claims of the creditors on the estate are in like manner ascer- tained, and then put in course of liquidation. Lastly, 2 20 OF THE ADMINISTEA.TION- OF ASSETS. the remaining property is distributed among, or trans- ferred or conveyed to, the persons beneficially entitled under the will or the intestacy. The peculiar characteristic of the administration is, the double class of objects which it thus embraces. The ordinary administration in Chancery of a trust contemplates simply ,^besides the ascertainment of the property subject to it, — an application thereof among one class of claimants only, viz., the cestuis que trustent, according to their several interests, as established and defined exclusively by the Court of Equity. But in the administration of a deceased person's assets there is also another and a prior class of claimants to be satisfied, and that mainly a legal one, viz., creditors. Twofold This peculiarity makes itself observable throughout adminis- the whole course of the administration. Thus, the obserTable ■^'°™^ °^ ^^^^ ^ which this administration is prosecuted in, is twofold, the first being what is called a creditors' ome fSt ®'**^' instituted by creditors for the purpose of an administration for their own especial benefit; and the second being what is called an asset suit, instituted by either a beneficiary on the estate, or by the executor, administrator, or trustee, for the purposes of adminis- 2. The tration generally. So the light in which, under this mkistered. administration, the property to be administered is regarded, viz., not as estate merely, real or personal, but as assets (a), derives colour from the same cause. 3. The ap- Lastly, the various and somewhat complicated rules Ssel!^^^*'^ will be found to obtain with respect to the (o) See infra, Chapter II. of this Book, as to the significance of this word. OF THE ADMINISTEATION OF ASSETS. 31 application of these assets, — rules establishing distinct orders of priority therein, both as between the claimants, inter se, and also as between the various classes of assets themselves, — are referable also to the circum- stance that creditors as well as ordinary beneficiaries, have to be provided for. In dealing with this branch of the subject, then, it Division of is proposed to treat: Firgtly, of the administration itself; of the sub- Secondly, of the assets administered; Thirdly, of their ^^'^^' application. CHAPTEE I. OF THE ACT OF ADMINISTEATION. The administration itself,---or, in other words, the act of the Court which constitutes it, with the title thereto, and the course of procedure for procuring it, in the case of the administration of a deceased person's assets, — appears to admit of being most conveniently considered under the following heads, viz. : See. 1. Firstly, The nature of the administration, and the parties to it ; See. 2. Secondly, The title to obtain it ; See. 3. Thirdly, The course of procedure for obtaining it ; Sec. 4. Fourthly, The effect upon it of an admission of assets. Section 1. Of the Nature of the Administration, and the Parties to it. Prineiple This administration appears, as has been already of the juris- observed, to be founded on the right, recognised from the earliest times by the Court of Chancery, of any person — who may have, either alone or in common with others, legal or equitable claims upon a particular property, or the holder of a particular property, — to have a discovery and account of the property thus OF THE NATURE OF THE ADMINISTRATION. 23 liable to meet his demand, and then to have such pro- perty, when discovered, secured until the validity of his own and the other demands upon it is tried and ascertained; — and if they are established, then to have them satisfied thereout in a just and regular course (a). The demand on which this title was founded might have been, either a simple debt due from the intestate to a creditor, and recoverable against the executor if he had assets to meet it, by action at law ; or it might have been the right which every legatee has against the executor to have his legacy paid, rateably with the other legacies, out of whatever personal estate may remain after satisfaction of the testator's debts. In either case, the claimant was held entitled to pursue his rights, through the medium of the discovery, account, and, in a word, the administration, which is now the established course of the Court. Such, then, being the origin of the administration, Of what the proceeding consists at the present day, in its sim- oeeding plest form, of an account taken by the Court, against the personal representatwe of the deceased owner of the estate under administration, of all the property in the hands of such representative, which is liable to satisfy, first the creditors, and then the legatees or next of kin, of such deceased owner, and an application thereof accordingly in satisfaction of these demands (6). Let me speak of these several actors in, or parties (a) Wms. Exors. 1819, n. (i).; 1 Story, Bq. Juris, eh. ix., sec. 534; 1 Spence, 580, oh. 10, sec. 2. (6) See the forms of the nsual administration decrees, Appendix A., 1 Seton 115, 149, 3rd ed. 24 OF THE ADMINISTEATION OF ASSETS. Parties to the admi- nistration. I. The personal representa- tive. 1. Exe- cutor. 2. Admi- mistrator mm testa- menio annexo. 3. Admi- nistrator [general]. t to, the administration, in the order in which I have just mentioned them. I. First, then, in order, in a valid- administration, there must be present the legal personal representative of the deceased owner of the estate to be administered {a). Now, such personal representative may be either of the following characters ; — 1st. The executor [or executors] originally appointed by the testator's will (S), and having proved that will in the proper Court of Probate (c), at any time before the administration decree {d). 2nd. An administrator cum testamento annexo, to whom administration has been granted, either in con- sequence of the testator having made an incomplete will, without naming any executors, or having named incapable persons, or in consequence of all the exe- cutors named having refused to act (e). 3rd. An administrator appointed by the Court of Probate, in consequence of the total intestacy of the deceased (/). (a) 3 Bac. Ab. Ex. & Ad. G. ; Donald v. Bather, 16 B. 26. A mere administrator ad litem of the estate administered -was always insufficient ; Groves V. Levi, 9 H. App. xlvii., n., and a representative appointed by the Court under 15 & 16 Vict. c. 86, s. 42, is equally so. S. C. ib. (6) 2 Bl. Com. 503. (c) As to the proper Coui-t of Probate, see 20 & 21 Vict. o. 77, and 21 & 22 Vict. CO. 56, 95. The probate is conclusive as to the appoint- ment of the executor, the validity and pontents of the -will, as a will of personalty, and that it is not impeachable as fraudulent. Wms. Exors. 476, 484 ; and see the case of Allen v. McPheraon, 1 Ph. 133 ; 1 H. L. C. 191. {d) Blewitti). B., 1 Toung, 541 ; Eyves i). Duke of Wellington, 9 B. 579, 601 ; Consett o. Bell, 1 T. & C. C. 569. Bateman v. Margerison, 6 Ha. 496. (e) 2 Bl. Com. 503 ; Wms. Exors. 402. (/) 2 Bl. Com. 504. OP THE PAETIES TO THE ADMINISTEATION. 25 The title to the office of administrator, whether it Title to is an administration cum testamento annexo or a general adminis- adtninistration which is granted (a). Tests (J): (1), in*"^^*""^- the husband or wife, as the case may be; (2), in the band or kindred or relatives of the deceased; those being pre- ,„.\ . ^ ferred that are the nearest in degree to the intestate ; tin. but as between persons in equal degree, the Court of Probate having a discretion, and the degrees being reckoned according to t£e civil law, which is the com- putation adopted by the Statutes of Distribution (c) ; * and (3), if none of the kindred wiU take out adminis- ^r. '^'^' tration, a creditor may by custom do it {d). (4), If (4) Eeei- there be only a partial intestacy, and the case is not legatee. within the letter of the statute of Henry VIII. (e), which applies only to a total intestacy, or a refusal by the executor to prove, the Court of Probate has discretion (a) Wms. Exors. 357, 402. (J) By statute 31 Bd. III. ; 21 Hen. VIII. c. 5 ; Wma. Exors. 357, and following pages ; 2 Bl. Oom, 504. The right of the husband is uncon- trollable by the Court of Probate ; that of the widow rests on the discretion of the Court (as between her and the next of kin), subject to statute 21 Hen. VIII. u. 5 ; Wms. Exors. uhi supra. (c) 2 Bl. Com. 504 ; Wms. Exors. 364, and following pages. "In the first place the children (and their lineal descendants), or, on failure of children, the parents, of the deceased are entitled to the administration ; then foUow brothers and sisters, grandfathers and grandmothers; then uncles or nephews, great-grandfathers and great-grandmothers, and lastly cousins ; and the half blood is admitted to the administration as well as the whole." 2 Bl. Com. «6i supra; Wms. Exors. 372. It is also an established principle that the right to the administration follows the right to the property, and consequently the rules stated below, Ch. III., ». 2, as to distribution under the statutes 22 Car. II., c. 10 ; 29 Car. II., o. 3, apply also here. Wms. Exors. 365, 381. {(^ 2 Bl. Com. 505. (e) m Hen. YIII. e. 5. 36 OF THE ADMINISTBATION OF ASSETS. to prefer, and does prefer, the residuary legatee to the (5) The next of kin (a). Lastly, if a bastard, or any one else Crown \ / if who has no kindred, dies intestate and without wife or child, the Crown is entitled to administer (6). 4. Executor 4th. The executor of the original executor, or of the execu or. j^^^ survivor of the original executors, of the intestate. "For the executor of A.'s executor (who has proved A.'s will and died) is to all intents and purposes the executor and representative of A. himself, but the executor of A.'s administrator, or the administrator of A.'s executor, is not the representative of A." (c). 5. Admi- 5th. The administrator de bonis non administratis of ^eionis *^® intestate, appointed where either the sole original nm. executor, or the sole survivor of the original executors, has died, after probate, himself intestate, or without an executor who has proved (d). Eulesasto It wiU be Seen that the right deduction of the tion oTthe Personal representation to the deceased owner of the representa- estate administered, and which is altogether essential tion. , _ , _ _ ° to. the validity of the administration (e), depends on the following circumstances : — 1. If there be an executor [or executors] of the deceased, who [or any of whom] have proved the mil, the representation is deduced through him [or them,] and after his [or their] decease through his executor or (a) 2B1. Com. 505 ; Wms. Exors. 403. (b) 2 Bl. Com. 506 ; Wms. Exors. 379 ; and see Kane v. Reynolds, 4 D. M. & a 671. • (c) 2 Bl. Com. 506 ; Wms. Exors. 222. (d) 2 Bl. Com. 506 ; Wms. Exors. 222 ; Burton's Compendium of E«al Property, 328. (e) See ante, p. 24, u. (a). OF THE PARTIES TO THE ADMINISTEATION. 27 executors, [or the executor or executors of the last survivor,] which last-mentioned executor or executors have proved the will of his or their tgstator, — and so on ad infinitum. 2. If this representation fails at the first step, the administrator of the intestate duly appointed for the purpose, either on a general intestacy or cum iestamento annexo, as the case requires, takes the representation. 3. If the representation fails at any subsequent stage, or if the administrator (either general, or cum testamento annexo) of the original intestate die without completing the administration, an administrator de bonis non administratis is necessary, and sufficiently represents the original deceased. II. The next thing necessary to a valid adminis- II. The tration of assets is a party to it who, as plaintiff or defendant, represents either the creditors of the deceased, or those interested in his estate (a). When a creditor sues as plaintiff, though he may sue, nofr for himself only, but on behalf of the general body of the creditors, his debt mus t be hon& fide du e at the tim e of the application (6), and payable either presently or in future (c) ; and though an assignee of a debt for value is, of course, as much entitled to the administration as his assignor was, yet the assignment must not be impeachable by reason of its being volun- (a) In an asset suit the creditors need not be before the Court at the | hearing, bnt may come in tinder the decree; so in a creditor's suit, or suit I T by creditor plaintiff, for administration, the residuary legatees are repre- sented by the executor. As to a summons suit, see sect. 3 of this chapter, (5) Greaves v. Bryant, 1 C. & L. 267 ; Hall v. Biuney, 6 Vesey, 48. (e) Whitmore v. Oxborrow, 2 T. & C. C. 13, 28 OF THE ADMINISTEATION OF ASSETS. tary and incomplete (o). Though if the plaintiff's debt fails, it seems the suit is sometimes retained for the benefit of the other creditors (fi). So also if the cre- ditor be deceased, his personal representative, it need hardly be said, has the same right to the administra- tion which the original creditor had. in. The Besides the interest of the personal representative, legatees^or ^"^^ of the creditors, that of the residuary legatees or next of kin. j^g^^. gf -^^^ ^^ ^j^g pa^gg j^g^y |jg^ jg ^j^g i\^g^ ^mJ j-g. maining element which is dealt with in the admi- nistration before us ; and, according to the old rule, no decree in an asset suit could be made if any were absent. But now by the Chancery Procedure Act of 1852, the decree may go if one of the class be present to represent the rest, and the others are allowed thereupon to come in and participate in the admi- nistration (c). The specific and particular legatees are looked upon in the same light as particular incum- brancers, aiid are allowed to come in under the admi- nistration, as will hereafter be shown, withotft being party to the decree. (a) Sewell v. Moxsey, 2 Sim. N. C. 189 ; a. Tolnntary covenant by the testator or intestate is, as will be seen, a. totallj distinct case, and quite unprejudiced by the doctrine above stated. See Cox v. Barnard, 8 Ha. 310. As to the interest requisite to support a creditor's bill, see the cases cited in the two preceding notes, and also Ward v. Fainter, 5 My. & C. 298, in which the right of creditors of an insolvent debtor, amterior to his insolventy, was held sufficient to maintain a bill to administer his after- acquired property, subject to the insolvency creditors' rights ; and so Galsworthy v. Durrant, 29 B. 279. A lessor to whom nothing is due cannot, of course, maintain a bill against the estate of his lessee. King 0. Maloott, 9 Ha. 692. (6) Greaves v. Bryant, libi mpta. (c) 15 & 16 Yiet. c. 86, s. 42 ; Rules 1, 2, 3, i, 6. OF THE ACT OF ADMINISTRATION. 29 Such then being the origin and general nature of The admi- the administration, it is at the present day constituted deoref ot by a decree or order of the Court, pronounced, except ^?' °fa^™i- in certain cases which wUl be specified, in a suit regu- larly instituted for the purpose, and which directs substantially to the following effect (a) : — First, that accounts be taken in Court of the per- Accounts of sonal estate or assets of the deceased come to the sonai hands of his executor "or administrator, and also of ^^^'^'j^™*^ what, if any, are outstanding. tration thereof. Secondly, that accounts be taken, ki like manner, of the claims on the estate, in respect of the debts of the deceased and of his funeral and testamentary ex- penses. Where the suit is by creditors, it is to be observed in passing, the order of the two above-mentioned direc- tions is reversed, and the account of the plaintiff's and other debts, the payment of which is the principal object of the administration, is placed first. An order then follows, directing the application of the personal estate in payment of the above claiins, "in a due course of administration." Lastly, if the deceased left a wiU, accounts are directed of the legacies and annuities bequeathed by it ; and the order to administer is extended to their pay- ment; and further inquiries are also directed when necessary, with a view to ascertain who may be the ■persons entitled under the wUl to any legacy or share (a) 1 Seton, Decrees, 3rcl ed., 115, 149 ; from which book, at the delivery of the lecture, the actual forms of the decrees were read ; which will he found in the Appendix A. 30 OF THE ADMINISTEATION OF ASSETS. of residue. Thus, if there be a gift to a class of children, an inquiry is made what children there were of the parent named, living at the testator's decease, or other period of vesting. But if the person whose estate is under administration has died intestate, then • inquiries are directed who are his next of kin, ac- ■ cording to the statutes for the distribution of intestate's estate, living at the time of his death. Acconnts, Where there is real estate (a) to be administered, as nktratim well as personal, the Court of administration adds to of the real itg decree an account or inquiry what real estate the estate. testator (or intestate) was seised of at the time of his death, and of the incumbrances (if any) thereon ; and of the rents received by the accounting defendants; and then directs a sale (h) and payment of the pro- ceeds into Court for the purposes of the adminis- tration. If the suit is by beneficiaries under a will, in the case of real estate, the Court by its decree first esta- blishes the will against the heir at law (c), either on an admission of it in his answer {d) or on proof of the will by, as it seems, all the witnesses, if it is (a) For the liability of the real estate to be admioistered in satisfaction of debts, see post, Chapter II. of this Book ; and for forms of decree, see Appendix A., and 1 Seton, 231, 232. (5) When a sale will be ordered, see post, Chapters II. and III. of this Book. (c) A very recent case of Boyse v. Kossboronghj before V.-C. Wood, Kay, 71 ; 3 D. M. & a 817 ; 6 H. L. C. 1 ; appears to have, for the first time, directly established that a mere legal devisee, not seeking adminis' tratwn of the estate, may file a bill to establish the will against the heir. . 1 Seton, 229. (d) Loder v. Halett, ] Seton, 224, 3rd ed. ; Cartwright w. C, 4 Sim. 134. OF THE ACT OF ADMINISTEATION. 31 possible to procure their attendance (a), on an issue directed by the Court of Equity, according to the old practice (J); or tried before the Equity Judge under the statutory powers now conferred on the Court for the purpose (c). The administration thus directed — though, as it has Observa- ' been pointed out, slightly varied in form in the case in thTform of which creditors are the plaintiffs prosecuting it — is in *^® ^^f' substance, it must be observed, in all cases the same admims- , . . . rn, . . tration, in administration. The promment point of difference, the cases, indeed, between the administration at the instance of lively of an creditors and that at the instance of beneficiaries, is ^^^ ^"'' and a cre- one of form, viz., that in the creditors' suit the decree ditor suit, provides primarily and mainly for the satisfaction of the debts and expenses in the due course of adminis- tration ; but in the asset suit, where the party suing is interested not simply in having the debts paid, but also in having the residue afterwards distributed between himself and the other parties entitled, the decree proceeds further to order payment of the lega- cies and the annuities given by the will ; thus clearing and ascertaining the fund to be ultimately divisible between the residuary legatees or next of kin, according to their several interests. In the asset suit, accord- ingly, the decree directs, first of aU, and as the pro- minent and cardinal point, an account of the personal (a) Bootle v. Blundell, 19 Yea. 505 ; McGregor v. Topham, 3 H. of L. 132 ; and see cases collected in 1 Seton 227, 3rd ed. (i) Boyse v. Cololougli, 1 K. & J. 124, 135 ; and as to granting more trials than one, see Waller v. W., 2 De (J. & S. 591 ; Swinfen ». S., 27 B. 148. (c) 21 & 22 Vict. c. 27. 32 OF THE ADMINISTEATION OF ASSETS. estate come to the hands of the executors or admi- nistrators. It sweeps round for the property to be administered, — that is its principal object. It makes the executor or administrator accountable, and esta- blishes and defines the foundations of the general trust or liability, the subordinate rights under which are afterwards to be carried out and executed; and then proceeds to direct, as secondary matters, the accounts of debts and funeral expenses and of the legacies. In the creditor suit, on the other hand, the first and cardinal direction, as would be anticipated, is to take the account of the debts, " of what is due to the plaintiff and' all other creditors." Again, the creditors' decree does not touch the real estate at all, imless there is a deficiency of personalty for. payment of debts ; but the direction, on the other hand, in the asset suit for administration of the real estate is not dependent on this contingency. In the latter case, if there is ant/ real estate, the decree may proceed to deal with it, whether the personal estate is or is not ex- hausted by the debts or funeral expenses (a). Effect of By the decree, however, in either case, the Court is nisteation ^^ eSect constituted the trustee in the place of the exe- decree. cutor or administrator, of the funds which may be got in in the suit ; and after once the decree is pronounced, (a) These eoDsideratioiiB are sometimes of practical importance, as, e.g., where a question arises as to the expediency of producing a creditor or a legatee to initiate the administration ; for though the Court vill generally mould the administration according to the exigency of the case yet ordinarily the umal form is followedj and it is therefore well to take that course, in -which the usual decree will itself be most applicable and useful. OF THE TITLE TO THE ADMINISTRATION. S3 no step can safely be taken by such executor or admi- nistrator without the sanction of the Court, duly apphed for and obtained in the pending suit for admi- nistration (a). And such is the operation of the administration decree, with the accounts and inquiries, advertisements, proofs, certificates, orders, and further decrees conse- quent thereupon, that the parties prosecuting it are enabled to work out in every ramification, the entire collection, ordering and distribution, and, in a word, the complete administration, of the estate which is the subject of it. The outstanding property (if any) being ascertained and got in, is, with the assets already in the hands of the executor or administrator, secured in Court; the funeral and testamentary expenses, and then the debts, according to their order, are ascertained and liquidated, or placed in course of liquidation ; the legacies (if any) including annuities, are taken account of, and provided for; and lastly, the clear residue is declared ; and if that residue is settled, then the amount representing it, after payment of the costs of the administration, is set apart, and the trusts to which it is subject are put in course of execution; (a) Widowson v. Dnck, 2 Mer. 494, as to the exercise of a power of invest- jnent ; Mitchelson v. Piper, 8 Sim. 64, payment of debts ty the executor ; Oldfield V. Cobbett, 6 Beav. 515, as to bringing actions ; and see Hill on Trustees, 567, where it is laid down, on the above cases, that "when » bill is filed in the Court of Chancery for the execution of a trust, and the trustees have appeared and put in their answers, and thereby submitted to the jurisdiction, the maruigement of tJie trust is taken out of their hands, and they cannot in general take any further step except under the direction or with the sanction of the Court." D 34 OF THE ADMINISTEATION OF ASSETS. while, if the residue is not settled, the amount repre- senting it is at once distributed, after payment of the costs, among the residuary legatees, or the next of kin, as the case may be (a). Section 2. Of the Title to the Administration. The parties It will have been gathered from the preceding the ad- Section, that, as a general rule, the parties entitled to mimstra- q^j^j^jjj -tjjg administration in Chancery of the assets of a person deceased, testate or intestate, may be ranged under the three following heads, viz. : 1. Cre- i; His creditors, whether by simple contract, specialty, or otherwise. 2. Bene- 2. The persons beneficially interested in his estate ; ^liether as legatees, particular or residuary, or as next of kin; and in the case of real estate, as devisees or heirs, s. Execu- 3. The executor or administrator, or, in the case ministra- 0^ ^^^al estate, the devisee in trust. trasteea '^ov the right of the first and second of these 1 & 2. Ore- classes of persons, viz., the creditors and beneficiaries, tene- ^0 administer the estate in Chancery, is recognised ficianes. y^j ^^ Court as of course, subject only to a forfeiture of, or liability to costs, if the right is capriciously Their title or unreasonably exercised (6). AH that is necessary to ad- (o) See Appendix A. (5) The effect upon this right of an admission of assets (or an admission hy the executor or administrator that he has in hand enough to meet the demand, so as to supersede the necessity of an account heing taken in Court to test this sufficiency), is considered below, Chap. I., s. 4, p. 60. OF THE TITLE TO THE ADMINISTEATION. 35 to entitle a person [or several persons] suing in minister either of these two characters, to a decree direct- sona^'^ ing the administration which is asked for, is proof — ^s***^- first, that the applicant or plaintiff is what he repre- sents himself to be, viz., a creditor, or a legatee, or next of kin, — or an heir or devisee, as the case may be; and secondly, that the defendant is executor or administrator or devisee in trust, and consequently accountable to the parties interested in, or claimant upon, the estate which he holds. On this being proved, or, if the suit be by bill and answer (as under the old practice was the case) admitted, the decree, directing the administration, is of course («). Any allegation or proof in answer to the plaintiff's case, of a deficiency or non-existence of assets, or that such assets as there are have been already fully and duly administered and parted with, is no defence. The decree must go notwithstanding: though if the plaintiff have notice beforehand that the state of the assets is such that no possible advantage can result from the proceeding, and this is proved in the cause, — the plain- tiff, if he nevertheless insists on prosecuting his rights, wiU be deprived of his own costs, or on an adequate case, be mulcted in the entire costs of the proceeding (J). (o) See the two next following notes. (i) King V. Bryant, 4 Beav. 460 ; Puller v. Green, 24 B. 217 ; wiere the plaintiff, under the cironmstances mentioned in the text, had personally to pay the costs of the suit. And see Greaves v. Bryant, 1 Con. & L. 267, , where the plaintiff's dett hairing heen discharged before suit, the suit was ; retained for the other creditors, the plaintiff losing his own costs, and \ paying the extra costs occasioned by his unfounded claim ; and Bie also Att.-Gen. v. Gibbs, 1 De G. & S. 156. B 2 36 OF THE ADMINISTRATION OP ASSETS. This rule, by virtue of which the decree for account and administration is held to be matter of right, on simple proof of the accounting relation in question subsisting between the parties, appears to be founded on the fundamental doctrine of Courts of Equity, which holds an executor accountable for his dealings, and at aU times bound to state and justify them by voucher and evidence, to those who are interested in the estate, whether as creditors or beneficiaries. In support and illustration of these positions, it may be sufficient to refer to the cases of Law v. Sunter {a), decided by Lord Gifford, M.E. ; and Walker V. Woodward {b), by the same Judge, as those decisions are explained by Sir James Wigram, V.-C, in the case of Tomlin v. Tomlin (c) ; the principle common to the three cases, and one on which they all proceed, being this, viz., that in a suit for account against executors, all that it is necessary to prove at the hearing, and in order to entitle the plaintiff to the common preliminary decree for account and admi- nistration is, that the defendant is an accounting party, and the plaintiff a party, or one of the parties, to whom he is accountable. Any evidence beyond this, going to prove of what the assets may consist, though it may be admissible with a view to the subsequent proceedings in taking the accounts, is, according to the above decisions, taking them together, irrelevant at the hearing of the cause, inasmuch as the only point (o) 1 Russell, 101. (6) lb. lor. (c) 1 Hare, 236. OF THE TITLE TO THE ADMINISTEATION. 37 tlien at issue is, whether the defendant is or is not accountable, and if so, whether the plaintiff is or is not a person entitled to avail himself of this liability on the part of the defendant (a) : and this because the decree for account and administration is, in fact, matter of right, and issues ex debito j'ustiticB, as soon as the accounting relation is proved to subsist between the parties. Now what has just been said, applies, it is to be "^^^ *^*le . , to ad- observed, strictly and primarily to the case of personal minister (a) " The case of Law ». Hunter," says Sir J. Wigram, in Tomlini;. T., 1 Hare, 245, ' ' according to the report, appears to involve two propositions ; first, that on a bill to have the account of the assets taken, the only decree the Court will make is a decree to take the accounts generally, and will not at the hearing of the cause declare that any particular property forms part of the assets : and secondly, that the Court will not allow any evidence to be received which has for its object the proof of what the assets consisted. The first of these propositions is true, as matter of general practice, and the danger of doing injustice by mere sm-prise is a strong argument against lightly departing from that practice." [This appears to mean, that a declaration at the hearing that this or that par- ticular debt or property was part of the assets, might turn out afterwards to be mistaken, and so work injustice if made thus prematurely.] "But as to the second proposition, " the learned Judge continued, " it has always appeared to me that there is great difficulty in following the case of Law v. Hunter, to the extent of rejecting [the evidence] altogether, for the evidence tendered to prove what the assets were, if inadmissible for the purpose of obtaining a declaration that certain particulars constituted part of the assets, was still material to show that the plaintiff was entitled to a decree for account." And on this latter ground, Sir James Wigram concludes that the evidence which seems (on the very same general principle) to have been in fact rejected in Law v. Hunter, ought really to be admitted. Thus coinciding with and illustrating the general principle which I have stated, viz., that at the hearing of an adminis- tration suit, nothing in fact is relevant except that which shows, and so far as it shows, that the defendant is an accounting party, and accountable to the plaintiff. 38 OF THE ADMINISTRATION OP ASSETS. the real estate. But the Act of 3 & 4 Will. IV.j c. 104, commonly m "wiiL °^^®^ ^^^ ^^^^ Romilly's Act, which makes real estate ly., c. 104. assets in equity for the payment of simple contract debts, has had the effect of extending to the case of real estate the same, or substantially the same, rights of administration, which prevail over personal-estate. For since that Act, it has been held, not only that simple contract creditors, [who are expressly mentioned in the Act,] but a;lso legatees, devisees, heirs, and next of kin, are entitled to enforce administration of both the real and personal' estates of the testator or intestate, in the like manner and on the like proof of title as the same persons might previously have enforced an adminis- tration of such personal estate only («). Finally, the title of both creditors and persons beneficially interested in the estate of any person deceased to an administration of that estate by the Court of Chancery as matter of ordinary right, is now recogniseid both as to the personal and the real estate (o) Price V. P. 15 g. 484; Eodney v. R., 16 S. 307. Before this Act, it may he observed, so completely separate were the rights against the realty and those agarast the personalty, that » hill for administration of both real and personal estates in one suit was held demurrable for mul- tifariousness (Dunn V. C, 2 Sim. 329), in a case where the heir and next of kin joined as co-plaintiffs to seek against the administratrix, adminis- tration of both real and personal estates, those estates being in fact under the then state of the law, not only entirely separate and distinct, but the parties interested in the one having no interest at all in the other. But since the Act it is otherwise, for now under the Act, the simple contract creditors and other parties previously interested in the personal estate only, have, in fact, an interest in seeing the real estate also administered as well as the personal, and vice versd. And in Innes v. Mitchell, 4 Drewry, 97, an objection similar to that in Dunn v. D., was overruled on the ground of the Aot of Parliament referred to above having altered the rights of the parties in the manner above mentioned. OF THE TITLE TO THE ADMINISTRATION. 39 by Act of Parliament. For the Chancery Procedure Act of 1853 (a), in simplifying the procedure to be pursued for obtaining administration by creditors, legatees, and next of kin, assumes or implies that proof by the claimant that he fills one of the above characters, will entitle him at once to a decree against the executor or administrator. And the same statute, also, in laying down ruleg for dispensing with parties to administration suits, where persons in the same interest as the applicants are already before the Court, refers to, and in fact declares the titles of the several classes of persons interested in the estate, to the ordinary decree for administration (J). The title of the executor or administrator again, [or 3. Execu- of the devisee in trust,] to the administration of the minlstra- estate of his testator or intestate in Chancery, is also jrStee". a matter of right, subject, however, to a more stringent rule for depriving him of, or as the case may be, fixing him with, the costs of the proceeding, if he obstinately or unreasonably exercises his right of administering the estate in Chancery. "In cases of pertinacious refusal " (to produce his accounts out of Court), said the present Master of the Eolls, in a late case (c), " the (a) 15 & 16 Vict. c. 86, ss. 45, 47. (6) The statutory rules referred to are the first three in the 42iid section of the Act (15 & 16 Tict. c. 86), and they declare the titles successively, 1st, of any residuary legatee or next of Mn ; 2nd, of any person interested in a legacy charged upon, or in the proceeds of the sale of, real estate ; and 3rd, of any residuary devisee or heir— to a decree for administration adapted to hia case— without serving any other person in the same position in point of interest as himself. (c) White V. Jackson, 15 Beav. 191 ; and see Sir J. Leach, V.-C, in Taylor v. Grlanville, 3 Madd. 176 ; Levrin on Trusts, 664. 40 OF THE ADMINISTRATION OF ASSETS. Court might give " [against an executor] " the costs up to the hearing ; but an executor has a right to have his accounts taken in Court." Yet though as a general rule the Court fuUy recognises the right of an executor or administrator, as it does that of a trustee, to the pro- tection of its decree in the administration of the estate; and gives him therefore full costs as between solicitor and client (a), in all cases where such administration is properly sought, still it does not forget that the estate is not the property of the trustee, but of the beneficiaries ; and if, therefore, the interposition of the Court be needlessly or vexatiously invoked or made necessary, the executor, administrator, or trustee will be deprived of his costs, or ordered to pay the costs occasioned by the proceeding, as the circumstances of the case may require {b). From the numerous authorities to be found in the books in support of these positions (h), the following brief statement, extracted from the judgment pro- nounced by Sir John Leach, V.-C, in the case of Taylor v. Glanmlle (c), may perhaps be selected as a sufficient exposition of the law. " Trustees," says that learned Judge, " are entitkd to the protection and direction of the Court in the exercise of their trusts, and they can never be called upon to pay costs, unless they refuse to act without suit, merely from obstinacy and caprice. It would be contrary (a) Smith's Practice, 822, 6tli ed. ; Beames on Costs, 157, 216. (6) The authorities will be found collected in Lewin on Trusts, ith. ed., p. 259, and p. 664 and following pages. (e) 3 Madd. 176. OF THE TITLE TO THE ADMINISTRATION. 41 to the interests of society to hold otherwise." And it may be taken, shortly and generally, to be the test (on this point of whether a trustee or executor is or is not justified in any given case, in resorting to an administration in Court), that where there is a bond fide doubt of fact or law, there he is justified, and where there is no such doubt, then he is not justified, in going to the Court. Thus on the one hand, in the case of Wylly's Trust (a), where there was such a bond fide doubt, the trustee was held warranted ; and in Cater' s Trust (b), where there was not a sufficient' doubt, the trustee was held not warranted in coming to the Court, and was accordingly fixed with the costs. The reason, indeed, why the executor or trus- tee is held entitled, as of right, in all cases (subject only to costs if he exercises the right against or with- out reason), to the administration of the Court, is, as we have seen, from the authorities already cited, that such administration is the most efficient, or rather the only efficient, protection which he can have in the dis- charge of the duties of his office, and the distribution of the estate. And as to the extent of this indemnity, it may be useful to refer to one or two of the more prominent authorities. "Where an executor," said the present Master of the BoUs, in Dean v. Allen (c), " in giving the Court all the information he possesses, * (a) 28 Bear. 5iS. This and the case next cited are selected from among many others, as furnishing apt instances of an authority in support of the position in question. (6) 25 Beav. 361, 366. (c) 20 Beav, 1. 43 OF THE ADMINISTRATION OF ASSETS. acts under the order of this Court, he will be protected from liability under all circumstances." And in the case of Fletcher v. Stevenson {a), Sir J. Wigram said, " The executor, so far as he is personally concerned, would, I apprehend, be safe in acting under the direc- tion of the Court," and that notwithstanding an open liability on the testator's covenants ; and so in Under- wood V. Hatton (b) ; " where the Court administers the assets, the trustees (and executors) are protected from all claims ; " though the legatees after payment may be liable to refund to meet an after made claim (c). Nor can any other course give the executor complete indemnity (d). Accordingly the same Act of Parliament, which has already been cited as recognising the ordinary and established right of creditors and beneficiaries on the estate of a deceased person, to a decree for the admi- nistration of that estate in Chancery, in like manner recognises as established the right of an executor, administrator, or devisee in trust to a similar adminis- tration decree respecting the estate of his testator or intestate (e). And the foun3ation of this rule in the (a) 3 Hare, 370. (6) 5 Beay. 36. (c) See also Noble v. Brett, 24 B. 499 ; Dibbs v. Green, 11 B. 483 ; Bennett i). Lytton, 2 Jo. & H. 165. (d) See the oases of Low v. Carter, 1 B. 426 ; Knatobbull v. Fearnhead, 3 My. & 0. 122 ; Hill v. Gomme, 1 B. 540 ; Spode v. Smith, 3 Russ. 511, in whicli executors having wound up and distributed the estate on their own responsibility and without the protection of the Court, were made personally responsible for claims afterwards appearing. (e) By the 8th rule of the 42nd section of the Chancery Reform Act of 1852 (15 & 16 Yict. u. 86), "Aoy executor, administrator, or tmaioo 7,.=v OF THE TITLE TO THE ADMINISTEATION. 43 case of an executor, administrator, or trustee plaintiff, appears to be the same as that on which the converse rule is vested, in the case in which the executors, administrators, or trustees, are defendants, viz., the ex- istence of the accounting relation between the parties. That the executor is accountable is a matter of com- mon and ordinary law ; he is entitled, therefore, always to clear himself by having his accounts established and allowed by the only judicial tribunal which has power to compel and to take such accounts ; just as any party beneficially interested in the result of such accounts is entitled always to test the executor's accuracy and honesty by pressing the accounts against him adversely. And the Court has even gone so far as to hold (a) that where the suit is (technically at least) admitted, and must therefore be taken, to be collusive, this is no objection to the decree going for administra- tion and protection. Such then are the general rights to an administra- tion in Chancery possessed by the three principal classes of parties who are interested in the result of such administration, viz., 1st, The creditors in the estate. 2ndly, The beneficiaries, or persons benefi- cially interested in the estate, whether as legatees of personalty, or devisees of reality ; and 3rdly and lastly. The executor, administrator or devisee in trust who holds the estate and is accountable to its owners for its application. obtain a decree agaiiiBt any one legatee, next of kin, or eesiwi que trust, for tlie administration of the estate, or execution of the trusts," (o) Humble v. Shore, 3 Hare, 119. 44 of the administration of assets. Section 3. Of the course of procedv/re to obtain the Administration, According to the ancient and regular course of the Court, a decree for accounts with a view to the administration of the estate of a deceased person against his executor or administrator, could be ob- tained only in a suit regularly instituted, on biU filed, answer put in, and case admitted, or proved by evidence in due form after the cause was at issue, just as in the case of a decree for any other pur- pose, in the most hostile or complicated case. The delay and expense thus occasioned in cases in which, as in ordinary administration suits, the decree was of course on proof of the accounting relation between the plaintiffs and defendants {a), and was, moreover, almost always, of necessity, admitted, led to several attempts to alter the old and established course of proceeding, and to substitute, at least in simple cases, a less cumbrous and tedious process. Sir (J. The first of these attempts ■ at improvement which Turner's , . , . Act, 13 & can be said to have attained any real success, and J 3g'g'l9_ which consequently requires notice here, as having introduced any permanent change in the procedure, is that which resulted in the 19th section of the statute (6) known as Sir G. Turner's Act, and which received the royal assent in July, 1850 (c). (a) See ante, pp. 35, 36. <6) 13 & 14 Vict. c. 35. (c) The system of procedure by claim, which preceded this Act by a few months, havijig been introduced in April, 1850, I omit firom consideration, OP THE COUBSE OF PEOCEDDEE. 45 By that section, after reciting that it is expedient to provide means for enabling executors or administrators of deceased persons to ascertain whether there are any- outstanding debts or liabilities affecting the personal estates of such persons, without the delay and expense of suits to administer such estates : it is enacted that it shall be lawful for the Court of Chancery upon the appli- cation of such executors or administrators, by order to be made upon motion or petition of course, to refer it to the Master to take an account of such debts and liabilities : provided that no such order were made until the expiration of one year after the death of such deceased person, or pending any proceedings to administer his estate ; and that in case, after the statutory order, any decree for administering the estate should be made, it should be lawful for the Court to stay or suspend pro- ceedings under the statutory order. But the enactment, it will be seen, did not enable a Insuf- general administration at aU ; the order to be made thef enLt- being limited to an account of debts and liabilities, and ™™*' that too only of those affecting the personal estate {a); and it was moreover confined to applications by executors and administrators as plaintiffs. It was reserved, therefore, for what may be called, without much inaccuracy, the Chancery Eeform Act of 1852 (b), to apply an adequate remedy to the evil. inasmncli as that procedure, after having been in fact superseded by the more effectiTO and equally speedy proceeding now in use, has, by the Consolidated Orders of 1860, been finally and altogether abolished. (a) In the case of Ke Moore, 2 W. R. 85, the section was expressly held to be inapplicable where there is real estate. (6) 15 & 16 Yict. c. 86, 46 OF THE ADMINISTRATION OF ASSETS. Adminis- tration of personal estate, on summons. Adminis- tration of real estate, on sum- mons, in certain cases. And the importance of the change introduced by this statute into the system of procedure for administration of deceased persons' estates, appears to justify a some- what more detailed notice of its enactments, than in a work not directly or professedly dealing with the prac- tice of the Court, might otherwise have been strictly admissible. I. Under the 45th section of this Act (a), being the sec- tion relating to administration of personal estate, any person claiming to be a creditor, legatee, or next of kin, of a deceased person, may obtain as of course, without bill filed, or any other preliminary proceeding, a sum- mons from the Master of the EoUs or any of the Vice- Chancellors, requiring the executor or administrator, to attend at the Chambers of the Judge to show cause why an order for the administration of the personal estate of the deceased should not be granted: and upon proof of service of the summons, or on the ap- pearance of the executor or administrator, the Judge is empowered discretionally to make "the usual order for the administration of the estate of the deceased," with such variations, if any, as the case may require, and the order so made is to have the force and effect of a decree on the hearing of a cause between the same parties. II. Again ; under the 47th section, being the section , relating to the administration of real estate, any per- son claiming to be a creditor of amy deceased person, or interested under his will, may obtain in a summary way, in the manner before provided with respect to the personal estate, an order for the administration of (o) 15 & 16 Vict. c. OP THE COURSE OF PEOCEDUEE. 47 the real estate of a deceased person, where the whole of such real estate is hy devise vested in trustees, who are hy the will empowered to sell such real estate, and authorised to give receipts for the rents and profits thereof, and for the produce of the sale of such real estate; and the pro- visions before contained with respect to the application for such order in relation to the personal estate are extended and made applicable to an application for the same order with respect to real estate. The short effect of these sections, it will be seen, is to substitute, in all cases to which they apply, a simple " summons " in the Chambers of the Judge, for the machinery of bill and answer, and to enable the Judge, on this summons, to make the same " usual administra- tion decree,'' which in like circumstances the Court might have made, in a suit regularly constituted by bUl. And the scope and operation of the two sections, Exceptions taking them together, is so extensive, that it will be operation not only the shorter but also the clearer and more in- °f *\® ■' statute. telligible course, to enumerate negatively the exceptions to their operation, — to say, in a word, where they do not apply, than to ascertain their application positively, by going first of aU through the several cases in which they do. Assuming, then, as for all practical pur- poses it may be assumed, that the application of the statute is universal, the three following exceptions wUl be found to its operation, namely : — 1. The presence of real estate constitutes generally 1. Keal an exception to the application of the statute, and tenders it necessary to proceed by bill. For real estate can be administered on summons under the 48 OF THE ADMINISTRATION OF ASSETS. statute only under the special circumstances men- tioned in the 47th section; that is to say, it is necessary that the whole of such real estate should he by devise " vested in trustees, who are by the will empowered to sell such real estate, and authorised to give receipts for the rents and profits, and for the pro- duce of the sale." Now it is not very often that the whole of a testator's real estate without any exception is devised by him to trustees with power to sell and give receipts for the rents and proceeds ; so that the 47th or real estate section is not of very frequent application. In the case of an intestacy it can never apply. And where there is a will, unless the testator has made the particular disposition above mentioned, the section is equally inapplicable {a). 2. Devas- 3. The second class of cases in which the statute is breach of inapplicable, and a decree, consequently, cannot be had on summons, is where it is sought to make a hostile case against the executor, administrator, or trustee, in respect of any devastavit, default, or breach of trust, and to have against him the consequent relief. In such a case the defendant ought, it was considered, to have the opportunity of setting forth his defence by answer and evidence in the most complete and formal manner ; and accordingly it is still necessary, in every such case, to proceed by biU. And thus it has been held, and may be considered settled, that vnlful default (a) It has, ho-wever, been held, in a case where real estate was devised, charged with the payment of the testator's debts and funeral and testa- mentar;r expenses, that the section applied, Ogden e. Lowry, 4 W. K. 166. See Piggott v. Tonng, 7 W. E. 236. trust. OF THE COUESE OF PEOCEDUEE, 49 accounts, as they are called, viz., accounts charging an executor or administrator not only with assets actually received by him, but with those which, hut for his loilful default or dereliction of duty, he might have received, — cannot properly be directed on summons under the statute {a). For such a decree would, in fact, be in excess of the jurisdiction conferred by the statute, the words of which are " the usual order " for administration. And • generally, perhaps, it may be stated, that where there is any further or other issue raised by the nature of the decree applied for by .the plaintiff, than the simple liability of the defendant, as executor or administrator, to account in the usual form for assets actually received by him, the proceeding ought to be by bill ; and the decree, as being special, cannot regularly be made upon summons (S). Thus, on a summons taken out, it has been held, that there can be no admission of assets (c) by the defendant executor which can entitle the plaintiff at once to a general decree for payment, without taking the accounts {d). For such a decree would not, iu fact, be at all a decree to account, — " the usual order for administration," — which alone (though certainly with or without variations) is authorised by the statute. So where a release is in issue, a decree will not be made on summons (e). So, if it is requisite to (a) Partington v. Eeynolds, i Dr. 253 ; Blakely v. B. 1 Jur. N. S. 368 ; Ee Fiyer, 3 K. & J. 317. (6) See cases cited in last note, and also West v. Laing, 3 Dr. 331 ; Smith V. Spilsbnry, 8 W. E. 696 ; 1 Dr. &S. 163. (c) As to admission of assets, see post, p. 61. (d) Ee WUtshire, 8 W. E. 133. (e) Acaster v. Anderson, 19 B. 161, 50 OP THE ADMINISTEATION OF ASSETS. determine any question as to property specifically bequeathed, the summons-decree, which extends only to property not specifically bequeathed, is not applic- able (a). And where an executor refused to account, and there was a question of construction on the will, it . was held that a bill was justified, and the costs were allowed accordingly (6), though there can be little ques- tion that in such a case there is jurisdiction to make the decree on summons (c). The result, indeed, of pro- ceeding by bill instead of summons — in cases where a summons is applicable — is not that the suit by biU fails for want of jurisdiction, — for the statute does not take away, or in any manner prejudice the ancient jurisdiction on biU, or in terms compel a procedure by summons, — but the result of the statute is that the plaintiff is in the first place punishable in costs (which is the course usually taken against a plaintiff unneces- sarily filing a bill where a summons would be suffi- cient) (e); and that, in the second place, the Court will stay proceedings in the suit by bill, if a summons- decree comprehending the same relief as is prayed by the bill is obtained by another party at any time before the first suit is heard (d). s. Execu- 3. And this leads me to the third and last class of nUtrat^' cases in which the statute is inapplicable ; I mean the (o) West V. Laing, 3 Dr. 331. (5) Smith V. Spilsbury, 8 W. R. 596 ; 1 Dr. & S. 153. (c) See Smith v, Spilsbmy, uhi supra. {d) Ritchie v. Humberstone, 22 L. J. Ch. 1006 ; and see Harris f>. Gandy, 1 D. F. & J. 14 ; and Furze v. Bennett, 2 D. & J. 125. In Duffort V. Arrowsmith, 7 D. M. & G. 434, the anestion (reported) yraa, by which Court the order to stay should be made. OF THE COURSE OF PEOCEDUEE. 51 case in which an executor, administrator, or trustee or trustee seeks to administer the estate as plaintiff. This case, P*^"' • it is to be noted, is expressly excluded by the frame of both the sections ; the power of applying for the admi- nistration-order being conferred, in each case, on "any person claiming to be a creditor, legatee, next of kin, or interested under the will," but not on an executpr, administrator, or trustee. ^It will be recollected, how- ever, with reference to this particular omission, that the 19th section of Sir Gr. Turner's Act {a), above cited, applies to this omitted or excepted case, and to none other. And this last-mentioned enactment, having been since amended by the 14th section of the Law of Property Amendment Act of 1860(6), and thereby extended so as to authorise applications by summons as well as by petition, does in effect supple- ment, or is supplemented by, the Act of 1853, and constitutes therewith a complete code of procedure in the matter now in question. The result, however, notwithstanding this extension, stUl is, that the power to administer on summons possessed by executors, or administrators, is by no means so ample or effica- cious as that conferred on creditors and legatees by the summons sections of the Act of 1853(c). For by the 14th section of the Act of 1860, intituled "3hi Act to further Amend the Law of Property " (a), which ^js the enactment just referred to, the words in the 19t^^^ section of Sir G. Turner's Act, excluding applications >«, (a) 13 & 14 Viet. o. 35. (6) 23 Sl 24 Viet. c. 38, s. 14. (c) 15 & 16 Vict. c. 86, ss. 45, 47. E 2 52 OF THE ADMINISTRATION OF ASSETS. under the section for a year after the testator or intes- tate's death, is indeed repealed, and applications by executors or administrators under the section are further authorised to be made by summons in Chambers as well as by motion or petition ; hut in respect of the extent of the relief which he can obtain, the executor or administrator is /still left precisely where Sir G. Turner's Act ori^ gitially placed him, and is consequently very far indeed from being in the same position as the creditor or legatee applying under the general Act of 1863. For the relief under Sir G. Turner's Act, it will be remem- bered, is restricted to a simple account of debts and liabilities affecting the estate of the deceased, and this fragment of administration is still all that an executor or administrator can obtain,- without filing a bill {a). On summons taken out by himself, in fine, the exe^ cutor or administrator can obtain protection only so far as regards his dealings mth creditors ; but can obtain no protection whatever either as regards his receipts in respect of the estate, his payments of legacies or residue, (a) The following usual form of the order, made on the application of an executor or administrator under the Act, ■will show oonclusively how limited is the relief which can be thus obtained. " Upon the motion (or the appli- cation) of A. the executor of the will (or administrator of the effects) of B. deceased, and on reading probate of the will (or letters of administration) of the said B., granted on the day of , to the said A., and an affidavit of A. that no proceedings are pending to administer the estate of the said B., this Court doth order that an account be taken of the debts and liabilities affecting the personal estate of the said B. ; and in taking such account debts are to be distinguished from liabilities, and liabilities certain from liabilities contingent ; and the personal estate of the said B. is to be applied in payment and satisfaction of such debts and liabilities of the said B. in a due course of administration. Liberty to apply.'' 1 Seton Decrees, Srd ed. pp. 147-8. OF THE COURSE OF PROCEDURE. 53 or the construction he may put upon the will. But to all these points , the protection of a regular admi- nistration-decree clearly and sufficiently applies; the accounts extending, as wiU be rememhered, not only to the debts and funeral and testamentary expenses, but also to the receipts of the executor or administrator, to the outstanding estate, to the legacies and annuities. This difference of position, however, between an executor or administrator, and a creditor or legatee, as regards his power to obtain administration of the estate upon summons, undoubtedly exists, whatever may be the reason of it. And an executor or admi- nistrator cannot, as the law now stands, obtain a fuU and regular administration-decree, touching the per-" sonal estate of his testator or intestate, except by bill regularly filed. The result of what has been said is shortly this : — I. That an administration of the personal estate of a Summary deceased testator or intestate may now always be ceding part obtained on summons in Chambers, except in these °^^^^ three cases : I. Cases 1. Where it is sought to extend the decree to real "^^ estate, the same not being wholli/ devised to trustees. Procedure with power to sell and to give discharges for the rents and proceeds. 2. Where hostile or special relief is sought in respect of any default, devastavit, or other breach of duty by the executor or administrator. 3. Where the executor or administrator is plaintiff. In these three cases a bill is stiU necessary, subject, however, to this : — 54 OF THE ADMINISTEATION OP ASSETS. II. Under II. That a partial administration of the personal Turner's estate of a deceased testator or intestate, extending to ^'^- an account and payment of the debts and liabilities, but no further, may be obtained on summons by an executor or administrator under the provisions of Sir G. Turner's Act, as amended by the Law of Property Amendment Act of 1860. Form of The course of procedure, then, being thus far deter- biil'neoes^* mined, it is next to be observed, that in applications to sary or ^j^g Court by creditors or legatees, the applicant, if the case be one in which he must proceed by bill, has the option, either of asking, on behalf as well of himself as of all other the creditors or legatees, as the case may be, of the deceased, for a general administration of the estate, — or of Hmiting the administration sought by him to his own particular demand. But if the case be one where he ought to proceed by summons, the only administration he can obtain is a general one («). The distinction, in point of effect, between a general administration on behalf of the whole class of credi- tors, and a partial administration directed on a suit by a single creditor, with a view to having his own demand satisfied, is illustrated by the case of Attorney- General V. Cornthwaite {h), which was a suit of the latter description, and in which the ruling was to the Single following effect : — " Where a single creditor files a bill for payment of his own debt only, the Court does not (a) See Consolidated Orders, 35, Kule 3, Sch. E. 2, specifying the form of the summons. (6) 2 Cox, 45; S. C, 1 Seton, 136, where the decree is given, and in p. 117, it is added, "and all debts of a higher or equal nature might be paid by the executor, and would be allowed him in his discharge." 03? THE COTJESE OF PEOCEDUEE. 55 direct a general account of the testator's debts, but only an account of the personal estate, and of that particular debt, which is ordered to be paid in a course of administra- tion." In other words, the administration is limited to the getting in of the estate, and the payment of the single debt of the creditor suing, and of such other debts only, i. e., debts of a higher nature, as the payment of the principal debt " in a course of admi- nistration " necessarily implies. The consequence of this was, that the creditor suing thus singly might obtain a preference over other creditors of equal degree, just as he might by bringing an action for it at law. This result, and the principles on which the single Superior suit — apparently the original form of the creditor's of ^generaT suit for administration — became extended to the ^'"*^' general form which is now in established use, are stated as follows by Lord Eedesdale, in the " Treatise on Equity Pleading," m words which may be cited as authoritative (a). " When the object of a suit," says his 1- % a 11,. ,£■ 1 1 1 p creditor or lordship, is to charge the personal property of a creditors. deceased person with a demand, it is generally suf- ficient to briag before the Court the person constituted by law to represent that property, and to answer all demands upon it ; and the difiiculty of bringing before the Court, in some cases, all the persons interested in the subject of a suit, has also induced the Court to depart from the general rule " (b) [requiring this to be (o) Mitford, 165-7, ith ed. (6) This rule is now raried by extending the principle of representation as between parties in the same mtereat, to every class of persons interested 56 OF THE ADMINISTEATION OF ASSETS. done] "where the suit is on behalf of many in the same interest, and all the persons answering that description cannot easily be discovered or ascertained. Thus, a few creditors may substantiate a suit on behalf of themselves and the other creditors of their deceased debtor, for an account and application of his assets, real as well as personal, in payment of their demands ; and the decree being in that case applied to all the creditors, the other creditors may come in under it, and obtain satisfaction of their demands equally with the plaintiffs in the suit ; and if they decline to do so, they will be excluded the benefit of the decree, and will yet be considered as bound by acts done under its authority. As a single creditor may sue for his demand out of personal assets, it is rather matter of convenience than of indulgence to permit such a suit by a few on behalf of all the creditors; and it tends to prevent several suits by several creditors, which might be highly inconvenient in the administration of assets, as well as burdensome on the fund to be administered; for if a bill be brought by a single creditor for his own debt, he may, as at law, gain a preference by the judgment in his favour over other creditors in the same degree, who may not have used equal diligence " (a). By suing on behalf of the class, then, instead of singly, a creditor abandoned his chance of obtaining in the resnlti of tie administration, irhether as plaintiffs or defendants. See the Chancery Procedure Act of 1852, 15 & 16 Vict. c. 86, s. 42 mentioned above, p. 39 ; the cases on which will be found collected in Mr. Morgan's edition of the Chancery Statutes, p. 222, 2nd ed. (o) See, also, 2 Wms. Bxovs. 1820, 6tb ed, OP THE COUESE OF PROCEDURE. 57" a preference, but he obtained, as the law stood in Lord Redesdale's time, a more easy and complete administration. It is to be noted, however, that where it was desired Eeal assets, to reach and administer real assets (which is at present, suit to as we have seen, one of the principal cases in which ^'dmiMster. the proceeding by bill is necessary, and a summons is for the most part inapplicable), a bill by a single specialty creditor only, and not framed on behalf of himself and the other creditors as a class, could not be sustained. And such is stiU the case. "It [is] not the course of the Court," said Vice-Chancellor Wood, in Thorne v. Kerr (a), " where a creditor sues singly [for administration], to make a decree as to the. real estate." So Lord St. Leonards, in Busby v. Seymour {h), observed that the bill, which was for satisfaction of a liability arising out of a devastavit committed by the defendant, being "not filed on behalf of the plaintiffs and the other creditors, but simply on their own behalf, the decree in it was property confined to an account of the personal assets " (c). In Tomlin v. Tomlin (d), Vice- Chancellor Wigram puts, the same thing in perhaps a truer point of view, when he says, referring to the case of Johnson v. Compton (e), " that if personal assets do not exist, or are insufficient, and payment is sought to be obtained by administering real estate, the form of the decree is, a decree on behalf (a) 2 K. & J. 62. (5) IJ. & L. 527. (c) And see Johnson v. Compton, 4 Sim. 47 ; May v. Selby, 1 Y, & C. 0. 235. (rf) 1 Hare, 236 ; see pp. 247-8, (e) 4 Sim. 47. ■ 58 OF THE ADMINISTEATION OF ASSETS. oj all the creditors." And that learned Judge then explains the principle on which such general adminis- tration proceeds, as follows: — "Every general creditor," he says, " who comes in under the decree, has a right to question the claims of the other creditors ijpon the fund to which they must in common resort ; and this can only be done, with convenience, before the Master," or, in other words ; by making a decree common to all, and under which all, therefore, shall have a right to go in and object to the claims of any other or others of them. The foundation of this reasoning, it may be observed, seems to be the consideration that the real estate is (or was) a specific or limited fund, and one to which certain creditors only, and not all, have a right of resorting; and out of which, therefore, it would be inequitable that any one or more of the specific claimants should obtain an exclusive or pre- ferential payment {a). The rule, however, limiting single creditor suits, as they are called, — that is, suits by creditors for their own demands only, — ^to the personal estate of the deceased debtor, and excluding them from the real estate, is confined, it will be observed, to the relief by administration. The rights of bond creditors of a deceased person to come into equity to have a sak, as against the heir named in the specialty, of the de- ceased's real estates of the debtor (6), and satisfaction (a) The righta of the regpeetive olassea of creditors, inter se, and the liability of the different classes of assets to satisfy their respective demands, ■will be oonsidered in the 3rd chapter of this book, {b) Stillman ». Ashdown, 2 Atk. 608. OF THE COURSE OF PEOCEDUEE. 59 of their demands out of the proceeds ; and again, the rights of judgment creditors, whether under the present similar or the old law of judgments (a), are not affected or prejudiced hy the rule in question. Yet if the specific title just referred to fails, the plaintiff cannot, in such case, fall back, in the same suit, on his general character of specialty creditor, and have a decree for administration on his own account, and of the de- ceased debtor's real estate : for that would be an infringement of the rule against administering real estate for the benefit of a single creditor only. To effect that, the application ought to have been made on behalf of all the creditors [h). But it is this restriction, perhaps, to the personal estate which, among other causes, has made single creditor suits now " much out of use " (c). And on summons the decree must always be general {d). But if priority is sought, a single suit is stiU open, though it must be by bill. With respect to suits by legatees for administration 2. By a and payment of their legacies, whether general, specific, w^es™ or residuary, there appears to be no difference in point of form in the administration decreed, whether the application be by single legatee for his own legacy, or by one legatee on behalf of the class (e). A single suit by a pecuniary legatee for his own legacy is, (a) See 1 Seton, 234, Srd ed. note on "creditors' suit," and cases cited. (5) Chapman v. Chapman, IS B. 308. (c) 1 Seton, 117, 3rd ed. (d) See 36th General Order, ,Eule 3, Scb. K. 11. (e) Mitford, 167, 4th ed. cited below. 60 OF THE ADMINISTEATION OF ASSETS. indeed, often the most expedient course, as it gene- rally leads the executor, if the estate is solvent, to an immediate settlement, and this saves the expense of a full administration {a). But if administration is pro- ceeded to at all, it will in all cases he a general adminis- tration for the benefit of all the legatees, whether one sue for himself only, or the suit be on behalf of the class {b). And in a summons suit, there can be no order at all except for general administration (c). These points also are clearly and concisely laid down by Lord Eedesdale in the following passage {d) : — " By analogy to the case of creditors, a legatee is per- mitted to sue on behalf of himself and other legatees ; and as he might sue for his own legacy only, a suit by one on behalf of all the legatees has the same tendency to prevent inconvenience and expense [to the estate] as a suit by one creditor on behalf of all the creditors of the same fund ; but in a suit by a single legatee for his own legacy [unless the personal representative of the testator, by admitting assets for payment of the legacy, warrants an immediate personal decree against himself, by which he alone will be bound], the Court will direct a general account of all the legacies of the same testator, and payment of the legacy claimed, rateably only with the other legacies, no preference being allowed amongst legatees in the administration of assets." (a) See tie case of Sawyer «. MUls, 1 Mac. & G. 390. (5) Miiford, ubi awpra. (c) See the 45tli section of the statute 15 & 16 Vict. o. 86, atove stated, and 35th Gfeneral Order, Rnla 3, Sch. K. 2. (d) Mitford, 167, m ed. of admission op assets. 61 Section 4. Of the Effect of an Admission of Assets, and how stick an Admission is made. The admission of assets for payment of the legacy, Admission spoken of hy Lord Eedesdale in the passage cited at its effecti the conclusion of the preceding section, has the effect, if the plaintiff accept it (qi), of cutting short at once the procedure by way of administration, and of substituting for it a personal liability on the part of the executor or administrator making the admission, to pay at once the plaintiff's demand. And similarly in the case of a like admission made in a suit by a creditor. Where such an admission is made, then — to use the words of Mr. Justice Williams (b) — the plaintiff, whether creditor or legatee, " if his demand be uncontested or proved, is entitled to immediate payment of it, without taking the accounts " (c). And the admission, at law, has the effect of entitling a creditor to immediate judgment in an action for 'the debt (d). The important (a) Wall V. Bustby, 1 B. C. C. 484; Cnrtis v. Blow, 2 B. & Ad. 426. (6) Wma. Exors. 1868. (c) ■Woodgate v. Field, 2 Ha. 211 ; Connop v. Hayward, 1 T. & C. C. 33 ; see tbe decree in this case 1 Seton, 152, Srd ed.; Fhilantliropic Society V. Hobson, 2 My. & K. 857, and the admission of course refers to what the executor or administrator has received, not to what he may hare still in liand, after payments not efiectnal against the plaintiff. Kogers v. Soutten, 2 Keen, 598. But it has been doubted whether the executor's belief, stated in his answer, that the plaintiff's debt is due, is sufficient foundation for a personal decree. Hill v. Binney, 6 Vesey, 738. And see 1 Seton, 122, note on right to decree, and Wms. Exors. 1858, whence the words in the text are cited, and where the cases are collected, (d) 2 Bl. Com. 511, and 1 Saunders, 333 a, note 8; and see n. (/), same page, in Fatt. and Wms. ed. ; but " where debts are of an equal degree, the 62 OP THE ADMINISTEATION OF ASSETS. question, therefore, what constitutes such an admis- sion, seems properly to come under consideration here, before we proceed to the administration itself. What con- Where the admission is made in express words, in admission, the answer or otherwise, little difficulty arises (a). consttao-'^ Litigation generally turns on the effect of constructwe *iTe. admissions, i. e., admissions raised by construction of law, from acts or words of the executor or adminis- trator, implying, but not directly expressing, the admission in question. A familiar instance of the principle of such an admission is to be found in the Payment of payment by an executor of claims of lower degree, as lowCT^de-^ an admission of assets for higher ones (&). For ^^^- instance, payment of legacies is primd facie an ad- mission of the executor's having enough to pay the debts; because before any legacy could become pay- able, all the debts ought first to have been satisfied (c). executor may (at law) prefer any one creditor " [without thereby admitting assets for payment of the others of the same degree]. Ibid. (a) See ante, p. 61, n. (c). (5) ' ' An executor is lomid to plead a debt of a higher nature in bar of an action brought against him for a debt of an inferior nature, and riens idtra, if he has not assets for both, though the [higher] debt was not payable until after the death of the testator, . . . otherwise it will be an admission of assets to satisfy both debts." 1 Wms. Saunders, 333 a, note 8, citing iBock i!. Leighton, 1 Salk. 310. If an executor allows judgment to go against him by default, it is, on the same principle, an admission of assets by him to pay the debt sued for. Ee Higgins, 2 Qiff. 562. (c) See Dimsdale v. Dunning, 1 T. & C. C. 265 ; see p. 266 ; but in Savage ». Lane, 6 Hare, 32, V. -C. Wigram doubted whether an admission of having paid some legacies could alone be, in any case, conclusive, and he refused to act upon it in the case before him, on the ground of the pleadings not being addressed to the case. Such payment, too, may have been made by mistake, which destroys its effect. Postlethwaite v. Moun- sey, 6 Ha. 33 ; Clark v. Bates, 2 De G. & S. 203. t OF ADMISSION OF ASSETS. 63 But the foUowing extract from the judgment of Lord Cottenham in Barnard v. Pumfret (a), a case which combined several of the circumstances on which con- structive admissions of assets have been fastened on executors, will be found to specify most of the cases of constructive admission of assets which are now recognised law. " In the cases," said Lord Cottenham, other in- " in which it has been held that the representative has oonstruo" become personally liable for a legacy, the liability has *P^ a^mis- been put upon different grounds. In some, that what took place amounts to an admission of assets ; in others, that the representative has, for a sufficient consideration, undertaken personally to pay. In The Payment of Corporation of Clergymen's Sons v. Swainson (6), payment a legacy. of interest upon a legacy was held to be an. admission of assets (6) ; and in Campbell v. Lord Radnor (c), the widow, executrix of her husband, by her will attempt- Substitu- ing to provide other means for payment of a legacy eoutor of given by her husband's will, stating as a reason thatp^^J^yt,, his personal estate was out upon mortgage, this was satisfy the held to amount to an admission of assets to pay her husband's legacy. It does not distinctly appear in Sorsky v. Chaloner (d) what had been done by the executor ; but the Master of the Rolls seems to have held him personally liable, upon a declaration that Declaration the legacy was ready at twenty-one. In Sawkes v. ^^^ ,.^lf_ Saunders (e), the possession of assets was held to be a (a) 5 My. & C. 63. (6) 1 Vez. Sear. 75. So also in Whittle v. Heming, 2 Beav. 396. (c) 1 Bro. C. C. 271. (d) 2 Vez. Senr. 83. ' («) Cowp. 289. Admiesion must lie conclusive. 64 OP THE ADMINISTEATION OP ASSETS. Promise on Sufficient consideration to support a promise to pay oonsidera- ^ legacy by executors ; and in Childs v. Monins (a), Forbear- forbearance of a present demand, upon a promise by promLeto executors to pay it, with interest, was held to be a P»y- sufficient consideration to make the executors person- ally listble upon their contract. In this case [Barnara V. Pwmfref] all the circumstances occur which have been held necessary to make an executor personally liable ; and no attempt is made to support, by evi- dence, any case upon which the Court has thought it just to relieve executors from an incautious admis- sion or liability." Any act or writing, in short, which implies conclu- sively that the executor or administrator has, or, if he has proceeded regularly, ought to have (h), property in his hands sufficient to meet the demand, amounts to an admission of assets (c). But acts or words proceeding on a mistake, or which may have so pro- ceeded, and are therefore not conclusive, are not admissions, though they may be presumptive evidence thereof {d). clMsifi - '^^^ cases, indeed, of constructive admission may be tionof referred generally, according to Lord Cottenham's construe- . . . , , tive admis- words above cited, to two prmcipal classes, viz. : l!°Admis- ls*» Admission implied from the acts and dealings of (o) 2 Br. & B. 460, (6) Rogers v. Soutten, 2 Keen, 598. (c) See the cases already cited, in the notes to the preceding page, t (d) Thus payment of probate duty on a particular amount is presumptive eyidence of an admission of that amount of assets, but is not a conclusive Admission. Lasenby v. B.awson, 4 D. M. & Q:, 556 ; Hutton v, Kossiter, 7 D. M. & Q. 9, and see cases cited in notes (&) and (c) ^o p. 62, supra. OF ADJUSSION OF ASSETS. G5 the executor or administrator, of which his lordship sions im- mentions some instances, and others have been stated acts_ ^°^ in the text (a) ; and 2nd, Admissions implied from 2. Admis- verhal promises or agreements to pay, supported by pi;"^ f™,^ an adequate consideration. And in addition to the '^'°^'^- cases of Sawkes v. Saunders and Childs t. Monins, referred to in the judgment as belonging to the latter class, the case of Solland v. Clark (6) may also be men- tioned, in which a written memorandutn acknowledging the legacy as a debt was held a sufficient admission of assets. (a) See also Severs v. S., 1 S. &G. 400, in whioli an admission that a particular property on which a legacy was charged was sufficient, was held not to amount to a general admission of assets, creating a personal liability to pay. (5) 2 T. & C. C. 319. 66 OF THE ADMINISTEATION OF ASSETS. CHAPTER II. OP ASSETS. Arrange- HAVING briefly described the act or decree of the Chapter. ^ Court which constitutes the administration ; having stated also who are the parties entitled, generally speaking, to obtain it ; and having shown, finally, by what course of procedure it is to be sought for and enforced; I come next to the subject matter of the administration — the estate or assets to be adminis- tered. And on this branch of the subject I have to inquire, in the first place, of what these assets con- sist, and how they are ascertained ; and then to notice the steps by which they are secured for the purposes of the administration. The following appear to be the steps by which the investigation may be most conveniently pursued. I propose to consider, that is to say, — Firstly, "What is the meaning and effect of the term assets, and what it includes : Secondly, How the assets are reached and secured for the purposes of the administration, and herein of the distinction of assets into legal and equitable : and. Thirdly, To what extent the rules obtaining with respect to personal assets, apply to assets real. the assets to be administered. 67 Section 1. WTiat are Assets. The word " assets," as it has been observed by Sir Meaning of WilUam Blackstone and other writers (a), expresses in "assets!" some degree by its etymology the law which governs its subject ; for the word is said to be derived from the French assez, meaning, as.it is suggested, a sufficiency " in the hands of the executor to malse him chargeable to a creditor or legatee ; " the well-known rule of law being, that it is only where there is such a sufficiency, and, so far as that sufficiency extends, that there is either at law or in equity a liability to pay on the part of the executor (6). It is this principle of law on which is based, on the one hand, the whole issue of the ordinary action at law against an executor or administrator by a creditor of the testator or intestate ; ajid in which is also involved, on the other, the doc- trine of the admission of assets — a doctrine which has been already stated and explained (c), but of which it may not be out of place here to remark, having regard to the important place which it fills in the law of the administration of assets, how stringent an operation is attributed by it to the admission to which it relates ; for, according to the recognised doctrine of the Courts, such an admission does nothing less than wholly con- stitute the assets, making that assets which was not, or at least need not have been, assets before ; and as regards (a) 2 Bl. Com. 510 ; and see Wms. Exors. 1495. (5) 1 Saunders, 219, b ; Wms. Exors. 1768. (c) See the last section of the preceding chapter. p 2 68 OF THE ADMINISTRATION OP ASSETS. the executor or administrator, converting his ordinary liability to account into a direct personal liability to pay the demand for which he admits he has sufficient. Assets are Supposing, however, that there is no such admission, either, ^j^g question arises, as I have said, what property it is or real. which is to be charged ds assets in the hands of the executor or administrator to be administered by him ; such assets beiag divisible, according to the nature of the property, into, Ist, personal, and, Sndly, real assets. For though every species of property, it is to be observed, is now at last made assets for payment of the deceased owner's debts (a), it is still most necessary to distinguish between the personal and the real assets, the liabilities of these two classes of assets and the order of their application being still widely diverse. I shall proceed therefore, in the first instance, on the supposition that exclusively personal assets are spoken of, and state afterwards, separately, the rules which govern the real. And for the purposes of this division between personal and real assets, the word personalty, it is to be noted, includes terms for years, or chattels real ; while by the term realty, estates inheritable only are meant, or those which pass to the heir; in which division, however, as would be anticipated, copyholds as well as freeholds are included {b). For the distinction is between what goes to the executor or personal representative, and what goes (in the absence of devise) to the heir or real representative. (a) See Chapter III. s. 3 ; and also 2 Jannan, Wills, 584, 3rd ed. (6) The statute 3 & 4 Will. IV. c. 104, making real estate assets for payment of simple contract debts, includes copyholds as well as freeholds. ASSETS PEESONAL, 6& Personal assets, tHen, as distinct from real, may i. Personal be defined to be those assets or property of the*^^'^' deceased, which pass to his executor or administrator, mrtute officii, and not to his heir or devisee ; or if they do pass under a will, do so only subject to the exe- cutor's title, and by virtue of his assent. The general rule is (I cite Mr- Justice Williams) {a), " that all goods and chattels, real anj(i personal, go to the executor or administrator. By the laws of this realm, says Swinburne, as the heir hath not to deal with the goods and chattels of the deceased, no more hath the executor to do with the land^, tenements, and heredita- ments." All the property of the deceased, in short, except only his lands and property inheritable (copy- hold as well as freehold), is, or by getting in the same may be made, assets for the purpose of the adminis- tration which is now under consideration, and comes within its scope. Now this general rule, which is broad and intelligible enough, would seem to admit of easy application ; yet there are several cases in which doubts have arisen as to its operation and extent. Chattels real, indeed, as I have already observed. Chattels are, and always have been, unquestioned assets in the hands of the executor or administrator ; and this by virtue of the common law, which holds these interests in land to be no more than mere chattels. A case, however, more doubtful in principle occurs Leases for in thft instance of freehold leases, or leases for Eves, (a) Wms. Bxors. 576, Bth ed., referring to Touchstone, 474; Com. Dig., Biens C, Co. Litt. 388 a ; Swinburne, pt. 6, s. 3, pi. 5, '?0 OF THE ADMINISTRATION OP ASSETS. otherwise called estates pur autre vie, and which in the original grant are sometimes limited to the heir, and sometimes to the executor or administrator, or have no express limitation at aU. In the case of an express limitation, indeed, to the heir, the heir, as special occupant, always took the estate by descent as real assets, and no difficulty occurred (a). But where the limitation was to the executor, it was doubted whether the executor could take, the estate being freehold; and where there was no limitation at all, the doctrine of general occupancy applied, and the estate was thus lost to the creditors {b). Under these circumstances the legislature interposed, and by the Statute of Frauds (39 Car. 2, c. 3, s. 12), it was enactedj after first pro- viding that an estate pur autre vie should be devisable by will (which was not then the case), that " if no such devise were made, the same should be chargeable in. the hands of the heir, if it came to him hy reason of a special occupancy, as assets by descent, as in the case of lands in fee simple. And" (the statute proceeds) " in case there be no special occupant, it shall go to the executor or administrator of the party who had the estate thereof hy virtue of the grant, and shall he assets in their hands. Thus the estate was in effect made assets in every case, — real, if the heir was named in the limita- tion, but otherwise personal. And in a case where the limitation was to the " heirs, executors, and administrators," (a) Wms. Exors. 602, citing Stead v. Piatt, 18 B. 50 ; and see Bey- nolds V. Wright, 25 B. 100 ; S. C. on appeal, 9 W. K. 211, and authorities there cited. (b) Wms. Uxors. 603. ASSETS PEESONAL. 71 it was held that the heir took (a). A decision, how- ever, having heen made (J), that, notwithstanding the above express enactment, — making the estate assets in the hands of the executor where no special occupant was, — the residue or surplus, after payment of debts, was not distributable among the next of kin ; a further enactment (c) provided that, in the case just mentioned of no special occupant, the surplus estate, after payment of debts, should go "and be distributed in the same manner as the personal estate of the testator or intestate." Both these enactments have now been repealed and re-enacted, totidum verbis, by the 6th section of the "Wills Act, 1 Vict. c. 26, — except that the provision is extended to copyholds, which had been decided not to be within the statute of Car. 2, and also to incorporeal hereditaments; a doubt having been raised, though it seems groundlessly, whether a rent could be the sub- ject of a special occupancy, and so be within the statute {d). Thus it appears, that in all cases an estate ptir autre vie is now assets administrable ; and if limited to the heir as special occupant, is real assets, but if not, then personal (e). (a) Atkinson v. Baker, i T. E. 229. (6) Oldham b. Pickering, 2 Salkeld, 464. (c) 14 Geo. II. c. 20, s. 9. (d) Bearpark v. Hutchinson, 7 Bing. 178. (e) A curions qnestion on this law recently occurred in the case of Eey nolds V. Wright, 25 B. 100, affirmed 9 W. K. 211, in which there was a limitation \o the heir, tut the limitation failed by reason of the ancestor being a bastard, so that there was in effect " no special occupant," though the precise case probably pointed to by the statute, of the special occupancy failing by reason of there being no limitation to the heir, did not present itself. But it was held, nerertheless, that the statute applied, and that 72 OF THE ADMINISTEATION OF ASSETS. Land Another singular illustration of the technical nature abroad. ^ ^-^^ distinction between assets personal and assets real, occurs in the case of landed estates in a foreign country, which, even though it were an inheritance, would seem to have been always, as it is expressed in the old books, " looked upon as a chattel to pay debts, and a testamentary thing " (a). And afterwards by sta- tute (J), plantations in America and the West Indies, and by a stiU subsequent statute (c), real estates in the East Indies (except where the owners are " Mahometans or Gentoos ")> ^.re made assets in the hands of the executor or administrator for payment of debts, whether by specialty or simple contract, in the ordinary course of administration. And it was established in I>owdale's> Case {d), in James the First's time, that property of the testator generally in foreign countries, wherever it may be, if it can be, and is, reached by the executor* is assets in his hands. AocretioDs. Any accretions, again (using ihe word in the widest sense), to the original assets, arising after the decease, are deemed to be assets also. Thus a subsequently renewed lease (e), a subsequently redeemed pledge (/), the estate was personal assets of the deceased owner in the hands of the administrator (the Crown havijij ta)ien out administration), and did not lapse, as was contended, to the trustee of the legal estate, pro defe. Prendergast, 28 B. 480 ; Hollingswortli v. Shakeshaft, 14 B. 492. The general law on the subject of the retention of balances by an executor or administrator forming a ground to charge him with interest, will be found fully stated by Mr. Justice Williams, Exors. 1670, 1671. (d) By Lord Alvanley in Hovey v. Blakeman, 4 Tesey, 607 (1799) ; by Lord Eldon in Shipbrook v. Hinohinbrook, 11 Vesey, 254 (1805) ; by Lord 83 OF THE ADMINISTEATION OP ASSETS. unless so far as such receipt may have been by the act of the first-mentioned executor, or brought about by his instrumentality (a). The first branch of this rule, it must be observed, expresses the liability recognised in the ordinary ad- ministration decree, which simply directs an account of the personal estate come to the hands of the several executors respectvoely (b) ; on which direction an executor cannot be fixed constructively with the liability men- tioned in the latter branch of the rule. But if a wilful default decree is made, or a decree otherwise especially adapted to charge an executor, who stands by and knows that his co-executor is mis-applying, or even only omitting properly to get in, the assets, and never- theless omits to interfere, — on this decree the executor, not receiving the assets himself, but permitting others to do so, is nevertheless liable, according to the latter branch of the rule (c). Of aeonring On the assets, however, being fixed and ascertained, in Court, either in the hands of the executor or administrator — or outstanding in the hands of others, as the case may be — the next step to be taken in the administra- Cottenham in Stiles v. Guy, 1 Mac. & G. 429 ; by Sir J, Eomilly, M. E., in Dix V. Burford, 19 Bear. 412 ; Wms. Exors. 1649. (o) By lord Eldon in Langford v. Gascoigne, 11 Vesey, 335 ; StUea v. Guy, 1 Mac. & G. 422 ; Clough v. Bond, 3 My. & Cr. 496 ; Cowell v. Gatcombe, 27 B. 569. • (6) Stiles V. Guy, 1 Mao. & G. 422 ; and note by reporters, ib., p. 433. (c) Booth ». Booth, 1 Beav, 126 ; Leicester v. Wright, 4 B. 427 ; Lang- ford ». Gascoigne, 11 Vesey, 333 ; Shipbrook v. Hinohinbrook, 11 Vesey, 252 ; 16 Vea. 477 ; Underwood v. Stevens, 1 Mer. 712 ; Clough v. Bond, 3 My. & Cr. 490; Stiles v. Guy, 1 Mac. & G. 422 ; Terrel v. Mathews, ih. |3S, n. OF SECURING THE ASSETS IN COUET. 83 tion is to get them into Court, if consisting of money realised; and if not, to realise them, and then get them into Court, for the purposes of the adminis- tration. This may be done in the regular course of the By motion suit, either by motion before decree, upon admissions answer ■ in the executor's or administrator's answer, or bv the °'^^3[de- •' cree in the decree in the cause, proceeding upon the evidence, cause. or upon the result of the accounts, as certified by the Chief Clerk. But with respect to the proceeding by motion before decree : it is to be observed that this course is open to the plaintiff only where the executor or administrator by his answer admits that he has in his hands or power certain monies or balances forming part of his testator's or intestate's estate, and which must consequently be subject to any outstanding demands of the creditors and other claimants on the estate. And the order on this motion, directing payment into Court of the balances thus admitted, seems to proceed on the principle, not of an admission of assets {a), but simply of an admitted liability to account to the extent of the balances in question ; for the admission ia the executor's or administrator's answer, on which this order is made, need be such as to establish two points only : viz., 1st, a primd facie title in the plaintiff to require the account (J) ; and 2nd, that there is a definite sum of money or stock, (o) See ante. Chap. I. s. 4, p. 60. (6) McHardy v. Hitchcock, 11 Beav. 73 ; Wliitmore v. Turquand, 1 Jo. & H. 296. G 2 84 OF THE ADMINISTEATION OF ASSETS. clear of set-off or retainer (a), actually or construct- iTely [b) in the hands of the executor or administrator defendant, which forms part of the testator's or intes- tate's estate (c). Formerly, the practice was less stringent in this matter than it now is ; and the order to secure the fund is of course on the above two points being shown by the answer (d). Section 3. Of Assets Meal. Origin and ^^j having now disposed of the subject of assets the law. personal, it remains to notice the law which defines the assets real, where such assets exist, and the mode of securing and getting them in. By the Common Law, the heritable lands of a de- ceased debtor, whether freehold or copyhold, were not assets in the hands of his executor or administrator, as his personal estate was, to satisfy his debts or general pecuniary legacies. The only Conmion Law liability of this kind was, -feat the freehold lands of the debtor, so far as they were not devised, were liable in the hands of the heir, as what is called assets by descent, to the ancestor's debts by specialty — i.e., on bond or covenant, where he botmd his heirs as well as himself (e). To the simple contract debts, however, (a) Middleton v. Poole, 2 Coll. 246 ; Soy «. Gibbon, 4 Ha. 65. (i) White ». Barton, 18 B. 192 ; Wyatt v. iaarcatt, 3 Beav. 498. (c) Lord Oottenham in Eiohaidson v. Bank of England, 4 My. & Cr. 174-5 ; and see farther cases, Wms. Exors. 1853-5. • (d) Wms. Exors. 1853-4 ; and see WHtmore v. Turquand, uU supra. (e) 2 Bl. Com. 244 ; 2 Jarm. Wills, 552, 3rd ed. ; Wms. Exors. 1526. ASSETS EEAIi. 85 the land was in no circumstances liable; and devised lands escaped altogether. Upon this the statute 3 Will. & Mary, c. 14, called the Statute of Fraudulent Devises, afterwards repealed and re-enacted with addi- tional provisions by 11 Geo. IV. & 1 WiU. IV., c. 47, made lands devised liable in the hands of the devisee to those specialty creditors whose demands were recover- able in, according to the earlier statute, an action of debt (a), and according to the later one, an action of debt or an action of covenant (a). And by the 9th sec- tion, the last-mentioned Act proceeded to enact, that in the case of a trader within the Bankruptcy Law, but in his case only, any lands which were not charged by the will with the payment of his debts, and which would be assets for specialty debts where the heirs are bound, should be assets in eqjiity for the payment of the simple contract debts of the deceased debtor. And in this state the law stood until the 3 & 4 Will. IV. c. 104, Sir J. Eomilly's Act, was passed, which made aU real estate, of any person whomsoever, and whether freehold or^ copyhold, if not chwrged hy will with the payment of such person's debts, assets to be administered in a Court of Equity, for the pay- ment of such debts, as well debts due on simple con- tract as on specialty ; provided that, in administration under the Act, all creditors by specialty, in which the heirs are bound, should be paid in fuU, before any creditors by simple contract or specialty, in which they are* not bound, were paid any part. (a) Wilsoti ■». Knnbley, 7 East, 228 ; and see the argument in Hamer's Devisees' Case, 3 De 6. & S. 286. 86 OF THE ADMINISTEATION OF ASSETS. The effect of each of these statutes has been con- sidered to be, not to charge the real estate specifically with the debts in each instance provided for, but to make the estate assets, whilst in the hands of the heir or devisee, for payment of the debts specified ; the consequence of which is, that a bond fide, alienation of the estate, whether for marriage or pecuniary con- sideration, by the heir or devisee, before the creditor proceeds for his debt, is good agaiQst_the creditor, ' and cannot be afterwards impeached by him (a). The effect of the statute of "Will. IV., in making real estate realised under it distributable as equitable assets, has already been considered (J) ; that under the old law, real estate applicable as assets by descent in the hands of the heir, or as assets in the hands of the devisee, is legal assets, is sufficiently obvious (c). The Statute of Frauds, it may be here observed in passing, made a trust of lands (which before could have been reached by a creditor only in equity, and must have been applied as equitable assets) legal assets in the hands of the heir, executor, or administrator (d). And the effect of the statute of Will. IV., taken (a) On tte old statntes, Spackman ». Timbrell, 8 Sim. 253 : Richardson ■V. Horton, 7 Bear. 112. On the statute of 3 & 4 WiU. IV. Kinderley v. Jervis, 22 B. 1 ; Dilkes v. Broadmead, 2 Griff. 113 ; and see Noble «. Brett, 24 B. 499. Bnt a judgment against the heir for his own debt, gives no priority against the creditors of the ancestor. Einderley v. Jervis, ubi swpra. So also an invalid covenant to settle. Pimm v. Insall, 1 M. & G. 458. (i) See amte, p. 78, and n. (d). (c) 2 Jarm. Wills, 586, 3rd ed. (d) 29 Car. II., c. 3, ss. 10, 12 ; Plunket v. Ponson, 2 Atk. 293 ; 2 Jarm. Wills, 586. ASSETS EEAL. 87 ■with those which have preceded it, is, that property of every description is now assets for payment of the debts of the deceased owner, as well those on simple contract as those on specialty (a). The statute expressly includes copyholds as well as freeholds : and lands over which the debtor has a general power of appoint- ment which has been exercised, have been held to be included in it (6). It is to be observed, however, that those statutes Real assets have left stUl untouched the old and well-established dariiy Ua- rule (c), that as between the real and personal estates, ^^^' the personal estate in the hands of the executor or administrator forms the primary fund for the debts, of every description, of the testator or intestate (d). Nor can the real estate be applied for this purpose, even pari passu with the personal estate, unless the testator's wiU clearly express an intention not only that the real estate should be subject, but that it should be subject either in exoneration ov pari passu with the personal estate, as the case may be. It is also to be observed that independently of such real assets as are created by law in the manner just mentioned, a testator may, either by express charge in his will or by other act in his lifetime — as by mort- gage, legal or equitable, or by judgment (which under the Act of 1 & 2 Vict, c. 110, has the effect of an equi- (a) 2 Jarm. Wifls, 584, 3rd ed. (6) Fleming v. Buchanan, 3 D. M. & G. 276 ; Waiiams -o. lomaa, 16 B. 1; 2 Jarm. WUls, 587, 3rd ed. (c) See infra, Chap. III. b. 3. (d) 2 Jarman, Wais, 588, 3rd ed.; Wms. Bxors. 1531, . 88 or THE ADMINISTRATION OF ASSETS. table charge) or by statute or recognisance — constitute all or any part of his landed estate assets for the par- ticular debt or debts in question. The construction and effect of particular testamentary charges, however, fall without the scope and object of this work. But the general effect of these and the other above-mentioned acts of the debtor, in giving priority to his creditors, will be considered in a subsequent chapter. Of getting It remains only to notice here, how the real assets sete'rear *^^^ constituted are got in and applied in the adminis- tration we are considering. In Solme v. Sicmley (a). Lord Eldon laid it down " that the old habit of the Court was first to administer the personal estate, and in case of a defidency, to raise the residue from the real estate ; but that the habit of the Court then was, that if the Master foresaw that the personal estate woidd be deficient, to permit a sale of real estate meanwhile." " Afterwards," continues Seton (6), "it became usual only to direct an inquiry as to the real estate and the incumbrances thereon. But now it is almost of course to direct a sale in the first instance in case the personal estate is not sufficient"(c). If there are supposed to be incumbrances, an inquiry is at the same time usually directed as to what incum- brances, if any, affect the estate, and what are their priorities : and if a sale is directed, the sale is ordered to be free from the incumbrances of such as shaU con- (a) 8 Vesey, 2; 1 Seton, 236, 3rd ed.; see the form, p. 231. (5) 1. 236, 3rd ed. (c) A direction for sale is added in Chambers ; see form, p. 233, Seton, vol. i, 3rd ed. ASSETS EEAL. 89 sent to the sale, and subject to the incumbrance of such as shall not consent. And the proceeds of the sale are by the same order directed to be applied, first, in payment of what is due to any concurring incumbrancers, and the money in the meantime (or the residue) is ordered into Court (a). (a) See the fonn, 1 Seton, p. 231, and notes p. 237 ; and the mortgagee, if a party to the suit will be compelled to elect at once whether he will con- car or not. Wickeuden v. Raysen, 6 D. M. & Gr. 210 ; but see as to the mortgagee's rights, Langton v. Langton, 1 Jur. N. S. 1078, and Seton, wli supra. OF THE ADMINISTEATION OF ASSETS. CHAPTER III. THE APPLICATION AND DISTEBBUTION OF THE ASSETS. Order of HAVING now Considered, with respect to the admi- satisfaction . . . , . . ••,!<■•. of claims, lustration of assets, the act of administration itseli, its character and principles, the nature and constitution of the assets administered, and the course pursued for reaching and securing them, it remains now only to inquire what is the course of apphcation of those assets, under the orders of the Court, on the hasis of the rights already established in the administration. Now the purposes to which this application is directed are, after satisfaction of the costs of the administration, the funeral and testamentary expenses of the deceased, his debts and legacies ; — and after these are paid, the distribution of what remains among the residuary legatees or next of kin, and the devisee or heir,- as the case may be. But among these various purposes — or, in other words, as between the several claims to which the assets are thus liable — the law has established a certain order or priority in their right to satisfaction. Order of Further, irrespectively of this priority or order of of assets, ti*!^ as between each other, subsisting among the several claimants on the assets, the law, independently of the directions which (if any) may be contained in the APPLICATION AND DISTEIBUTION OF ASSETS. 9X deceased debtor's will, has also established, as between the different classes or items of the assets themselves, a certain different order or priority with respect to the application of those different kinds of assets to satisfy the claims in question. Both these classes of priorities are recognised and MarshaU- observed (subject to the qualifications which wiU be™^' mentioned) in the administration of the assets by the Court of Equity ; and in order to reconcile (as far as may be) the rights of all parties under these two different and sometimes conflicting orders of priority, the Court of administration applies a principle of com- pensation, known as marshalling the assets, of which the limits and mode of application are matters of settied and definite law. In the present chapter, therefore, the following subjects will occur for consideration, viz. : — 1. The costs of the administration. l- Costs. 2. The priority (of title to satisfaction) established by 2. Priori- ties, be- law as between the other claims on the assets, viz., the tween funeral expenses, debts, and legacies. ° *""^' 3. The priority (of application) established by law, 3- Priori- , . 1 /. 11 ^'ifis, be- as between the various classes oi assets themselves, tween as- and herein of marshalling the assets. pliedt^ Section 1. Of the Costs of the Administration. I will speak first, then, of the costs, as having the first title to payment {a). (a) See infra, p. 92, n. (i). 92 OF THE ADMINISTEATION OF ASSETS. And the following broad general rules wiU, I think, be found to comprise the leading points established with respect to the costs of an administration by the Court —as instituted either by a creditor or legatee, or again by the executor, administrator, or trustee of the estate. 1. The i_ The first of these general rules is that the costs costs, the firstcliarge. of Suit of aU parties (including any charges or expenses not in the suit, of the executor, administrator, or trustee) are a charge, and that, too, the first charge on the estate or fund administered. " They are payable," said Lord Cottenham, " before any distribution takes place" {a). Or, as held ia Ford v. Chesterfield {b), by Sir John Eomilly, "prior to the administration of the fund." 2. Except II. But this rule is subjectto there being [or, in other SO Tfl>r ss there may words, the charge will not be resorted to, if there is, or MnaUia- ^° ^^ ^^ there is] a personal liability to pay or bear Miity to costs in any of the parties to the suit. pay them. ./ x ^ ^ And as to this, a second rule may be borne m mmd, to the effect that if the suit is occasioned or instituted needlessly and capriciously, or, still more, if it be owing to any fraud, misconduct, or breach of trust, the party offending will have personally to pay the costs of the suit, or to bear his own costs, as the case may require, (a) Shuttleworth ii. Howarth, C. & P. 232. (5) 21 Beav. 426 ; and to the same effect is Jacison v. Woolley, 12 S. 15 ; and Sir J. Leach, V.-C, in Loomes «. Stotherd, 1 Sim. & S. 461, said that the costs of the administration are a first charge on the estate, whether it be administered in or out of Court, But it would seem that the executor or administrator is entitled to be allowed the reasonable funeral expenses, in priority to the charges for administration. See infra. Chap. III., B. 2, p. 100, n. (c). And as to the priority of the solicitor's lien for rdlovering the fund administered, see Lloyd v, Maeon, 4 Ha. 132. THE COSTS OF THE ADMINISTEATION. 93 notwithstanding tlie ordinary liability thereto of the funds or assets under administration. Thus a creditor instituting an admiuistration suit in the face of notice that there are no assets, has had to pay the costs of the suit (a) ; .and where the plaintiff, with no such notice, turned out to be no creditor but a debtor to the estate, he was deprived of his costs {b). So where a party claiming as legatee institutes an administration suit, and he turns out to be not entitled, and the bill is dismissed, " it may be taken as a general rule that the Court gives no costs to plaintiff, and has no jurisdiction to give them " (c). But if the suit is after all necessary or proper, and administration is decreed, then, though the plaintiff is not entitled to any interest in the estate, he will still be allowed his costs out of it (d). But if the suit is needless, then, even -fibough administration has been decreed, the plaintiff (legatee) has been deprived of his costs. Again, where the executor or trustee institutes or occasions the suit, the rule is [as it has been stated in a former chapter] (e) that if there has been caprice or misconduct on his part occasioning or leading to the suit, there the executor or trustee thus offending pays or bears the costs as the case may require. As to caprice, a suit is held to be capriciously insti- tuted or occasioned, within the above rule, where there is not a hona fide doubt either of fact or law requiring {a) King V. Bryant, 4 Beav. 461. (6) Graves ». Wright, 1 0. & L. 267. (c) Martin ». Blagrave, 25 E. 135. {d) S. C. 26 Bear. 136 ; and see authorities eited. (e) See pp. 40, 41. 94 OF THE ADMINISTBATION OF ASSETS. the solution of the Court, but it is held otherwise where there is such a doubt (a). Thus far, then, of the liability to costs as between the estate on the one hand and the parties personally on the other. Assuming, however, that we have a case in which personal liability there is none, and that the estate bears the costs, the question next is, as between the different component parts of the estate, which is primarily to bear it. 3. Costs III- Here the rule is that the general residuary per-' of residu" sonal estate is the primary fund for the costs (S). As between the estate and the parties taking the costs, those costs are, as I have said, a. first charge, to which everything else gives way ; so that if there is no resi- due, or even nothing but property specifically be- queathed, such specifically given property, of whatever description, must bear the costs of the suit, contri» buting rateably to do so (c). But as between the legatees themselves, residuary and other, if there be a residue, that is first appro- priated, and that though the suit may have been made necessary by an ambiguity confined to one particular legacy {d) i. Priori- IV. But, again, it often happens that the assets are S°scT ^ insufficient to pay so much as the costs of all parties, (a) In addition to the authorities establishing this, referred to ahore, pp. 40, 41 ; may now be cited the 4th and last ed. of Lewin on Trusts, p. 259, and cases in n, (b), and 666, cases in n. (c) and ((2), (5) Howse D. Chapman, 4 Vesey, 549, (c) Cookson V. Bingham, 17 B. 266, {d) Wilson V. Squire, 13 Sim. 212. THE COSTS OF THE ADMINISTEATION. 95 and then it becomes necessary to determine the priority of the costs inter se. Here, in the absence of special circumstances, the rule is that the executor's or administrator's costs, as between solicitor and client, are to be paid before any other («). Next come the plaintiff's costs; and now by 40th Consolidated Order, Eule 24, creditors who come in and establish their debts in Chanoory under the decree, may also add {heir costs to their claims. Lastly come the costs of the beneficiaries, legatees, and next of kin. Thus we have four general rules as to the costs of this administration, which though they do not, perhaps, go far enough to decide all the innumerable distinctions and ramifications into which this most litigated subject has been pursued, will yet, I think, be found adequate to solve the most usual cases which arise in practice, and to furnish in every case the principles on which the decision must ultimately be made ; and they are — 1. That the costs are a first charge on the estate. 2. That this is subject to the personal liability of any party to bear or pay costs, arising from miscon- duct or misconception. 3. That as between the assets, the residuary personal estate is the fund to bear the costs. 4. That as between the parties inter se, the exe- cutor's costs come first, then the plaintiff's, then the beneficiaries' generally. Finally, an illustration of the application of these (a) Wms. Ezors. 18^6, n. (i). 96 OP THE ADMINISTEATION OF ASSETS. rules may be adduced in the case of Tipping v. Power{a).^ before Sir J. Wigram, V.-C.^ which was a suit by a simple contract creditor, whose debts were secured by deposit of deeds, against the executors and devisees of the debtor. The mortgaged premises were sold and were insufficient to pay the plaintiff's debt, and the general assets were insufficient to pay his debt and the costs of suit. And it was held — that the plaintiff, as equitable mortgagee, was entitled to the proceeds of the sale of the mortgaged premises, and that, the executors were entitled to retain out of the general assets in fuU, the debts owing to them- selves ; and that the residue should be applied — 1, in payment of the costs of the executors, as between soli- citor and client; 2, of the costs of the plaintiff; 3, the costs of the defendants, the devisees ; 4, of the debts to the plaintiff and other creditors. Thus placing i (subject, of course, to the security) the costs of all par- ties in the order I have mentioned, before any debts ; — thou^ even prior to the plaintiff's costs, itwiU be seen, comes the executor's right of retainer of his debt (a). Section 2. The Order and Priorities of the other claims on the Estate. The costs of the administration being, then, the first charge on the assets administered, the claims still remaining to be considered are, the funeral expenses, debts, and legacies (c). As between these several charges there is, as has j nisances. ments. ■" A recognisance is an obligation of record, which a man enters into before some Court of record, or magistrate duly authorised, with conditions to do some particular act, as io appear at the assizes, to keep the peace, to pay a debt, or the like " (c). And it must be enrolled before it can rank as a record before a specialty debt{d). ".The statute merchant and statute staple," again, which with the recognisances in the nature of a statute staple, are the only securities occurring for conside- ration under this head, "are securities for money, the one entered into before the chief magistrate of some tradiDg town, pursuant to statute 13 Edw. I., de mereatoribus, and therefore called a statute mer- chant; the other pursuant to statute 17 Edw. III., c. 9, before the mayor of the staple, or grand mart for the principal commodities or manufactures of the (a) See Wms. Exore. 903-4. (by 1 & 2 Tict. c. 110, s. 13 ; and see Rnssell v. MoCuUooh, 1 K. & J. 313 ; 2 Jarm. Wills, 587, 3rd ed. (c) 2 Bl. Com. 341. (d) Bothomley v. Fairfax, 1 P. 'WmB. 334 ; Glyn v. Thorpe, 1 B. & Aid. 158. PRIOEITIES BETWEEN CREDITOES. 105 kingdom, formerly held by Act of Parliament in cer- tain trading towns, whence the security is called a statute staple. " There is also a similar security in the recogni- sance in the nature of a statute staple, acknowledged before either of the Chief Justices, or out of . term, their substitutes, the mayor of the staple at West- minster, or Recorder of London, whereby the benefit of this [originally] mercantile transaction- [the statute staple] is extended to all the king's subjects" (a). . The advantage of these securities was, besides the preference they gave, the speedy remedy by execution which accompanied' them. But they are now nearly, if not quite, obsolete. 4. " Debts due on special contracts, as for rent [for 4. Debts by which the lessor has often a better remedy in his own ^^^"^ ^' hands by distraining], or upon bonds, covenants, or the like, under seal " [b). Later authorities place this priority of debt for rent. Debt for not on the contract but on the tenure, and it is accord- ingly considered that the right fails unless the relation of landlord and tenant has been completed, and that • in England (c). With respect to the cases where there is a contract, Debt on as on a bond or certificate, such contract being under contract. seal, and therefore special, it is necessary that there should be an assent to pay, expressed or implied. A (a) 2 BI. Com. 160; 23 Hen. YIII. o. 6, amended by 8 Geo. I. c. 25. (5) 2 Bl. Com. 511. (e) Vincent v. Godson, 1 Sm. & G. 384 ; 4 D. M. & G. 546 ; Clough v. French, 2 CoU, 277. 106 OF THE ADMINISTRATION OP ASSETS. mere acknowledgment without such an assent is not j sufficient {a). On the same principle, a breach of trust / constitutes merely a simple contract debt, unless there ^ is something in the creation of the trust to raise a liability on covenant (J). So a call under the Joint Stock Winding-up Acts of 1848 — 49, is not a spe- cialty debt, though the shareholder have covenanted to pay the amount of his shares, for the -liability to the call rests not on the deed, but on the general law of partnership (c). But with respect to debts payable in futuro, contingently or absolutely, " if it is uncertain whether anything ever will become payable on the special security (by bond or covenant), it shall not stand in the way of the payment of simple contract debts, but where a sum certainly will become due, though on a future day, the special security is entitled to priority like any other obligation of its class " {d). 5. Debts on 5. "Lastly, debts on simple contracts, viz., notes un- traot. sealed, and verbal promises (e). " Among these simple contracts," says Sir W.Black- (a) Marryat o. M. 28 B. 225 ; Stone v. Van Heythnsen, Kay, 721 ; Kiohardson cj. Jeniins, 1 Dr. 477; Wynch v. Gh:ant, 2 Dr. 312; Incei). Elwes, 3 Dr. 25 ; Gifford «. Manley, Cases temp. Talbot, 109 ; and at law the decisions have been similar, viz., Courtney v. Tayler, 6 Man. & (J. 581 ; Saltoiin v. Houstoun, 1 Bingh. 423 ; Brice v. Currie, 1 Lev. 47. (6) Adoy ». Arnold, 2 D. M. Sc G. 432. (c) Kobinson's Exors. Case, 6 D. M. & G. 372 ; but see now eeetion 13 of 21 Viet. c. 14, J. S. C. Act, 1857. (d) Wms. Exors. p. 919, u. (A). . The passage above cited has been ap- proved by L. J. K. Bruce, in Kobinson's Ex. Case, 6 D. M. & G. 578, as inoontrovertibly law. The latter clause of the sentence is supported by Atkinson v. Gray, 1 Sm. & G. 677 ; and see further cases on the point in Wms. Exora. 920-2. (e) 2 Bl. Com. 511. PEIOEITIES BETWEEN CREDITOES. 107 stone, " servants' wages are by some, with reason, pre- ferred to any othfer, and so stood the ancient law " (a). It seems, however, at all events clear, that debts to the Crown take the first priority, whether debts for wages be entitled or not to the second place (6). Further, after all debts for value are paid, the voluntary Voluntary bonds and covenants of the testator or intestate are enti- tled to satisfaction in priority to the gifts by his will (c). Finally, " among debts of equal degree the executor Eight of retainer, or administrator is allowed to pay himself first, by retaining in his own hands so much as his debt amounts to. But an executor de son tort is not allowed to retain " {d). And this right oi retainer, which extends moreover both to debts owing to the executor as a trustee (e), and to debts owing to another, as a trustee for the execu- tor (e), is recognised by the Courts of Equity in the accounts and administration (/). On the other hand, if the executor is indebted to the estate, the debt is assets in his hands ; and though it may be barred by the Statute of Limitations at the date of his proving the will, but not at the testator's decease, the probate, which relates back to the testator's death, wiU revive the debt ig). Having thus stated the order of legal priority estab- (a) 2 BL Com. 511. (6) Wma. Exora. 923, citing Bao. Ab. 80, tit. Exors, (c) Lomas v. 'Wriglit, 2 My. & K. 769 ; Dening v. Ware, 22 B. 184 ; Wataon v. Parker, 6 B. 283. (d) 2 Bl. Com. 611. (e) Fox V. Garrett, 28 Beav. 17; Loomes v. Stotherd, 1 S. & S. 461; and caaea in Wma. Exora, 938-9, (f) Fox V. Gtarrett, uU mp. andcasea cited there in argument, particularly Knnn v. Barlow, IS. & S. 588, and Stahlaohmidt v. Lett, 1 Sm. & &. 415. (^) Ingle V, Eicharda, 28 B. 367. The statute it seems does not affect 108 OF THE ADMINISTEATION OF ASSETS. ■lished between the different classes of creditors, it is to be obserTed that the Court of administration recog- nises and enforces these priorities in the application of those legal assets which have been defined in a previous chapter (a), as those which the creditor could reach at law ; but that in the administration of that (usually a very small) part of the assets which could have been reached by the creditor only by a suit in equity, and which are commonly called equitable assets, the Court disregards the above priorities, and admi- nisters between all creditors not secured by mortgage or lien, rateably ani pari passu (6). Legacies. Legacies. The debts being paid, the next claim to be satisfied in the due course of the administration is that of the legatees and devisees, — first specific, then general, and last residuary. LiabUity An executor or administrator paying any legacy ^"^p^yijig before the debts are satisfied, and acting, not under legacies be- the protection of the Court, but on his own responsi- fore debts. . . ^ bility, is personally liable to the disappointed creditors, as already pointed out, whether he had notice of the debts or not (c). So, "if he pay one legacy, the pre- (the executor's rigbt of retainer, which is good, though the debt would be otherwise barred. Hill v. Walker, 4 K. & J. 166 ; Stahlsohaiidt «. Lett, 1 Sm. & G. 415. (a) Chap. II., s. 2, svpra, (6) Hunket v. Penson, 2 Atk. 294 ; Wms. Ekors. 1520. (c) Hawkins v. Day, 1 Amb. 160 ; Spode v. Smith, 3 Rubs. 511 ; KnatchbuU v. Feamhead, 3 My, & Cr. 122 ; HUl v. Gromme, 1 B. 540 ; Simmons v. Bolland, 3 Mer. 547 j Newcastle Bank v. Hymers, 22 B. 367. PEIOEITIES BETWEEN LEGATEES. 109 sumption is that he has enough to pay all, and the Court will oblige him, if solvent, to pay the rest " (a). The first of the recent Acts, however, to amend the Law of Property and to EeHeve Trustees (b) has now provided that where an executor or administrator shall have given the like notices as would have been given by the Court in a suit, for creditors and others to send in to the executor or administrator their claims against the estate, the executor or administrator may, at the expira- tion of the time limited by the notices, distribute the assets, having regard to the claims of which he has then notice, and shall not be liable for the assets distri- buted to any person of whose claim he had no notice. The best and only complete indemnity, however. Indemnity afforded by is still an administration under the Court ; the effect adminis- of which, it is now established, is completely to dis- cTurt^ '" charge and exonerate the executor or administrator, bringing all the facts before the Court, and acting under its directions ; and to throw the parties (if any) who may be disappointed of their rights^ on their remedy against the residuary or other legatees who may have received the funds (c). On this principle, it is now held unnecessary for the executor's protection to set apart an indemnity fund in the administration suit to meet the contingent liability in the testator's covenants, in a lease or otherwise (c), (o) By Sir J. Strange, II. R. Orr. v. Kaimes, 2 Ves. Sen. 194, but see ante, p. 62. (6) Lord St. Leonard's Act of 1859, 22 & 23 Vict. c. 35, ... 29. (c) Deani) Allen, 20B.1; Waneri;.Barrett,24B.413;Bennett«.Lytton, 2 J. & H. 156 ; Dodson v. Sammell, 9 W. E. 887 ; Smitt v. S. 1 Dr. & Sm. 384; Bunting ti. Marriott, 7 Jm-. N. S. 565; Ke Green, 2 D. F. &J. 121, gifts. 110 OP THE ADMINISTKATION OF ASSETS. in respect of property conveyed away to a purchaser ; and this, irrespectively of the 37th section of the Act just mentioned (a), which expressly exonerates the executor or administrator in the case put, and also of any question as to whether that section is or is not retrospective (6). If an estate, therefore, is regularly administered in Court, and any party is accidentally or erroneously shut out, his remedy is against the legatees who have received the estate, and whose rights are suhsequent to his own, to make them refund to the extent of his claim ; or if the rights are equal, then to refund pro tanto (c). Specific Immediately on the claims of the creditors being satis- fied, the specific gifts contained in the will are to be pro- vided for, in priority to any legacy given generally (rf)> and of course still more to a gift of residue (e). And (a) 22 & 23 ¥ict. c. 35, h. 27 ; it seems tliat this section is retro- spective. Dodson V. Sammell ; He Green ; uH supra. (b) See ante, p. 109, n. (c). (c) Gillespie v. Alexander, 3 Euss. 136 ; David v. Frovd, 1 My. & E. 200 ; and see Wms. Exors. 1307 ; Underwood v. Hatton, 5 B. 36 ; Kidgway v. Newstead, 2 Giff. 492. In Davies v. Nicholson, 2 D. & J. 693, the ease is distinguished when the administration is not in Court. (d) 2 Bl. Com. 512, 513. " In case of a deficiency of assets, all the ge- neral legacies must abate proportionably ; but a specific legacy (of a piece of plate, a horse, or the like), is not to abate at all, or allow anything by way of abatement, unless there is not sufficient without it." In Barton v. Cooke, 6 Vesey, 404, the rule may be seen applied in the administration in Court. (e) '• The whole personal estate not specifically bequeathed, must be exhausted before the [non-residuary] legatees can be obliged to contribute anything." " The principle is this, that the testator only intended for the residuary legatee that which (if anything) should remain after all the trusts of the will were exhausted." 1 Eoper's Legacies, 3rd ed. 355; and see Wms. Exors 1224, and cases in n, (y). PEIOBITIES BETWEEN LEGATEES. Ill for the purpose of preference, which is the point now under consideration, any legacy which designates the property upon or out of which the gift is to take effect, is specific, and appropriates the property designated hy it, to the exclusion of the claims of all other legatees. What is commonly called a demonstrative legacy, there- Demon- fore, is considered specific for the purposes of pre- legacies. ference (a). For the legacies given generally take effect only on the assets wliich remain unappropriated by the specific gifts ; and if there is a deficiency of such assets, these legacies have to abate rateably, while the specific gifts are satisfied in full (b). For the purpose of the preference now under con- Annviities. sideration, an annuity for life, or other defined period, jjayable out of the general personal estate, or, which is the same thing, given generally, is in effect a general legacy of the amount necessary to pay the annuity in full for the time specified (c) ; and it is accordingly the course of the Court, in the administration of assets, to set apart at once, if the assets suffice to pay all the general legacies and annuities, a sufficient part of the estate to meet, out of the interest (and, failing that, (a) "A legacy of quantity is ordinarily a general legacy " (as a gift of bo much money or stock); "but there are legacies of quantity in the nature of specific legacies, as of so much money, with reference to a, particular fund for payment. This kind of legacy is called a demonstrative legacy :" and " it will not he liable to abate with general legacies on a deficiency of assets.'' [In other words it is payable in full out of the fund demon- strated, in priority to general legacies.] Wms. Exors. 1043. (6) See the three last preceding notes. (c) Ward v. Gray, 26 B. 485, 491-2 ; Ee Browne, 27 B. 324. The general rule is well stated in Croly v. Weld, 3D, M. & G. 393 ; and see Heath v. Nugent, 29 Beav. 226. 112 OF THE ADMINISTEATION OF ASSETS. out of the corpus (a)), the growing payments of the annuity ; after satisfaction of which, what remains of the appropriated fund becomes distributable among any general legatees who may he still unsatisfied in fuU, and subject thereto, as residue (6). As to gifts of real estate, it needs hardly to be remarked, in passing, that no question can arise of the kind now under consideration ; for if' the debts be all paid, which is the present supposition, nothing can prejudice or affect the gift of realty, as between it and the other legacies, except an express charge or other direction in the wiU (c). Course of Payment of Legacies, Mode of "According to the ordinary practice in administering legacies in the assets of a deceased testator {d), the Court, in the. course of £j,g^ pjage," [and at the original hearing of the suit, tion. directs, as we have seen, an account to be taken of the legacies and annuities given by the testator's wUl, and (o) If the will manifests an intention to give the annuity out of the in- come of the estate, and so far only as such income will extend, this intention will of course prevail, and the corpus cannot he so applied : as in Wright t;. Callender, 2 D. M. & G. 652. Ee Baker, 6 H. of L. C. 616, reversing the decision below, 7 D. M. & G. 681. (i) See the forms of the usual orders, 1 Seton, 202-7, 3rd ed. If the assets are deficient to pay the legacies and annuities, the annuities should he valued, and the amount of the valuation abate proportionahly to the abatement of the other general legacies. Wroughton v. Colquhoun, 1 De G. & S. 357 ; Heath v. Nugent, 29 B. 226. (c) If there is a deficiency for debts, specific devisees and legatees contribute rateably. Tombs v. £och, 2 Coll. 490. (d) By Lord Lyndhurst, C, 1 R. & My. 731. By 42nd Consolidated Order, rule 11, unless otherwise ordered, interest is computed at 4 per cent, and from a year after testator'^ decease, if the will does not other- wise direct; and see cases, 1 Seton, 179, THE PAYMENT OF THE LEGACIES. 113 afterwards, as to any bequest on whicli any question of construction or other difficulty is raised, makes a declaration that the legacy is payable or not, or other- wise 'according to the circumstances; and upon this declaration, or, if none is needed, then upon the Chief Clerk's certificate in the cause finding the legacies due, the Court aqts, and no further assent is needed on the part of the executor (a). But "for the actual payment of the legacies thus established, the Court] "waits until all the claims on the estate are settled, and the clear fund is ascertained; and then the particular legatees are paid. They are paid their principal, and, if entitled to interest, they are paid interest at the rate of Al. per cent, up to that time " (6). If, however, the legacy is not presently payable, but Appropria- only infuturo, there the course of the Court is to ap- legacieMJid propriate at once, on the application of the legatee, a ''™"'*'^°- sufficient sum to answer the legacy when it shall become due (c), unless the legacy be charged on real estate, which, it seems, is considered security suf- ficient («f). And the course of the Court in securing {a) The assent of the executor, where there is no administration in Court, is necessary to complete the title of the legatee to his legacy ; for until it is given, non constat that the executor has assets to satisfy the bequest, 1 Saund. 280, e. u. (5) ; Wms. Ezors. 1237. In an administration suit, the &rCt of the assent would only be material, as far as it amounted to an admission of assets quoad the legatee obtaining it ; for otherwise the title would at all events be ascertained by the account and declaration of the Court. As to what constitutes an executor's absent, a question not within the scope of this treatise, see Wms. Kxors. 1238 et seq. (b) See ante, p. 112, n. (c). (c) By Lord Hardwicke, in Phipps v. Annesley, 2 Atk. 58 ; Ferrard v. Prentice, Amb. 273. (d) Gauter v. Standewick, 2 Cox 15 Wms, Exors. 1262. 114 OF THE ADMINISTRATION OP ASSETS. annuities, which has been already noticed, is founded on the same principle. And where the legacy is only contingent, the same right exists (a). Residue, Whatever may remain of the estate after payment bntabie. of the funeral and testamentary expenses, costs of administration, debts, and legacies, passes as residue, either to the residuary donee under the will (if any), or, if none, then according to the nature of the estate, the realty to the heir of the deceased, and the per- sonalty to the next of kin, according to the Statutes of Distribution (b). The question what constitutes or not a good residuary gift, is foreign to the scope of these pages, and is to be determined by reference to the treatises on wills, and authorities there referred to. 1. Accord- If there be such a gift, it is the course of the adminis- ing to the . . . residuary tration, after provision made for all the prior claims,''- ^i]."" * ^^ direct the payment or distribution of the residuary^ personal estate, or conveyance of the residuary real estate, to the persons entitled thereto who may be sui Juris, and to retain and carry over the shares of personal estate of those who are not sui juris — as married women; lunatics, and infants — to separate accounts for their benefit, with liberty to apply ; and to deal in an analogous manner with their interests in real estate. But as the administration in these points (a) Governesses' Institution ». Ensbridger, 18 B. 467; Bartletti). Bart- lett, 4 Ha. 631 ; Ross v. Ross, 12 B. 89 ; 1 Seton, 156, 3rd ed.; but see Webber v. Webber, 1 S. & St. 311 ; and a distringas is sometimes thought sufficient protection. (6) 2 Bl. Com. 514-15. See note (5), p. 115, post. THE DISTEIBUTION OF THE EESIDUE. 115 is similar to that pursued in the administration of ordinary trust property among the parties ultimately becoming entitled thereto, it has been tiiought most convenient to reserve the particular statement of the law which governs this branch of the administration until the distribution of ordinary trust property is treated of (a). If there be no residuary gift of the personal estate, 2. If no the executor, if there be one, is a trustee of such f^'nlit^ estate for the next of kin of the deceased, according '''°' '"^^*"'- to the Statutes of Distribution (b), by virtue of the statute 1 Will. IV. c. 40 (c) ; and the administrator, if there be no executor appointed, is trustee thereof for the same next of kin, by virtue of the Statutes of Distribution themselves. So, if there be no gift of the residue of the real estate, it descends to the heir-at-law. If there be no next of kin, — ^which is the case if the 3. Title of testator or intestate is a bastard, — the undisposed of o/faikre"' personal estate passes to the Crown (d), except in the <'^^™''™d ; (a) See below, Book II. Chap. II. a. 4, p. 241. (i) 22 & 23 Car. II. c. 10 ; 29 Car. II. c. 3 ; 1 Jac. II. c. 17. (c) This statute dates only &om Sept. 1, 1830 ; as to deaths before that time the siitnte does not apply. The statute makes the executor a trustee, unless it shall appear by the will that he was intended to take the residue beneficially. No reported case seems to have arisen since the statute in which sach an intention has appeared and been given effect to. See Juler V. Juler, 29 B. 34 ; Love v. Gaze, 8 B. 472. Before the statute the rule was the reverse, and the executor took beneficially, unless a contrary in- tention appeared. See EUcock v, Mapp, 3 H. L. 492, and a. c. ; and the other cases collected, Wms, Exors, 1329 et seq.; and also Fruer v. Bouquet, 21 B. 33. (d) Middleton v. Spicer, 1 Br. C. C. 201 ; Taylor v. Haygarth, 14 Sim. 8. I 2 116 OP THE ADMINISTRATION OP ASSETS. case of an executor being appointed, and no intention manifested in the wiU that he should be excluded from taking beneficially, in which case it would seem that he is still beneficially entitled by virtue of his appointment, the statute of 1 WiU. IV. being con- sidered out of the case where there is no next of kin (a). So, where there is real estate undisposed of, and no heir, the Crown is in like manner entitled (b), unless the estate has been devised in trust ; in which case the failure of the heir and cestui que trust enures to the benefit of the trustee, according to the rule established in the well-known decision in Burgess v. Wheate (c). Distribu- Assuming, however, that there is an intestacy as to the sta- P^i't or all of the personal estate, and that there are *°**^' next of kin of the deceased, the Court of Administra- " tion will order the distribution of the fund according to well-known provisions of the statutes already men- tioned, and known as the Statutes of Distribution. 1. The Under these statutes, " one-third shall go to the widow ^ °^' of the intestate, and the residue in equal proportions 2. The to his children, or, if dead, to their representatives, — that is, their lineal descendants ; if there are no children or legal representatives [in other words, linea3*^escendants] subsisting, then a moiety shall go (a) Eussell v. Clowes, 2 Coll. 648 ; but see Powell ®. Merett, 1 Sm. & G. 382, where however the executor was expressly directed to hold "in trust," and the Crown was held entitled. (6) Taylor v. Haygarth, 14 Sim. 8 ; Barrow v. Wadkin, 24 B. 23. (c) 1 Eden, 177. And seethe judgment in Barrow v. Wadkin, and the remarks there on the limits of the decision in Burgess v, Wheate. children. Statutes op distribution. 117 to the widow, and a moiety to the next of kindred in 3. The next equal degree, and their representatives ; if no widow, the whole shall go to the children [if any] ; if neither •widow nor children, the whole shaU he distributed among the next of kindred in equal degree, and their representatives; but no representatives are admitted among collaterals further than the children of the intestate's brothers and sisters " (a). The father and mother of the intestate, being in the first degree of kindred, would thus have come in, where there was no wife or child, to the exclusion of the brothers and sisters, who are only in the second degree ; and;, says Sir W. Blackstone, " so the law remains with respect to the father ; but by statute 1 Jac. II. c. 17, if the father be dead, and any of the children die intestate, without wife or issue [children], in the life- time of the mother, she and each of the remaining children [or brothers and sisters of the intest9,te], or their representatives, shall divide his effects in equal portions " (&). The short effect of these statutes is, to adopt in the Comparison . , . of degrees distribution of an mtestate s personalty, among nis under the next of kindred, the steps or degrees of kindred ^*^^"^j;^^^ recognised in the Eoman Civil Law, and so that »?der the ° . „ , CiTilIiaw. each nearer degree shall take to the exclusion of the more remote, with the following very important varia- tions; that is to say: The degrees of the Civil Law are : 1st,, the children and parents of the intestate ; 2nd, the grandchildren, grandparents, and brothers (a) 2 Bl. Com. 515. (5) 2 BL Com. 616 ; 1 Jac. II. c, }7. 118 OP THE ADMINISTEATION OP ASSETS. and sisters.; 3rd, the great-grandchildren, great-grand- parents, uncles and aunts, and nephews and nieces; and so on. But the Statutes of Distribution, in the first place, introduce the widow of the intestate in priority to all the above relatives, giving her a third if there are children, and a half if there are none {a). And if the intestate be a married woman, her surviving hus- band takes the whole, independently of the statute (J). Next, these statutes, subject to the above rights of widow or husband (if any), give all to the children and lineal descendants, if any survive, excluding the father and mother, though in the same degree (c). Next, if there be no children or descendants, then, subject to the rights of the widow or husband (if any), the father (if any) takes all, excluding the mother, though of the same degree {d). Next, subject as last mentioned, if there be no father, the mother will not take all if there be also sisters and brothers, or children of a deceased sister or brother ; for these, though of the second and third degrees, shall share with the mother, if the right comes down to her (e). Again, subject to the previous rights, the children of deceased brothers or sisters shall share with the living brothers and sisters, though (a) 22 Car. II. c. 10, ss. 5 and 6 ; Wma. Exora. 1341. (J) 29 Car. II. u. 3, ». 26 ; Wma. Exora. 1340. (c) 22 Car. II. ^i. 10, bs. 5 and 7. There is no distinction of half-blood under this statute. See Wma. Exois. 1348, n. (x), and authorities ; and I if the descendants living and taking are in different degrees, as some children and some grandchildren, they take per ttirpea, otherwise if all are of the same degree. Wma. 1344; 2 Bl. Com. 617. (d) Blackborongh v. Davis, 1 P. W. 51. (e) 1 Jao. II. c. 17, a. 7 ; Blackborongh v, Davis, 1 P, W. 51. THE OBDEK OF THEIR APPLICATIOK. 119 T y / of inferior degree (a). After that, all of the third r^f degree will come in to the exclusion of the fourth, '■^'^^^^ and the fourth to the exclusion of the fifth, and so on (6) ; except that, as it should seem, in the third degree, the brother or sister take in preference to the grandfather or grandmother (c). Again, if there be an intestacy as to a part or whole of the real estate, that alae, if there be an heir of the deceased living, must be conveyed to the heir, and the Court of Administration, if necessary, will direct advertisements and inquiries to ascertain who the heir may be (rf). Section 3. Of the Order of Application of the Assets. Such being the priorities as between the claims on Order of • ■ • 1 ■ i 1 1 J} application the estate, the next pomt m order is the precedence oi of assets, liability (or order of application) as between the dif- t^g^r^^^ ferent portions or items of the assets under adminis- of ^^^ "re- . . ditors. tration. But here it is to be especially observed, that out of Court, and as between the estate and the creditors, the whole of the deceased debtor's property of every description is now subject to their demands, or, in other words, is assets for their liquidation (e) ; and (a) Keilway v. Keilway, 2 P. W. 344 ; Wms. Exors. 1357. (J) Wma. Exors. 1361. A tabular statement of the distribution will be found in the Appendix B., with the authorities which support it. (c) Evelyn o. Evelyn, 3 Atk. 762. (d) The questions arising on wills, as to the effect of directions to con- vert on the relative rights of the heir and executor or administrator, seem not to fall within the scope of these pages, but aeepost, p. 211. (e) 2 Jarm. Wills, 584, 3rd ed., 496, 2nd ed. 120 OF THE ADMINISTKATION OF ASSETS. that in whatever order of application each creditor may be pleased or enabled to resort to them (a), though not of course so as to violate the rules of priority mentioned in the preceding section, and established between the different classes of creditors inter se. This last priority a creditor cannot by any means break down in his own favour, except to the limited extent pointed out above (J). But as between the different species of assets, he may resort to any at pleasure (a), notwithstanding the order of the appli- cation thereof, which is about to be stated, and which is enforced by the Court of Administration, only by the indirect process which will be presently mentioned, and which is known as marshalling. And this para- mount right of the creditor the debtor cannot, by his wOl or any other document, to which the creditor is not a party, in any way affect or exclude. But quite otherwise it is with the order of application of the assets inter se, now about to be stated. For this order may be varied, or altogether excluded, by the will of the debtor, if he think fit so to do, — subject, however, always to the paramount rights of the creditors above mentioned. Thus a testator may by his will (subject to his creditors' rights) prescribe the order in which his assets shall be applied in payment of his debts, and make that order altogether different from what the law would otherwise have laid down for him. So, again, as to the legacies, while the law declares, in the (o) Wms. Exors. 1532, and note (m) ; 2 Jarm. Wills, 587, 3rd ed. (6) Chap. III. B. 2, p. 99, n. (c). PERSONAIi ESTATE PEIMAEILY LIABLE, 121 absence of any express declaration on the testator's part, out of what fund each legacy shall be paid, yet, if the testator so please, he may mould as he will the source and order of such payment, giving the gift generally or out of a particular fund, and otherwise not at all. But as to his creditors, he cannot overrule their right of helping themselves to payment out of whatever funds they may find available (a) ; and he can only direct the order of application of his assets in payment of his debts and legacies, subject to the above right. General Rule of Priority. With this observation, then, proceeding to the ques- Personal tion of what is the order of the application, prescribed ^™^f„"j by the law, of the various assets of a testator or intes- ^°^ ^^^^^ and general tate in payment of his debts and legacies, we meet, m legaeieB. the first instance, with one broad and fundamental general rule, which is this, viz., that as regards_^&fe, the primary fund for their payment is always the general personal estate (b) ; and that as regards pecu- niary legacies, in the absence of direction that they are to be paid out of any particular property, the general personal estate, or what remains after satisfying the funeral expenses and debts, is the only fund for their payment (c). (a) Wms. Exors. 1532, n. (m) ; 2 Jarm. Wills, 587, 3rd ed. (6) Wms. Exors. 1531-2 ; 2 Jarm. Wills, 588, 3rd ed. ; Howel v. Price, 1 P. W. 293, and n. (2) ; 2 Atk. 626 ; and cases in 2 Jarm. Wills, 588, n. (A), 3rd ed. (c) Greaves v. Powell, 2 Yem. 248 ; 2 Jarm. Wills, 584. 122 OF THE ADMINISTEATION OF ASSETS. Eeal estate. Besides this primary and general fund, the law adds, and indeed can add, only one other general source of payment, viz., the real estate of the deceased, his free- holds and copyholds of inheritance, including all that he has a general power to dispose of [a) : for they are in fact the only other description of property which remain, and they make up, with the personal estate of all descriptions, the sum of the possible property of every debtor. This real estate, as has been already pointed out (b), was not until recently liable at all to the debts of the owner : except to this extent, viz., that freehold estate descended was liable, in the hands of the heir of the deceased owner, to his debts by special contract, where the contract bound the heir (c) ; and then after- wards real estate devised was made liable, in the hands of the devisee of the deceased owner, to his debts by special contract, where the debt was recoverable by action of debt (d), or still later by action of covenant (e); unless indeed the owner had specifically bound his lands in his lifetime by mortgage, legal or equitable, or by judgment duly registered, or as used to be the case docqueted, or by recognisance or statute. By the law, however, as it now stands, the real estate of the deceased, both freehold and copyhold, is liable, after the exhausting of his personal estate, to his debts of (a) Fleming v. Buchanan, 3 D. M. & 0. 976; Williams c. Lomas, 16 B. 1. (6) See ante, Chap. II. s. 3, p. 85. (c) 2 Jarm. 652, 3rd ed. (d) 3 & 4 Will. & Mary, o. 14 ; Williams v. Knubley, 7 East, 128. (e) 1 Wm. IV, 0. 47. EEAL ASSETS. 123 every description, whether by specialty or simple con- tract, in the course of administration, which will be pre» sently pointed out,— the statute 3 & 4 Will. IV. c. 104, commonly called Sir J. Eomilly's Act, having in the year 1833 completed in this respect the administrative code now in force, by an enactment to the above effect. The successive steps by which the law has thus extended the incidence o^ debts of every description to all the property, real as well as personal, which the debtor may have left behind him at his decease, have been already stated in a previous section {a). All that the reader is at present concerned with, is the order of mpplication of the assets, personal and real, in satis- faction of the debts and legacies. But it should be observed here, that the effect of Eeal estate, the successive steps (J) by which real estate has thus assets, and become complete assets for payment of the deceased ^y®" ®*"'*" owner's debts, has been in each case successively to make the property subjected to the debts, legal assets for their satisfaction, according to the regular priorities stated in the last preceding section, exciting only in the case of the last step on the list, viz., that effected (a) Chap. II. B. 3, p. 84, ante. (i) Thus the original liability of descended real estate was clearly a legal one ; as was also that of the devisee created by 3 & 4 Will. & Mary, e. 14, and extended by 1 Will. IV. c. 47. So the Statute of Frauds "made freehold lands held upon a simple trust for the debtor (which, but for the Statute, would have been equitable assets) liable at law in the hands of the heir, executor, or administrator." 2 Jarm. Wills, 586, 3rd ed. So the trust of a term also, and equities of redemption, whether freehold or leasehold. Cook v. Gregson, 3 Dr. 547 ; Shee v. French, ih. 716 ; Mutlow ■0. Mutlow, 4 D. & J. 539. The statutes 47 Geo. III. u. 74, and 1 WUl. IV. c. 47, s. 9, appear to have been in the same form as the statute 3 & 4 Will. IV. 0. 104, but limited to traders. 124 OF THE ADMINISTEATION OF ASSETS, 3 & 4 Wm. by the Act of Will. IV., which makes the real estate IT. c. 104. " mentioned in it, assets " to he administered in Courts of Equity, for the payment of the just debts " of the owner, " whether on simple contract or specialty," " pro- vided that in the administration of assets by Courts of Equity, under or by virtue of this Act, all creditors by specialty* in which the heirs are bound," shall retain their preference. The effect of which seems to be, that real estate, which has to be realised by an application in equity, is still equitable assets, as the sale would still make necessary an apphcation to the Court by the cre- ditor ; but that this is subject to the special priority men- tioned in the proviso, which would make the proceeds ^ro tanto, and quoad that particular priority, legal assets (a). Necessity The assets, however, of every description, being thus for mar- . . ^ ^ shalling. applicable, as between each other, in a particular order, the outlines of which are broadly indicated by the above-mentioned general priority of the personal over the real estate, — but each creditor, as has been already observed, being entitied, as between himself and the (a) Cummins v. C. 3 Jo. & L. 64, 96 ; Foster v. Handley, 1 Sim. N. S. 200, proeeeding on the proviso in the Act. It is said to be otherwise, how- ever, if the estate is sold, and the money in the hands of the executors. Lovegrove v. Cooper, 2 Sm. & G. 271. Mr. Justice Williams queries whether this case is correctly reported, and considers it, as reported, to be in conflict with the previous authorities. But it is remarked by the editors of Jarman, vol. ii. p. 587, note (6), that it appears from 2 S. & G. p. 271, that the estate was m mortgage, which would account for the decision, as an equity of re- demption is clearly legal assets. The editors of Jarman, however, lay it down broadly that the Act of WiU. lY. makes the property legal assets generally. Tet if so, what is the object or effect of the proviso ? And see Lord St. Leonards' observations on the Act, in Hamer's Devisees' Case, 2 D. M. & G. 366 ; and Sir J. KoniUly's inKinderley v. Jervis, 22 B. 1. ; and Cummins v. C. ubi supra, appears to be an authority to the contrary. See ante, p. 78, n. (d.) MAESHALLIN&. 125 estate, to resort at pleasure to any part of either class of assets which he may find it most convenient or advantageous first to proceed against, — it becomes necessary for the Court of Administration to re-adjust the assets, so as to compensate as far as possible for any inequality or disappointment which may arise to any other creditor, or to any legatee, by reason of the possible withdrawal by the first-mentioned creditor of that part of the assets to which alone the second claimant may probably have had a right of resorting. Marshalling. Now this is "effected by the application of a weU- Principle known principle of equity, constituting what is called ung. a marshalling of the assets, — a process which may perhaps as fitly be noticed here, while we as yet have nothing before us but the simple division of the assets into real and personal, as it would be at a more advanced stage of the question. For the process of marshalling, though equally applicable and generally more required in the more comphcated divisions of the assets introduced by the provisions and directions in the will, and by charges or other acts of the testator in his lifetime, is precisely the same in principle, and wiU be perhaps more easily understood, as applied to the simple and primary division of the assets into real and personal. The principle in question is thus clearly and suc- cinctly stated by Mr. Jarman (a), as follows : " Wherever (fl) 2 Jarm. Wills, 2nd ed. 576, 3rd ed. 645. 126 OP THE ADMINISTEATION OF ASSETS. a party has a claim upon one fund only, and another upon more funds than one, the party who has several funds must resort, in the first instance, to that on which the other has no claim.''' This is the principle (a) : now comes the application. " Wherever a creditor having more than one fund (the real and personal estate for instance), resorts to that which, as between the debtor's own representatives, is not 'primarily liable [viz., the real estate], the person whose fund is so taken out of its proper order [viz., the devisee or heir of the real estate], is entitled to be placed in the same situation as if the assets had been applied in a due course of administration ; in other words, to occupy the position of the creditor in respect of that fund whixih ought to have been applied [viz., the personalty] to the extent to which his own [viz., the real estate] is exhausted" (b). And this it is which is called marshal- ling the assets. And the instance which Mr. Jarman gives is the simple one between the real and personal assets (c). "If simple contract creditors," he says, " choose to enforce payment from the personal repre- sentatives of the debtor, instead of suing, as they may do, the heir in respect of any real estate descended to him, and thereby withdraw the persormlty from the claims of ^ecific or pecxmiary legatees, the Court will marshal the assets in favour of such legatees by placing them in the room of the creditors as it respects their claim (a) See Aldrich d. Cooper, by Lord Eldon, 8 Ves. 382, 392, Tidd v. Lister, 10 Ha. 257 ; 3 D. M. & G. 387 ; Ee ComweU, 2 C. & L. 131. (5) 2 Jarm. Wills, 2nd ed. 571, 3rd ed. 640-1. (c) 2 Jarm. Wills, 2nd ed. 672, 3rd ed. 641. MARSHALLING. 127 on the descended lands." Otherwise the legatees, who can have no claim on the realty, would be entirely disappointed. By the simple process, then, of marshalling the assets, or of recouping each fund or class of assets, which, in satisfying creditors may have been taken out of its proper order — out of that other fund or class of assets which, if the proper order had been observed, would have been so applied — th© Court of Administration ultimately reconciles and secures the rights and inte- rests of all parties, and is enabled finallyto distribute the residue of the estate, real and personal, according to the directions of the will and of the law; not, indeed, so as actually to pay the debts out of that part of the estate which, according to those directions, should have borne them, but to put the parties entitled, in the same position as if it had been so. It may be stated as a general rule — the exceptions to Applica- it being confined to but one or two mstances [a) — that principle, the Court will apply this principle of marshalling in all cases in which the assets have been taken out of their proper and estabHshed order ; in other words, in all cases in which a resort to it is needed; or, as the rule may be otherwise expressed, the Court will marshal in favour of every claimant on the estate who (a) The exeeptions are : 1, that the Court, generally speaking, will not marshal in favour of a charity. See post, Book II. Chap. I. u. 2, and 1 Jarm. Wills, 213, 3rd ed. 2. That the Court will not marshal as hetween and in favour of pecuniary legatees, against specific devisees ; if in- deed this last can properly be called an exception at all. See 2 Jarm. ch. xlvL s. i, p. 641 et leq. 3rd ed. And see Tombs v. Eoch, 2 Coll. 490. 128 OF THE ADMINISTEATION OF ASSETS. has been disappointed by a departure from the esta- blished order, whether creditor, legatee, or otherwise, as against all parties who have benefited by such dis- appointment. Priority hy Acts of the Deceased. Personal HaYing thus briefly stated the principle of marshal- maiTly^"' li^gj I proceed to distinguish further the order in which liable to ^jjg assets are applicable, when the distinctions on the discnaTge jrjr > incnmbered subject which are introduced by the acts of the testator or intestate himself, are taken into consideration. The grand and primary distinction between the per- sonal estate and the real, is, as I have already said, made, not by 'the testator or intestate, but by the law. But there are others resulting from acts of testa- tors : and first, as to the effect of the acts of the tes- tator or intestate completed in his lifetime, his non- testamentary acts, in short ; as his mortgages, charges, judgments, recognisances, and all other acts of incum- ■ hrance, whether affecting his personal estate or his real, and having the effect of subjecting any specific part of his property to any specific debt or debts, or to his debts generally. The practical rule here, which has been long established, is, that generally speaking, and subject to the special exception stated below to have been established, the person entitled to the pro- perty thus incumbered, subject to the incumbrance, is entitled to have the incumbrance cleared off out of the general personal estate {<£). (a) See the rule stated, 2 Jarm. Wills, 595; 'Wnis. Exors, 1533, n. (m). EXONERATION OP EEAL ESTATE. 129 Thus in the case of a mortgage of real estate, the Mortgaged old rule was, that the devisee of the estate was entitled, onerateT in the ahsence of a contrary direction in the testator's will, to have the charge paid off out of the general personal estate, and to marshal the assets (if neces- sary) for the purpose. So, also (and this is stiU the rule), where a testator or intestate contracted to pur- Purchased chase real estate, and died before paying for it, theplid&r!" heir or devisee of the esta£e is entitled to have it paid for out of the general personal estate, and to marshal the assets, if necessary, for the purpose, as against the general and residuary legatees (a). So, also, if a tes- tator bequeaths a " watch or painting, and at his Property in decease the watch or painting is in pawn, the legatee is entitled to have it redeemed" out of the general resi- duary personal estate (S). And the principle is this : that wherever there is an incumbrance on any specific part of the assets created by the testator in his life- time, such charge is, in the administration of his assets, to be regarded as intended to secure the creditor, and not to prejudice the rights of the devisees or lega- tees of the estate ; and consequentiy, zmless the debtor otherunse directs, either in his will or otherwise, the secured debt, like every other, will be taken account of in the administration, and the regular order of the applica- tion of the assets will be observed with respect to it (e). (a) Whitaker i». Whitaker, 4 Bro. 0. C. 31 ; Broome v. Monok, 10 Vea. 697 ; Sugd. V. & P. chap. r. s. 1, 13th ed. ; Wms. Exors. 1596. (i) The rnle and many instances will be found stated 2 Jarm. Wills, 532-3, 2nded., 596, 3rd ed., from whom the last paragraph is a quotation. (c) See, however, the judgment of Wood, V.-C, in Bonds. England, 2K. & J. 44, as to the extent to which this principle has been now departed from, K 130 OF THE ADMINISTEATION OP ASSETS. But of course the debtor can exclude the rule by his will, subject to the rights of the creditor. It is consistent with this rule, that where a testator has not himself created the incumbrance, but has taken the property, as it is said, cum owere, there the rule does not apply (a) ; and a devisee from that testator is not entitled to have the estate cleared at the expense of the personal estate. For, as is obvious, it is not the testator's debt; and the mortgaged estate itself, not the assets of the last testator, must therefore, as between these two funds, bear the charge (a). This Exception general rule, however, has now been in One remaik- statute 17 ^ble instance varied, by statute 17 & 18 Vict. c. 113, ^ 113^^°* passed in 1854, and commonly called Locke King's Act ; the effect of which is, that where " land or other hereditament " is " charged by waf of mortgage," and the person entitled subject thereto shall not " hy his will, deed, or other document" ham signified any contrax^ intention, the heir or devisee from him shall not be entitled to exoneration out of the personal estate or other real estate, but shall take cum onere, with a pro- viso saving the rights of the creditor ; and this Act, which takes effect only on deaths since December 31st, 1854, has been held to extend to equitable mortgages and charges (6). And it has been observed by Lord (a) See tbis exception stated in 2 Jarm. 'Wills, 600-1, 3rd ed. Sir W. Wood, V.-C, in Bond v. England, 2 K. & J. 44, explains with mnoh clearness the application of the rule in cases where the testator has by some act in his lifetime assumed, or acted so as to he open to the imputa- tion of, a personal liability to the debt. See also Swainson v. Swainson, 6 D. M. & G. 648 et seq. (6) Pembroke v. Friend, 1 J. & H. 132. On the retrospective operation of the Act, see Piper v. P. 1 Jo. & H. 91. LOCKE king's act. 131 Campbell, C, that its simple effect is (as to mortgages of real estate), to reverse the old. rule; and whereas before the Act a devisee of an estate in mortgage was always entitled to exoneration, unkss the testator ex- pressed a contrary intention, so now a devisee of an estate in mortgage is never entitled to exoneration, but always takes cum onere, unless the contrary intention is expressed by the testator (a). But a gift of residue of real and personal estate, " subject to mortgage and other debts," or in trust for payment of debts, has been held to show a contrary intention ; an intention, viz., that the ! mortgaged estate is not to pay, and that the statute is excluded (b) ; while in Pembroke v. Friend, and Woolsten- J croji V. Woolstencrofl, a mere direction to executors to ; ' pay debts generally was held insufficient to show an intention to exonerate the mortgage estate and exclude j the Act. The Act, moreover, does not apply to mortgages of pure personal estate, as to which the general rule above stated still, consequently, applies. And this brings me to the next and most important Special di- source of the further distinctions which are found in "°u'°"n ex- the order of application of the assets, in their adminis- onerationof tration by the Court : I mean the Will of the testator. The rights of the testator's creditors, indeed, his Will, as has been already often observed, cannot exclude. But as between the assets, the testator can reverse or (a) By Lord Campbell, C, in Woolstencroft «. ■Woolsteneroft, 9 W. E. 42 (on appeal from V.-C. S.), and Pembroke v. Friend, 1 J. & H. 132. (J) Qreated v. Or. 26 B. 321; Stone v. Parker, 1 Dr. & S. 212; Smith V. S. 3 G. 263, E 2 132 OF THE ADMINISTEATION OP ASSETS. vary all or any of the ordinary rules governing their order of application. Provisions First, then, I take the great rule of the primary ing the liahUity and application of the general personal estate ; persona ty. ^^^ }xere the point to be attended to is, to see, not that the real estate is charged by the ■will, but that the per- sonal estate is discharged by it. "That making a provision for debts or legacies out of the real estate does not discharge the personalty, is implied from the very terms of the question [to be considered]. There must be an intention not only to onerate the realty, but to exonerate the personalty ; not merely to supply another fund, but to substitute that fund for the property ante- cedently liable." Thus, neither a charge of debts on land, nor a devise in trust for sale, will prevent the personalty from being still first applicable (a). But if the intention is clear on the wUl that the general personal estate should not (as well as that the real estate or some other particular part of the assets should) bear the debts, this will be sufficient (6). So, also, if the testator express an intention with sufficient clearness to blend his real and personal estate into Mixed a mixed fund for payment of his debts, the ordinary priority of the personal estate will be merged, and the (a) See 2 Jarm. Wills, 613 et seq., 3rd ed., and Wms. Exors. 15, 42 et seq., Trhere tlie cases are collected, showing vhat words in a will are sufficient to exonerate the personalty and make the real estate pri- marily applicable ; bnt amongst them it will perhaps suffice to mention here the leading one of Bootle «. Blundell, by Lord Eldon, 1 Mer. 193, 19 Ves. i9i, by which mainly the present doctrine has been arrived at, to the effect that express words are not necessary to such exoneration, if the intention can clearly be collected from the will or any part of it. (&) Bootle V. Blundell, liU supra, and see last note. fund. EXONEEATIOK OF PERSONAL ESTATE. 133 two estates will pay rateably (a). The cases require, generally speaking, that in order to create a mixed fund of this kind the testator should, at aU events, direct his real estate to be sold, and the proceeds blended with his personalty. But though an exoneration of the personal estate be not effected by the will, it must not be supposed that other provisions, short of this exoneration, altogether fail of effect. Suuh provisions, the effect of which I now proceed to consider, may be distinguished generally into itoo classes : — 1st. Directions or gifts making a special fund for l. Fund the payment of debts and legacies. payment 2ndly. The opposite case of dispositions of property ^ ^^'f^j. for other purposes, having the effect of withdrawing it, other pur- poses. as far as the testator can, from debts or charges. Take then, first, express gifts of land or other property Fund for to pay debts. The effect of such a gift (by itself) is not, as we have seen, to exempt the general personal estate from its prior liability or concurrent liability, as the case is, to pay the debts, but such a devise of real estate has the effect of making the property comprised in it liable next to the general or residuary personal estate, and in priority to and exoneration of both the undisposed of or descended real estate, and also of all property, both real and personal, which the will may have given away to other purposes (6). (a) Boughton v. James, 1 H. of L. Oa. 406 ; Tench v. Cheese, 6 D. M. & G. 459 ; BUnn v. BeU, 5 De G. & S. 662 ; Tidd v. Lister, 10 Ha. 166. (6) By Lord Thurlow in Davies v. Topp, 1 Br. C. 0. 626 ; by Lord 134 OF THE ADMINISTEATION OF ASSETS. CJhargeof But a mere charge of debts upon an estate or property seems not to be equivalent for aU purposes to a regular devise or gift of the same property for payment of the debts, and is distinguished from it as not having the effect which such a devise or gift, as we have just seen, has, of exonerating, at the expense of the pro- perty comprised in it, the descended or undisposed of real estate («). And the statute of Will. IV., making real estate assets for simple contract debts, applying only to those lands "which the testator should not have charged with or devised subject to the payment of his debts," has not altered this law, but has left the effect of the charge where it was before (J). Effect of Again, take the other class of testamentary dispo- other de- sitions which I have mentioned, viz., simple gifts of Tiaesand pg^j^g of -(^e estate for purposes other than debts ; or, in other words, devises or bequests, specific, general, or residuary. On these it is to be observed that their effect is, as might have been anticipated, simply to give a prefer- ence, on the question of exemption, to property which is the subject of them, over property which is not so. Thus, in administering the estate to pay debts, pro- perty altogether wwdisposed of, real or personal (or, which is the same thing in case of personalty, only dis- posed of after payment of every charge), is naturally applicable for debts, before property appropriated to Eldon in Hannood i). Oglander, 8 Vesey, 125; Fhiflipa ■». Parry, 22 B. 279 ; 2 Jarm. WUle, 3rd ed. 588 ; 1 Seton, 3rd ed. 317. (a) By Lord Tturlow in Davies v. Topp ; by Lord Eldon in Earmood v. Oglander ; 1 Seton, 318, 3rd ed. ; 2 Jarm. Wills, 688. (&) Bickards v. Barrett, 3 E. & J. 289. OKDEE OP LIABILITIES. 135 general legacies or gifts; and property given in general gifts is applicable, and must be taken, for debts, before property otherwise specifically given by the "will, whether real or personal (a). But here it must be remembered that real estate Residuary given generally/, or as residue, is now, i.e., since the estate. Wills Act, 1 Vict. c. 26, distinguished for the present purpose from real estate specifically devised, and is applicable for debts, consequently, before such real estate specifically given (6). The sum, then, of what has been said, is this : — The first fund to be applied, in order of administra- tion, for payment of the debts, is : — I. (1) The general personal estate, not at all, or not I. Ii. Pro- specifically bequeathed, or, in other words, the resi- disposed of duary personal estate (c). This is legal assets {d). ^°^,T!Zr' (2) JReal estate esmressly devised to pay debts (e). This tlian pay- ■ J. 1 ment of is equitable assets, being reached by virtue of the debts. devise (/). II. (3) The descended or undisposed of real estates (g'). (a) See the next foUowing notes, and also 2 Jarm. WillB, 689, 3rd ed. ; 1 Seton, 319, 3rd ed., and cases cited. (d) Dady e. Hartridge, 1 Dr. & S. 236 ; BameweU v. Iremonger, ib. 242 ; Eotheram v. Eotheram, 26 B. 465 ; 2 Jarm. 688, n. (p) ; Baxnav. Watkins, Zay, 432, 442-8. But such general or residuary real estate is not applicable, of coarse, tiU after the general personal estate, and also after real or personal property specially devoted by the will to payment of debts. (c) By Lord Thurlow iu Davies v. Topp, ubi mpra ; Harmood v. Og- lander, 8 Vesey, 124 ; 1 Seton, 317, 3rd ed. ; 2 Jarm. WiUs, 588, Srd ed. {d) See 1 Seton, 317 ; and see mpra, Chap. II. s. 2, p. 76. (e) Davies v. Topp, Harmood v. Oglander, Phillips v. Parry, ubi evpra; 1 Seton, 317 ; 2 Jarm. Wills, 588. (/) See 1 Seton, 318 ; and see Chap. II. s. 2, p. 75, supra. {g) Wride v. Clark, 2 B.C. C. 261 ; 1 Seton, 318 ; 2 Jarm. 588. 136 OF THE ADMIKISTEATION OP ASSETS. These are legal assets, as regards specialty creditors {a), but as regards simple contract creditors, they are assets under the statute 3 & 4 Will. IV. c. 104 (a). (4) Real or personal property merely charged with debts (J) . This is equitable assets, being reached only by virtue of the charge, through a proceeding in equity (c). (5) Residuary real estate (d). III. Pro- III. (6) (e). Personalty given in general or pecuniary perty (lis- \ / \ / ^ o ^ posed of for legacies, -which, if not wholly required, will have to "W^n abate pro raid if ). payment of (7J jggf^i [or personal] estate specifically given {g), or debts. (a) See mpra, pp. 78 and 124 ; 1 Seton, 318 ; Ball v. Harris, 4 My. & C. 269 ; Mirehouse v. Soaife, 2 My. & Cr. 708. (6) Wride V. Clark, Davies v. Topp, ubi mpra; 1 Seton, 318, 3rd ed. ; 2 Jarm. 'WillB, 588. (c) 1 Seton, 318. (d) See authorities in note (5), p. 135, supra. (e) Up to this point I have mentioned only property not specifically given away in legacies or devises, viz. : — Property, real or personal, either not given at all. Or given only as residuary, i.e., subject to debts ; Or given expressly for payment of debts. And on this the rule is, that a special gift to pay debts does not dis- place the primary liability of the personal estate thereto, but does bring in the fund thus given before the residuary real estate. But if all these are exhausted, then we take those which follow in the table given in the text. (/) CUfton V. Burt, 1 P. W. 680 ; 1 Seton, 319 ; 2 Jarm. Wills, 389. (ff) 1 Seton, 319 ; 2 Jarm. Wills, 389 ; 3 & 4 Will. IV. 0. 104. This sta- tute has not the effect of making real estate, which is equiiaile assets by virtue of a charge (see swpra, p. 135), legal assets ; Bickard v. Barrett, 3 K. & S. 289 ; Ball v. Harris ; Mirehouse v. Scaife, uH sv/pra ; nor, I conceive, of making any estate legal assets which, but for the statute, was not assets at all, except to the extent of the proviso in the statute. See ante, pp. 78, 124 ; Hamer's Devisees' Case, 2 D. M. & G. 366 ; Kin- derley v. Jervis, 22 B. 1 ; Cummins v. C. 3 J, & L. 90. As to personal estate, see Tombs v. Iloch, 2 Coll, 490. OKDEB OF LIABILITIES. 137 (8), appointed {a), not charged with debts. This real estate, as to specialty creditors, is legal assets (6). Taking (c), then, first, the established principle of Principles the primary liability to debts of the personal estate," ^™®°- before the real estate ; secondly, taking into account the effect of express gifts or charges for providing for debts, as establishing another distinction between the assets ; and, thirdly, taking into account the difference between property given away in legacies or devises, and property not so given, — we arrive, by a general application of these principles, at the same result, and conclusions, which are established in detail by the par- ticular authorities, observing at the same time the prin- ciples on which the gradations of liability are based. Thus, as between property given away by the will, l. Speoifi- and property not so. The latter always necessarily property*" comes last to be taken for debts. *^™ ^^*- But of the undisposed of property, personal comes 2. Undia- /. . .1 1 posed of first, then real. property, And if a testator expressly makes a fund for his p^sonai _ . before real. debts, that wiU be applied before anything, except 3. Fund for debts, first undisposed oi personalty. applicable. Applying these several principles to the case before us, we arrive at the gradations presented above. (a) Fleming v. Buchanan, 3 D. M. & Q. 976. (J) 1 Seton, 319. See supra, pp. 78 and 124. (c) In 2 Jarm. Wills, 3rd ed. 588, and 1 Seton, 317-319, 3rd ed., the substance of the table given in the text of the order of application of assets in payment of debts, will be found, irith several further authorities, establishing these steps or gradations in detaU. What has been here attempted, has been to deduce these several steps from the elementary and admitted principles of law. tion. 138 OP THE ADMINISTEATION OF ASSETS. Conclusion. Eecapitula- Such, then, is the order and course of the application of the assets in payment : 1, of the costs; 2, funeral and testamentary expenses ; 3, debts ; and 4, legacies, in a due course of administration. It remains only to state, in conclusion, that the accounts being taken, 1h.e costs taxed, and the residue, if any, ascertained, the whole matter is wound up, either entirely, or (if there are life interests or annuities, then subject thereto,) by decree on farther consideration, directing payment out of the assets in Court or in the hands of the executor — 1. Of the costs, taxed ; 2. Of the debts (if any) found to be due ; 3. Of the legacies ; 4. Setting apart the funds for the life interests and annuities ; and, Lastly, distributing the residue presently payable (if any) between the persons found by the certificate to be the next of kin of the intestate, or to be the persons constituting a class of residuary legatees, or otherwise, as the rights may be {a). Here it is, too, that it becomes necessary to construe the testator's will, if there is any question upon it, the whole facts being then by the certificate before the Court and capable of being adjudicated on. But before the cause thus comes on on further consideration, the Court, generally speaking, declines to construe the wlU, or in any (a) See pott, p. 234. By the 23rd Consolidated Order, rule 9, proTision must always be made for payment of the legacy duty or sacoessioii duty on the fund in Court, before it is thus ultimately distributed. CONCLUSION. 189 manner anticipate the questions which may, and which it is foreseen will, arise, when the fund comes to be ultimately distributed and wound up (a). And when the annuities and life interests fall in successively, further and successive applications are made to the Court for the distribution of the further assets thus released, until the whole estate is finally disposed of (6). (a) GaskeU v. Holmea, 3 Ha. 438. ib) As to the distribution of the estate, when infants and married women are interested, see Sook II., Chap. II., s, 4, post, p. 234. BOOK II. THE ADMINISTRATION OF TBUSTS. Teusts being divisible, according to their obiect, Division of ° ° ■* trusts. into — 1. Public trusts, or those which have for their aim i- PuWio- the general benefit of the community, or of some con- siderable section of it, which are usually called Cha- ritabk Trusts ; and — 2. Private trusts, or trusts for the benefit of indi- ^- P"™te. viduals ; I propose to take these two classes of trusts in their order, and to commence with the administration of Public or Charitable Trusts. CHAPTEE I. PUBLIC OB CHARITABLE TEUSTS. Section 1. Of the Jurisdiction in the administration of Charities. A brief inquiry, then, into the origin, nature, and extent Ori^n of of the jurisdiction exercised by the Court of Chancery diction. in the administration of public or charitable trusts. 142 THE ADMINISTEATION OF TEUSTS. seems to be a necessary and fitting preliminary to the consideration of this administration itself, — its objects and course of procedure. And on this subject we find, in the first place, the following passage in the Commen- taries of Sir W. Blackstone : — The pre- " The King, as parens patriae, has the general superin- ttf*c"omi. tendence of charities, which he exercises by the keeper of his conscience, the Chancellor. And, therefore," adds Sir W. Blackstone, "wherever it is necessary, the Attorney-General, at the relation of some informant (who is usually called the ' relator'), files ex officio an information in the Court of Chancery, to have the charity property established " (a). Such is Sir W. Blackstone's account of the origin of this jurisdiction. Thejuiia- Other great authorities, however, have maintained, trust" "^"^ *^^* since, notwithstanding the researches made in mo- generally. ,jem times into the records of the Court of Chancery, no traces can be discovered of any information on be- haK of the Crown for establishing a charity before the time of Queen Elizabeth, therefore the present juris- diction exercised by the Court of Chancery over charities must be deduced, in part at all events, from the ancient authority of that Court in enforcing trusts generally ; of which class of obligations chari.tabk or public trusts have ever formed a recognised part. And in support of this position, besides the high authority of Lord Chancellor Loughborough in Attorney- General v. Bmyer (6), Lord Comr. Eyre in Attorney-General v. (a) 8 Bl. Com. 427. (6) 3 Veaey, 726. ORIGIN OF JURISDICTION OYER CHARITIES. 143 Foundling Hospital {a). Lord Eldon in Attorney-Gene- ral T. Dixie (6), and other eminent judges (c), we are referred by the learned researches of Mr. Spence(c?) to several instances in which, as early as the reigns of Henry VI., Edward IV., and other times prior to the statute of Elizabeth mentioned below (e), suits for enforcing charitable gifts were instituted by bill, as in the case of other and ordinary trusts ; while no such early instances are found of proceedings by information on behalf of the Crown ; which would have been the case if the jurisdiction had been derived exclusively, or, as it is contended, even at all, from the prerogative mentioned by Blackstone. And the introduction of the present proceeding by information on behalf of the Crown is on this last hypothesis ascribed to the statute of Elizabeth mentioned -below (e), which introduced, in the first instance, a proceeding by Royal Commission, for which the present proceeding by ex officio informa- tion was afterwards, as it is supposed, substituted (/). The modem jurisdiction, however, Mr. Spenoe con- The present eludes ig), as " exercised at this day" [by the Judges of of mixed the Court of Chancery], " is now generally treated as °^f^^^^^ a mixed jurisdiction, compounded of the general juris- diction of the Court of Chancery over trusts, and of the (o) 2 Veaey, jiin. 42. (6) 13 Vesey, 519. (c) The cases will be found collected in Mitf. PI. by Jeremy, 4th ed. 101, n. (h). {d) 1 Spence, 588, n. (e) and (/). (e) Poit, p. 144-5. (/) See 1 Spenoe, 691, 592, where the maturing, if not the introduction of the proceeding by infonnation, is attributed to the Judges subsequent to Lord Chancellor Nottingham. ig) 1 Spence, 592. 144 THE ADMINISTEATION OF TEUSTS. prerogative jurisdiction committed to the Chancellor by the Sovereign as parens patrice, he having in that cha- racter a general superintending power over public interests when no other person is entrusted with that power." Eesaltsof And this conclusion, which seems at all events to character accord with what we find to be the existing law, what- of the juris- g^gj. .^^^ ^jg ^jjg j.gj^j history of the origin and esta- blishment of that law, is not, by any means, without its practical bearing and importance ; for owing, as it should seem, to this distinction between the trust jurisdiction of the Court of Chancery (as one element of the jurisdiction in administering charities), and the prerogative jurisdiction of the Crown as guardian of public charities (as the other and remaining element of such jurisdiction), there seems to have arisen, as we shall presently see, in cases where the specific cha- ritable intention of a donor fails by reason of illegality or otherwise, a question — ^whether the Court of Chan- cery is to apply the property according to its own established rules, to as nearly similar a purpose as possible, or, as it is called, " cypres," — or whether, on the other hand, the Sovereign is to dispose of it by sign manual for any public purpose of public charity, which to him may seem fit. Statute of The equitable jurisdiction over charities, however, Use^ 43^ being of such mixed origin and character, or at least Eliz. c. 4. Qf g^gj^ mixed character, as I have mentioned, it clearly and undoubtedly rests, at this day, as on its framework and foundation, on the statute of 43 Eliz. c. 4, the well-known Statute of Charitable Uses, the STATUTE OF CHARITABLE USES. 145 Magna Charta, as it may be called, of the Law of Public Charities, and within which, either in its letter or in its spirit, every case must be brought before it can be now safely pronounced to be a charitable trust or purpose. " Do purposes of liberality and benevolence," says Wlat is a SirW. Grant, in Moricey. Bishop of Durham (a), " mean techMcaliy the same as objects of chai;ity ? That word in its widest ^P^^^'^g- sense denotes all the good affections men ought to bear towards each other, — in its more restricted and com- mon sense, relief of the poor. In neither of these senses is it med in this Court. Here its signification is derived chiefly from the statute of Elizabeth. Those pur- poses are considered charitable which that statute enumerates, or which hy analogies are deemed within its spirit and intendment, and to some such purpose every bequest to charity generally shall be applied." The word "charity," indeed, in its legal sense, as used in the term charitable trust, does not, as Sir W. Grant points out, mean or include every gift, for what would be popularly called " a charitable purpose." The ' gift, to be legally charitable, must be general or public. A gift to a private individual, or many individuals spe- cifically, however much they may need it, is not in law a charity (6). A legal charity must be for a public purpose, general or local. But we must turn to the statute, as Sir W. Grant points out, if we wish to ascertain specifically what the term charity legally does mean ; and by what notes a charity is to be identified. (a) 9 Vesey, 405. (h) Ommaniiey v. Butcher, T. & E. 270< 146 THE ADMINISTRATION OP TEUSTS. Objects This Act, then, of 43 Eliz. c. 4, will be found, on tCstatutl reference to it, to enumerate by way of recital, in sub- stance, the following classes of objects as falling within its scope ; that is to say : — 1. Poverty. 1. The relief of the poor [" aged and impotent — and poor people "]. 2. Sickness. 2. The care of the sick and maimed ; in other words, hospitals. The Act specifies only " sick and maimed soldiers and mariM&rs," but hospitals generally are clearly within the spirit of the Act, and have always been so held. 3. Educa- 3. Schools and education generally. 4.™ubiic ^- The support and repair of bridges and other works. public works of a beneficial character, and of which other instances are given in the Act. 5. Mar- 5. Gifts for endowing poor maidens generally, and ™'^^" to promote marriage. 6. Trade. 6. Gifts in general aid and help of young trades- men, handicraftsmen, and persons decayed. 7. Eedemp- 7. Gifts for redemption of prisoners. sonere. ^"' 8. And lastly, gifts in ease of taxes, rates, or the like. ^uUi^'bu"- ^^ ^°^ *^® above, or the like purposes, this statute dens. sanctions and directs the enforcement of gifts, whether by will or otherwise, of every or any species of pro- perty, including land — the restrictions of the so-called Mortmain Act of Geo. II. being a matter of subse- quent introduction ; and the old or proper Mortmain Acts, in force in Elizabeth's reign, having no other effect on charitable gifts than to make it requisite, where the gift, being one of land, was to a corporation, for such corporation to have a licence from the Crown WHAT IS A CHAEITT. 147 to hold the land in Mortmain. And now, subject to the Mortmain Act of Geo. II. hereafter to be noticed, any gift of any property whatsoever, landed or moYe- able, either for any of the purposes just enumerated, as being expressly mentioned in the statute of Eliza- beth, or for any purposes analogous thereto, — i.e., coming, as the phrase is, within the equity of the statute, — so only that they be not illegal, will be en- forced and administered by the Court of Chancery. This last class of cases, however, viz., those reached. The equity not by the letter, but by the spirit or equity of the tute. statute, are a large and wide category {a), the nature and extent of which, the limits of the present publi- cation will permit me only to indicate, by mentioning a very few instances. Thus, as a specimen of the extent to which this equity of the statute has been, one may almost say, stretched, it may suffice to mention that among the cases in the books of good public cha- ritable gifts within this equity, are to be found — a gift to a parish clerk, to keep the church chimes in repair to play certain Psalms (S); — a gift generally to the British Museum (c) ; and a gift for the benefit and ornament of a town (d) ; while more recently, the (a) An enumeration of very many of them — of gifts, that is to say, which have heen upheld as falling within the equity of the statute, — will be found in Hill on Trustees, (a work in many respects more complete even than the excellent book of Mr. Lewin), p. 461 ; and also in 2 Jarm. Wills, 192, 3rd ed. ; to which books I cannot do better than refer the reader. (6) Turner v. Ogden, 1 Cox, 316. (c) Trustees of British Museum v. White, 2 S. & S. 594. ((2) Farersham v. Byder, 18 B. 318; 5 D. M. & Or. 356. ^ 1 2 149 THE APMINISTEATION OF TEUSTg. present Master of the Rolls has maintained a bequest for founding and upholding an institution for the cure of maladies in animals useful to man, as a good charitable legacy («). Any object, in short, -which is generally beneficial, or, as it is expressed, a pubKc charity, may be said to be within the scope of the statute. As Sir John Leach, V.-C.,has well stated the matter in the case of Attorney -General v. Heelis (6); " Gifts for any legal, public, or general purpose, are charitable funds to be administered by Courts of Equity. And it is not material that the particular public or general purpose is not ecepressed in the statute of Elizabeth, if it come toithin the equity of that statute. Thus, a gift to maintain a preachiug minister — a gift to buUd a sessions-house for a county — a gift by a Parliament of a duty on coals imported into London^ for the purpose of rebuildrug St. Paul's Church after the fire of Londofl — have all been held to be charitable uses within the equity of the Statute of Elizabeth." Gifts not And, perhaps, the best illustration of what a good legal charity is, wiU be to refer to one or two decisions laying down what it is not. Thus, I have said that it must be for a public pur- pose ; & private charity wiU not be upheld. Therefore, a gift of money to be distributed "in private charity," eo nomine, has been held bad (c) ; and though it is not easy to say sometimes whether particular gifts are for (a) Univ. of London v. Yarrow, 23 B. 159 ; a£Bj:med on appeal by the full Court of Chancery, 1 De G. & J. 72. (6) 2 Sim. & St. 76. ic) Qjnmanney v. Batcher, '!. & R. 270. WHAT IS A CHAMTT. 149 public or private purposes ; yet if they are manifestly of the latter character, they -will fail (a). Again, the charity must be a gift to others, not a mere expenditure of people's own money ; on which ground Sir J. Leach, in the case of Attorney -General V. Seelis, already cited (6), laid it down that a fund raised for lighting a town, wholly hy rates or assessments on the inhabitants themselves beiag " in no sense derived from bounty or charity," was not a charitable fund to be administered in Court. V.-C. Wood, however, in Attorney -General Y. Eastlake{c), upheld as charitable, the administration of a fund derived from rates for purposes of the above character, on the ground that though the inhabitants themselves were not benefited without payment of an adequate consideration, yet that strangers and visitors were, and so there was a* good charity. So, also, it seems " benevolence and liberality " are not charity, and if those words only are used, there is no charitable gift. But, perhaps, this decision (which was made by Sir W. Grant, in Morice v. Bishop of Ihirham{d) already cited), comes rather under that class of decisions which establish that there must be a sufficient clearness in the intention ex- pressed, of devoting the property to charity. Gifts, however, whether by will or otherwise, gjftg ^j,,. specially made for any of the purposes of general ™*ea°op« public benefit, which are above instanced, within the tute, up- scope of the Statute of Elizabeth, are established (o) Nash V. Morley, 5 Bear. 177. (*) 2 S. & S. 76. \c) 11 Ha. 213. \d) 9 Tesey, 405 ; and see WaUams ». Kershaw, 5 CI. & F. Ill, n. 150 THE ADMINISTEATION OF TRUSTS. and enforced by the Court of Chancery through the administration which we are now considering; and form its general subject matter. But the This, however, is done only under certain conditions. befnot'^ife- The purpose or object, first of all, must of course be not *"'■ illegal, i.e., it must not be one forbidden by any par- ticular statute or rule of law ; as for instance, gifts for the maintenance of oUts, or prayers for the dead, are illegal as being prohibited by Statute of Edward VI. ; so a gift for purposes contrary to public policy, as tending to prevent or discourage maniage, or the like. The gift But next, the subject and manner of the gift must not must not contravene be such as to bring it within the prohibitions of the Act of m^Aot, 9 Greo. II., c. 36, commonly, though erroneously, called le*' ^^' *^® Mortmain Act ; by which all charitable gifts of %real estate, or of any interest therein, or of any personal estate to be laid out therein, are absolutely avoided, unless made by deed, executed before two witnesses, twelve calendar months before the death of the donor, enrolled withia six months after execution, and without reservation or right of revocation in favour of the donor; but if the subject of the gift be stock in the public funds, the transfer must be within six months of the donor's decease (a). The numerous decisions on this statute will come more conveniently under notice when the administra- (a) Fnrchases by charities for yalnahle conraderation arc excepted &om the proTisiou requiring twelve months to elapse before the death of the grantor ; and the 4th schedule exempts from the operation of the Act the two ancient Universitiea and their colleges, and also Eton, Winchester, and Westminster. FOEM OF CHAEITABLE GIFT, 151 tion itself of the charity, as directed by the decree of the Court of Chancery, comes to be considered {a}. For Effect of the present purpose, viz., the extent or nature of the ^^^ ^***"*«- Jurisdiction of the Court over charities, it will suf&ce to observe that the effect of this statute is to strike out of the category oi good charitable gifts, otherwise falling within the jurisdiction now under consideration, a good half (I think it may safely be said a majority) of the testamentary dispositions for public or chari- table purposes, which are by any persons attempted to be made : and further to make it necessary in almost every instance of a charitable gift by wiU, to administer tinder the protection of the Court. For nearly every testator who bequeaths to a charity, has at least some money on mortgage, or perhaps some leasehold, if he has not any freehold, estate ; and if so, questions must invariably arise as to the extent to which the charitable gift wiU fail, and who is to benefit by its failure, which cannot be safely decided by the trustee or executor on his own individual responsibility. The object of the charitable or public gift, how- General re- ever, being such as I have described, and within the g^'cha-" purview of the Statute of Elizabeth, and not within "^^^'^ the prohibition of any other Act, — and its form and subject matter being such as to escape the meshes of the so-called Mortmain Act of Geo. II., — the gift is one which, if the trust be affixed to it with suffi- cient clearness and precision, will be enforced and administered by the Court of Chancery. (a) See post, Book II. Chap. I. s. 2, p. 185. 152 THE ADMINISTRATION OF TRUSTS. Gift must This, then, being so, the next point to be noticed is, ly made; that there must be a clear and sufficient gift within the jurisdiction in question. In other words, what is further necessary, and, indeed, all that is further necessary, besides what has been already mentioned, to the establishment and enforcement of any gift, grant, or bequest, by the Court of Chancery, as a charitable gift, grant, or bequest, is that the donor should clearly and definitely express an intention to dedicate the subject matter of his gift to general public piuposes, or, in legal phrase, to charity ; — not to any specific! chari- table purpose, for that is not essential, but to charity but may be or public purposes generally {a). It matters not what ; for, if there is a failure or uncertainty in particulars, the law will, as we shall see presently, take abundant care that the general good intention shall not be disappointed; but some intention of charity the gift must sufficiently express, and an intention not illegal ; and then the Court has jurisdiction, and wiU admi- nister and enforce the gift, as far as it is not in, contradiction of the so-csCUed Mortmain Act of Geo. II. (6). Now, in laying down the position that there must be an intention expressed to devote to charity gene- rally, and that this and nothing more is needed to make a good charitable gift, which Chancery will uphold and enforce, we are laying down what, in fact, {a) By Lord Eldon in Moggridge v. Thaokwell, 7 Vesey, 69 ; Mills ». Fanner, 1 Mer. 65 ; Sir W. Grant in Morice v. Bishop of Durham, 9 Vesey, 406 ; HiU on Trustees, 98 ; 2 Spence, 246, 247 ; 1 Jarm. Wills, 223, 3rd ed. (j) 9 Qeo. 11. 0. 36, GENERAL GIFT SUFFICIENT. 153 involves two very important distinctions between the jurisdiction in the matter of charities, and the juris- diction ordinarily exercised by the Court over gifts to or trusts for individuals. For we have implied — 1st, i. Eule with respect to charitable gifts, that the ordinary rule pf™*er'' against perpetuities established in other cases does not, ™appli«a- in fact, apply at all. For a gift to charity, which we charity have seen is per se good, without more, must, from its very nature, be perpetual (a). Sndly, and this is a 2. A gene- more important difference still : what we have said, s„ffi^enUn implies that in the case of charitable gifts, unlike that charitable of gifts to individuals, the jurisdiction does not fail by reason of want of certainty in the definition of the particular object of the gift or trust ; but if only there be a sufficient expression of intention to devote the subject of the gift to charity generally, the Court of Chancery has, or at least assumes, jurisdiction, and enforces the trust (6) ; or, as the same doctrine is some- times otherwise expressed, there is no resulting trust for the heir or next of kin, in the case of charitable gifts, for want of a sufficient declaration of trust in favour of the charity (c). Of these two distinctions, the latter, as I have already intimated, is the more important, and gives rise to the more extensive practical consequences. The first point, indeed, — viz., that the rule against Perpetui- perpetuities does not hold in the case of a charitable '^°' (a) See 1 Spence, 588, and cases cited n. (a). (fi) See cases cited in the last note but two, and 1 Jarm. Wills, 223-i, 3rd ed. '' (c) Hill on TniBtees, 98 ; ?. Spence, 2^6-7, 154 THE ADMINISTEATION OF TETTSTS. General gift neces- sary and Buffisient. Intention must be dear. gift or trust, — ^in fact explains itself, and requires no further comment. But, on the second point, I cannot do better than cite the enunciation of the doctrine in question by Lord Eldon, in the case of Moggridge v. Thackwell{a), which is in the following words : — " If a testator has manifested a general intention to give to charity, the failure of the particular mode in which the charity is to be effectuated will not destroy the charity; but if the substantial intention is charity, the law wiU sub- stitute another mode of devoting the property to charitable purposes, though the formal intention as to the mode cannot be accomplished." This, it will be perceived, is an express statement of the doctrine, that in charitable gifts a general intention to devote to charity is sufficient, without an expression of any particular or specific object. And that state- ment will be found, on examination, to involve more than one point of practical interest and importance in the law regulating the Chancery jurisdiction over charitable trusts. First, then, it lays down that there must, on the one hand, be a sufficiently clear expression of the general intention (an " intention to give to charity," a " sub- stantial intention" of charity, are the words used); otherwise the gift is wholly mid; and so far the case is agreed with the general Law of Trusts. For, as in all other cases, so here, there must be a sufficient expression of the intention to give, and that for a certain (though in charity it may be a general) purpose; (a) 7Y«8ey,.69. FAILirRE OF CHAEITABLE GIFT. 155 otherwise the gift fails, and the donor, his heir, or next otherwise of kin, takes as in default of disposition. And anj^^g^** instance of this sort of total failure of charitable gifts, and one which may be selected from numerous others of the same character, is that already above men- tioned, where there was a gift totidem verbis " to pur- poses of benevolence and liberality ; " and the ex- pression being held too vague to show an intention to devote to charity, the gift was held to faU, and the next of kin were held entitled (a). Numerous other instances are to be found in the books of failure of charitable gifts from the like cause ; viz., an omis- sion on the part of the donor or testator to express with sufficient definiteness a general intention to devote to charity {b). But when the expression is too vague, as I have said, the gift wholly fails ; and and intes- the heir or next of kin of the testator takes (if the attempted gift is by will) as in an intestacy (a). But the most frequent case of total failure of a GKftavoid- charitable gift, is where the form of the gift contravenes ^ ^ °^' (a) Morice ». Bishop of Durham, hy Sir W. Grant, 9 Vesey, 405 ; and see infra, 156, n. (5). (i) This point, it may be observed, was much discussed in the very recent case of Whicker v. Hume, in the House of Lords, 7 H. of L. Cases, 1 24, where the expression used was for the advancement of "education and learning all over the world ; " and while it was admitted, and of course could not be denied, that a gift for education only would have been a good charitable gift, it was contended that "learning," especially learning all over the world, was too vague, and made the whole bad ; and Morice v. Bishop of Durham was referred to ; and also a case of Williams v. Kershaw, 5 CI. & F. Ill, n., and other cases, in which gifts for "benevolent" purposes, or even "benevolent" coupled with " charitable and religious" purposes, were held bad. However, in the present case, as might have been anticipated, the House upheld the beijuest. 156 THE ADMINISTRATION OF TEUSTS. main Act, the regulations of the Mortmain Act, 9 Geo. II, c. 36. c. 36, akeady stated ; and the effect of which is that the attempted gift is wholly void ah initio, and is in fact as if it had never been. And the consequence is (in the case of a will), that the heir or next of kin take, as in the case of an intestacy {a). Substantial But further, it will have been observed in the passage neeessai^ cited above from Lord Eldon's judgment in Moggridge t" ^'"-f ^' ^^"'^^'"fi^^j that it is sufficient in charity cases, if a general intention to give to charity is expressed, though no object in particular is specified. If " the substantial intention is charity," Lord Eldon says, " the law will interfere, even though the particular intention of the testator cannot be accomplished." Distinction Here we first leave the ordinary rule in cases of na^rule." ^Tusts generally, i.e., private trusts. There, if the donor or testator does not specify some definite object of his trust, though he does sufficiently express that he means it to he a trust, (or that the party to take is to take as a trustee and not beneficially), the result is that the beneficial interest reverts to the donor, or to his heirs or next of kin, as the' case is ; or, in other words, there is a resulting trust for the donor, his heii-s, or next of kin (J). General But in charity it is not so. There, if the general faitention^ intention of charity is clear, the absence of any direc- how m- ^ion as to who is to be its particular object, will not (a) Att.-Gen. v. 'Weymontli, Amb. 20; Jones v. Mitchell, 1 S. & St. 294 ; Hill, Trustees, 106 ; and also, as to the effect of the Act, Philpotts i). St. George's Hospital, 6 H. of L. Ca. 346 ; and see also Sir W. Grant's judgment, and argument of counsel in Gary v, Abbott, 7 Veaey, 494, (6) HUl, Trustees. 72, 51, GENERAL GIFT TO CHARITY ENFORCED. 157 entitle the heir or next of kin, but the law will step in, and upholding the gift, will itself undertake to point out proper objects and a proper mode of application. Nay, even if the testator or donor has named objects of his charity, but they are impossible or illegal ones, the law will not suifer the gift to fail, but will apply it rather to objects and purposes not named by the donor at all, or even inconsistent with his de^ clared (but impossible or illegal) intentions (a). This doctrine has been somewhat whimsically, but pointedly, expressed by Sir W. Grant, in the case, already mentioned, of Gary v. Ahhott (h), in which His Honour held that a gift for educating in the Boman Catholic religion (then prohibited) was not wholly void, but was a good charitable gift as a gift for education, and must therefore be upheld, and go to the disposal of the Crown by sign manual. " Accord- ing to the authorities," said Sir W. Grant, " whenever a testator is disposed to be charitable in Ms own way, and upon his own principles, we are not to content ourselves with disappointing his intention, if disap- proved by us ; but we are to make him charitable in our way, and upon our principles. If once we discover in him any charitabk intention, that is supposed to be so liberal as to take in objects, not only not within his intention, but whoUy adverse to it. It is' not for me to attempt to overturn the settled law and practice ; according to which charitable bequests void as to one object may be appropriated to another." So anxious is the law that that most vague of aU good feelings — a, (a) See post, p. 159 n. (a) (6), (5) 7 Vesey, 499. 158 THE ADMINISTEATION OF TEUSTS. general charitable intention — shall not be allowed to fail for want of a particular object. A gift to charity generally, in a word, is good, and will be enforced, though of particular objects there are none specified. Specific ob- But here the question arises, how is it to be enforced, pointed'"' and to what object it is to be applied, where there are, °°*- as we will suppose, either no objects named at all, or only impracticable or illegal ones. And herein we arrive at another distinction, a distinction, viz., be- 1. By sign tween the cases in which the Crown by sign manual directs how the property shaU be applied, and the cases in which the Court of Chancery itself assumes the disposition of it. For the mixed nature of the jurisdiction, derived partly, as it is said, from the ordinary jurisdiction of the Court over trusts, and partly from the prerogative jurisdiction imparted to the Chancellor by the Crown as parens pairice, and guardian of aU public gifts, has already been referred to {a). And these different elements of the jurisdiction seem to manifest themselves practically at the point now before us. 2. By For where there is, besides the general charity-gift, scheme in . , , , ■, p ■^ ■, chancery, which IS necessary to prevent a total lailure, and to found the interference of the Court, a tntst, on which the Court may fasten, though there be an absence or failure of legitimate objects of such trust, there the Court continues to take full cognisance of the matter, and, in fact, executes the trust, by itself finding some legitimate objects as nearly similar as it can devise to those originally contemplated, or supposed to be con- (a) See above, p. 144. APPLICATION BY THE CEOWN. 159 templated, by the donor («). And this is what is called executing the trust cypres. But if there is no trust at all expressed, then the Court has no jurisdiction to proceed in that way and apply the property, but can only act as the agent or minister of the Crown ; and it refers the matter to the agent for the Crown to dispose of the property by sign manual, to such charitable purposes as it may see fit (6). The distinction between 'the cases in which the Court itself applies the property cyprh, and those in which the Crown directs the application by sign manual, has also been stated clearly by Lord Eldon in Moggridge V. Thackwell (c), as follows : — " Where there is a general indefinite purpose, not fixing itself on any object, the disposition is in the King by sign manual ; but where the execution is to be in a trustee, with general or some objects pointed out, there the Court of Chancery will take the administration of the trust." Thus we have in the case of gifts to charity generally, without specific objects, two separate modes of application, — 1. By sign manual of the Crown ; 2. By a scheme in Chancery. Take then the first of these two cases. First : Where l. Sign a general charitable gift can be discovered, but there is """""* " nothing more in the case — no donee or trustee even named at all, much less a trust declared — there the gift does not fail, but the case stiU does not come (o) See Moggridge v. Thackwell, 7 Vesey, 86; IEUb v. Parmer, 1 Iter. 55. (5) Att.-Gen. v. Mathews, 2 Lev. 167 ; Moggridge v. Thackwell, itM iwpra ; Mills v. Farmer, vM tupra. (c) 7 Tesey, 86. 160 THE ADMINISTEATION OF TEUSTS. "within the category of those gifts which the Court can fasten upon and execute ; it is upheld, but the Cro-wij by sign manual, by virtue of its prerogative as parens patricB, specifies the particular purpose to which the gift is to be applied. Instances. An old instance of this sort of gift is that in Attorney- General V. Mathews [a), where the gift was simply "for the good of poor people for ever," which, being held good as a general gift, but not to be administered by the Court, but to be at the disposal of the Crown by sign manual, it was applied for the benefit of Chrisfs Hos^ pital or the Blue Coat School in London. But the instance of this sort of gift most commonly known is that of a gift to such charities as the donor may name, and he names none. Here the gift does not result to the donor, or his heir, or next of kin, as it would in the case of a private trust ; neither, again, does it fall within the class of charitable trusts which Chancery ,can administer ; but the disposition is the prerogative of the Crown. This doctrine is laid down and much discussed by Lord Eldon in the case of Mills v. Far- mer (6), where, besides Moggridge v. Thackwell already cited, the instances just mentioned, and the previous cases generally, are referred to and considered. 2. Scheme But, 2ndly, where the gift is to a specified donee, in chan- ... , , . „ eery, m trust or otherwise, for purposes of charity, either '*■'"' ' general or particular, there the Court of Chancery will enforce it, and not the Crown ; and not only so, but even if a declaration of the trust is incomplete or (a) 2 Lev. 167. (i) 1 Mer, 55. OTPEES APPLICATION. 161 absent, the Court ■will nevertheless still enforce the gift and administer the fund by a scheme, supplying trusts, or even objects, so as to enable the application of it to a charity resembling, as nearly as possible, that in the testator's contemplation, and will not aUow the property to lapse to the heir or next of kin (a). Let me, then^ sum this up. In charitable gifts the Hill : Trus- ° tees, 98 ; doctrine of resulting trusts does not apply ; but the mpra, p. conditions are these : — 1. If a wholly void charitable gift be made or l- Total attempted (as if the purpose be not charitable at all charitable within the Act of Elizabeth, or if land be given by ^ Will to purposes of charity, so as to be void by statute 9 Geo. 2, c. 36) there the charity altogether fails, and the property reverts to the donor or his heir, as in the case of an ordinary void gift to private individuals (6). 2. If a gift be made to charity generally, and no trust 2. Failure is created for it, or donee named, there, the Court of trust. Chancery, finding no foimdation for its ordinary trust jurisdiction, leaves the property to be disposed of for charitable purposes, by the Crown by sign inantial, as in Gary v. Abbott (c), and in the cases cited in Mills v. Farmer {d). 8. If a gift is made td charity generally, and a trust 3. Failure M created or implied, or a donee is named, then, trustf°^° whether such trust is or is not completely or suffi- (a) Mills V. Farmer, 1 Mer. 55, already mentiosed, is the leading decision and authority on this subject. (6) De Themmines v. De Bonneval, 5 Russ. 288 ; West Vi Shuttleworth, 2 M. & K. 684 ; Att.-Gen, v. Weymouth, Ambl. 20 ; Jones v. Mitchell, I S. ft St. 294. (e) 7 Vesey, 490. (d) 1 Mer. 55. 163 THE ADMINISTRATION OF TBUSTS. ciently declared, the Court of Chancery lays hold of the gift, and administers it by a scheme, supplying by its own authority any defects in the directions of the donor, and applying the property as nearly as possible in the manner the donor appears -to have intended (a) . And this last position it is, which is, as I have said, the foundation of the doctrine called the cyprls doc- trine ; to the effect, that in a case such as has been just above described, viz., where there is ground for the trust jurisdiction by reason of there being a gift to a trustee or otherwise, but the trust is not completely or effectually declared, there the Court, as to any part of the property as to which the trusts are want- ing, will in its scheme supply them cypres, or as nearly as" the law wiU permit, in the same form as those which the donor or testator would seem to have intended. Instances of A remarkable instance of the latitude exercised in cation rf *^^ application of this doctrine is found in the case of the cy'prh Attorney- General v. Ironmongers' Company (b), where the Ironmongers' Company held a testator's residuary per- sonal estate in trust, to apply one-half of the income thereof to the redemption of British slaves in Turkey and Barhary; and there being, for many years, no such slaves. Lord Cottenham found a cypres purpose in the (o) Att.-Gen. v. Boulttee, 2 Vesey, jnn. 379; Att.-Gen. v. Whitchurch, 3 Vesey, Ul ; Att.-Gen. o. Coopers' Co., 19 Vesey, 187; Att.-Gen. ». Ironmongers' Co., 2 My. & K. 576, C. & P. 208 ; Hill, Trustees, 472 Mt.-Geu. V. Craven, 21 B. 400. (6) Cr. & Ph. 208 CHARITABLE TRUSTS* VISITOR. 163 maintenance of charity schools in England and Wales, in connection with the Church of England, on the ground that the testator had directed part of the remaining moiety of his estate to be applied in the support of charity schools, of the above religious character, in the City of London and its suburbs. But a more apt illustration of the ordinary application of the rule willbe iouudimAttomey-QeneralY. Craven {a), where a gift to maintain a pest house for poor patients from certain London parishes suffering under the Oriental plague, (a disease which had not appeared in London at all, after the foundation of the charity in 1687), was considered to be properly applicable in erecting and maintaining a hospital for the reception of persons who might be infected with the plague, if that event should ever arise; and in the meantime for persons affected with any other infectious or contagious, disorder. And other instances of the application of the rule will be found cited in the arguments of counsel for the Attorney- General in the case just mentioned (6). We have now arrived, then, at a point where we see full and complete jurisdiction assumed and exercised by the Court of Chancery in establishing and adminis- tering gifts to public charity. There is, however, still one important deduction to visitor. be noticed from the exercise by the Court of this jurisdiction, before I pass on to consider the adminis- trative procedure itseK. I refer to the failure, — I (a) 21 B. 392, (J) 21 B. 398, 399. u 2 164 THE ADMINISTEATION OP TEtJSTS. should, perhaps, rather say the partial failure, of the jurisdiction, where there is a legally constituted visitor^ The found- Mr. Lewin, in his work upon Trusts (a), states the law Sk^or on this subject to be, that " where a ehariti/ is estab- appoiiitees, ^^(^ jy charter, a visitatorial jurisdiction arises of meorpo- common right to the founder — ^whether the Crown, or rities, a private person and his heirs, — or to those whom the founder has substituted in the place of himself and his heirs." And to the above extent, viz., that wherever there is a charter^ there a visitor exists, in the person of the founder, his heirs, or appointees, the law may be considered, I suppose, to be undoubted. So also, of course, a visitor may be well named by Act of Parliament, where that is the instrument of founda- tion. And wherever there is an incorporatien, there is also a visitor ; for, if none be named, the heir of the founder, whether the Crown or a private person, will be visitor. Visitor, But where there is a charity founded simply by deed ■where no . . inoorpora- or w»f^— rwhether m such case there can be a visitor legally constituted, seems a point open to some doubt. C. J. Holt, indeed, in the celebrated case of Philips v. jBMry (&),^-in which the deprivation by Hxe visitor of the Kector of Exeter College, Oxford, was upheld as not admitting of review by the Court of King's Bench, — says, that " where those that receive the charity are not incorporated, but there are certain trmtees who dis- pose of the charity," there is no visitor, because the poor (who are to benefit) " are subject to the orders and direc- (a) Lewin on Trusts, 4th ed. 365. (b) 1 Lord Baymond, 5 ; 2 Term. £. 346, 353. VISITOB, HOW CONSTITUTED. 165 tions of the trustees. But where they who are to enjoy the benefit of the charity are incorporated, there, to prevent all perverting of the charity, or to compose differences among them, there is hy law a visitatorial power; " and a visitor, he concludes further on, "is of necessity created by the law." Thus laying down, that where there are trustees, there no visitor is needed, and therefore that the law does not imply one, but not expressly stating that none can be named. On the other hand, we have some express cases of foundations by deed or will, in which the heirs of the founder were treated as patrons and visitors of the cha- rity (these terms being synonymous, according to C. J. Holt himself, in the same judgment which I have already cited) : " Patronage and visitation," is his expression, "are necessary consequents one upon the other" (as). Thus we have, ex. gr., the case of a foundation by deed, a rent-charge granted to establish a charity, in Attorney- General ST. Riglyifi); and in that case, no visitor having been named, the right of patronage and visita- tion was held to reside in the heirs of the fovmder. And the like decision in the case of a will is to be found in the case of Attorney-General v. Gaunt (c). And in Jeremy's " Equity Jurisdiction " {d), the right of nomi- nating a visitor is stated on the authority of the abov6 and other cases as one generally incident to the foundation of a charity, by whatever instrument it is (o) 2 T. tt. 352. (J) 3 P. Wms. 146. \c) 3 Swanst. 148, n. (fL). Jeiem/s E^. Juiisdict, %Zi, 166 THE ADMmiSTEATION OF TEUSTS. fotinded. But however this may be, as a matter of strict right, in practice it does not often come in ques- tion whether there is or not in any particular case a legally constituted visitor ; for in all cases of charter or incorporation, the existence of the visitatorial office is beyond question ; and in other cases the point will have been generally precluded by the usage or practice in the particular case. Jurisdio- Assuming, however, in any given case, that we have tor ' a visitor, the next question is to determine his authority and jurisdiction, and what are its relations to the jurisdiction of the Court. Now the visitatorial juris- diction may be generally defined to be one for enforcing the constitution and laws of the charity, as between the members themselves, as such constitution and laws are to be found in the instrument of founda- tion, or other governing instrument of the charity. It is a jurisdiction, in short, confined — to use a familiar legal phrase — within the four comers of the instrument of foundation. As Mr. Lewin expresses it (a),—" It is a jurisdiction to hgar and determine all differences of the members of the society founded among themselves, and generally to superintend the internal management of the body, and to see that all niles and orders of the corporation are enforced." And such being the limits of the visitor's 'province, within those limits the visitor is absolute, and without appeal; and his sentence is not capable either of reversal or review by the Courts either of law or (a) Lewin, Tmst^ 4th ed. 365. JURISDICTION OF VISITOE. 167 equity. This has been repeatedly decided in many cases, both ancient and modern, — the leading one of which is Phillips v. Bury {a), already cited, in which the Eector of Exeter College in the University of Oxford having been deprived by the visitor for con- tumacy in refusing to appear at his visitation, it was held that the Court of King's Bench had no power to review the judgment on the merits (6). For, so long as the visitor keeps within his limits, Jurisdie- the Courts have, in fact, no jurisdiction. The founder ^igitor ex- has appointed, as it is said, his ow» domestic forum : '^^'^^' and there must all questions be tried, relative to the IvmUa, that of the internal management of his foundation, and the en- Courts of forcement, as between those who are the subjects of it. Equity! of the laws and statutes which he may have appointed for their governance. But though to this extent the jurisdiction of the Beyond Court of Chancery is excluded as regards charities umits, the which have visitors, yet it must not be supposed, of q^^„ ° course, that such charities are exempt altogether from gi'^^^ ^^- the jurisdiction of the Court, to establish, to enforce, and to administer, and in particular to redress abuses. For the visitor's jurisdiction is only, as I have said, an internal one. If the corporation, or the trustees or other parties administfering the charity, or the visitor himself, (o) 1 Lord Raymond, 5. (5) To the same effect in modem times are the decisions in the Berkhamp- stead School Case, 2 V. & B. 134 ; Att.-Gen. v. Magdalen College, Oxford, 10 Beav. 401 ; Att.-Gen. o. Dedham School, 23 B. 350 ; and Att.-Cten. o. Lord Glarendon, 17 Vesey, 491, relating to Harrow School. X68 THE ADMINISTRATION OF TRUSTS. exceed the limits of their own jurisdiction respectively, — a jurisdiction bounded, as I haye said, by the constituf tive or governing instrument of the charity, — its chaxtetj Act of Parliament, or other instrument of foundation,T-f- they become immediately guilty of a breach of trust : it is no longer a question of internal regulation, but a question of trust, between trustee and cestui que trust, to be determined in Chancery {a)-. Misapplioa- Now, one large class of instances of the excess of revemfea ^^^ scope and conditions of the instrument of founda? gives juris- ^ion, is to be found, of course, in any misapplication of diction to Chancery, the revenues or property of the charity. In such a case, it is no question, or at least not only a question, between the members themselves, whether their rules have been followed or not; but it is a question between the whole body on the one side, and the public on the other, whether the very purposes for which the founda- tion was made and allowed h^'V^e not been abused or defeated. The public purposes for which the money or land was given to the charity are, if the com- plainants are right, left unfulfilled; they are abusing a great public trust, and are eonsequently accountable in Chancery (J). (a) See the cases cited in tlie next two notes. (b) On this ground the interference of the Court was justified in the cases aU:^y cited, of the BerkJ^ampstead S^ool Oase, 2 T. & B. ; Att,r Cren. V. Olarendon, in the Harrow School Case, 1/ Yes. 491 ; and the Sedham School Case, 23 B. 351 ; and also, hesides those decisions, in the ease of the Sherborne School, 18 B. 256, in which the limits that separate the intern^ jurisdiption of the vi^itar 9d4 the jurisdiction of the Court are Trell illustrated ; and see other cases cited in Jiewig, 4th ed- 367, n. (/), {g), (h), (i), in ^1 which casep there ha4 l>e^ 4 misapplieatiQn ^f the revenues of the charity. LIMITS OF -VISITOES JUBISDICTION. 169 Any abuse or departure from the trusts or purposes declared by the instrument of foundation, is, in a word, an excess of the powers conferred thereby, and is sufificient to give the Court jurisdiction {a). And wherever, in short, and by whatever means, the rela- tion of trustee and cestui que trust can be shown to subsist between the charity on the one hand, and the public or any individual on the other, there the Court has jurisdiction, whether the visitor may also have jurisdiction or not (6). On the other hand, the jurisdiction of the visitor Elections, comprehends all questions as to the due election and thevisitor's appointment of officers, when that election is governed '"'S"'^"''^. by the internal rules of the charity, — as, for instance, all questions arising on the construction of the statutes of colleges in the Universities regulating the election of FeUowB ; instances of which (among others in the books) are to be found in the noted case before Lord Eldon(c) of the election of the President of Queen's College, Cambridge, and in Eif parte Ifoorsom {d), by (a) As in tlie late case of St. Cross Hospital, near Winchester, to rectify the abuses in the administration (or maladministration) -whereof the Coort held that it had undoubted jurisdiction, notwithstanding the unquestioned visitatorial power of the Bishop of Wii^chester. Atb-Gfen. v. St. Cross Hospital, 17 B. 435, 466. (&) Thus in the late case of the French Frotestanl^congregation in London, and their pastor, Dangars v. Kivaz, 28 Bear, 243, the pastor having been improperly removed, the Chancery jurisdiction was upkeld, notwithstand- ing that the Crown might have, and apparently had, jurisdiction also as visit(^, because the charity were trustees for the pastor of certain funds spedfically impressed with trustg 14 his ^To^r : 9(qd }te waa %.^1%'Sax^ restored by decree of the Court, (c) Jacob's K. 1, (d) 2 f h, S21. 170 THE ADMINISTRATION OF TEUSTS. Lord Cottenham, on the statutes of University College, Oxford ; the Lord Chancellor in each case representing the Crown, as visitor of the college, the same being of Eoyal foundation. The Court of Chancery has jurisdiction, in short, in all cases, whether there be a visitor or not, to enforce the fundamental or governing instrument of every charity, to restrain any departure from its real scope or intent, and to execute its trusts, and to ad- minister the property which is the subject of it ; but not to interfere in any of those questions — internal questions, as they are called — which the founder by that instrument has confided to the discretion and regulation of the body themselves, of governors, cor- porators, or trustees, and which they themselves must decide, subject to the control of their visitor. Beneficial I have thus endeavoured to trace, as far as the the juris- limits allotted to me have permitted, the leading prin- c£eerr ciples of the jurisdiction of the Court of Chancery over over chari- pubUc or, as they are called, charitable trusts ; — a juris- diction of which, now that its exercise is made cheap, speedy, and accessible, the benefit and importance to the community can hardly be overrated. It is, in fact, nothing less than a jurisdiction for enforcing the honest, legal, and speedy application of all property dedicated in any way to the general benefit of the community at large, or any considerable portion of it. With charity, indeed, in the popular sense of the word, ' — still less in that higheif sense in which the word is used in Sacred Writ, — ^this jurisdiction has, properly and directly, nothings at all to do. Philanthropy, no PEOCEDUEE IN CHAEITY CASES. 171 doubt, is in one sense its object; but joubiio spirit, rather than even philanthropy, is the virtue with whose acts it has to do, and which forms the foun- dation for its exercise. A gift may be of the most unquestionably charitable character, yet, if it be for a private purpose, — a gift for private charity, — the Court will have nothing to do with it. It must be public, — of general utility and benefit, — and then the Court will enforce it, whether it be strictly charitable or not. Almshouses for the poor, hospitals for the sick, education, even spiritual instruction,, for the ignorant and the outcast, — all these are within the jurisdiction ; but not because of the charity to the individual which may have prompted the gift, but because of the benefit resulting to the pubHc at large. And on this principle, it is, as is most obvious, — and on this alone, — that a Court of justice can have any right to say that such foundations as those just named shall be honestly, fairly, and equitably administered for the good of all persons, without restriction, who may in any way, or at any time, hope to profit by them, or come to stand in need of their assistance. Section 3. The form of Procedure in the Administration of Charities. Sir W. Blackstone [a), "after mentioning, in a passage Procedure already cited, the origin of thg jurisdiction over charities Jation?" in the prerogative of the Crown, as guardian of public (a) 8 Bl. Com. 427. 178 THE ADMINISTEATIOK OF TETTSTS. interests, proceeds to say with respect to the course of administration, "that, wherever it is necessary, the Attorney-Gsneral, at the relation of some informant (who is usually called ' the relator '), files ex officio an information in the Court of Chancery, to have the charity properly administered." Lord Eedesdale, again, in his celebrated " Treatise on Equity Pleading" {a), states that "suits on behalf of the Crown, and of those who claim its peculiar pro- tection" — amongst which, as has already appeared, are those interested in public charities — "are insti- tuted by officers to whom that duty is attributed. These are, in the case " (just mentioned), " the King's Attorney and Solicitor General; and, as these officers act merely officially, the bill they exhibit is by way not of petition or complaint, but of information to the Court of the rights which the Crown claims on behalf of itself and others, and of the invasion or detention of those rights for which the suit is instituted. If the suit does not immediately concern the rights of the Crown, its officers depend on the relation of some person whose name is inserted in the information, who is termed ' the relator; ' and as the suit is carried on under his direction, he is considered as answerable to the Court and to the parties, for the propriety of the suit, and the conduct of it. It sometimes happens th{(t the person has an interest in the matter in dispute, of the injury to which interest he has a right to com- plain. In this case his personal complaint being (oj) Fa£e 21, iih. «d. INFORMATION, IN CASE OP CHARITIES. 173 joined to, and incorporated with the information given to the Court by the officer of the Crown, they form together an informaii&n and Mil, and are so termed." Thus, in all cases of charitable or public trusts, the Nature of ancient and regular mode of proceeding was by in/or- *^e^l\j mation to the Court, in the name of the Attorney- J"^"™*- •' tion ; or by General, on the relation of any third person whatever, Informa- whether personally interested or not {a). The nature BiU. of the proceeding, in short, seems to have been desig- nated by that of the subject of it ; and as the benefit of the community was the essence of the trust, and the condition of its establishment, so it was understood to be in the interest of the community that it should be administered and enforced. As the object of the gift was a pubMc one, so it was in behalf of the public^ and by the officer of the public that the requisite proceeding must be taken for its proper application and distribution. And if individuals as such were also benefited, then, as Lord Redesdale lays down, the two modes of proceeding might be combined — and the statement made to the Court for redress is then, both an information and hill. An instance in which, not long since, this combina- Instance of tion occurred, and in which a somewhat remarkable tion and circumstance was that the proceeding failed in the one ■^^'• £^pect but was held good in the other, — ^being sup- ported as an information on behalf of the public, hut dismissed as a bill by the individuals,- — is to be found in the case oi Attorney-General y. Vivian, decided in 1836 (a) MitfoTd, 21. 174 THE ADMINISTEATION OP TRUSTS. Attorney- ^y Lord Gifford, Master of the Eolls la). In that ease General v. •' . Vivian. lands had been given by one John Burton, in the year 1503, to the parson and churchwardens of the ancient church and parish of St. Austen in the city of London, now no longer subsisting as a separate parish, upon, certain trusts (which afterwards became void under the Statute of Superstitious Uses) for the use of the parish church. In the great fire of London the church, with many others near it, was burnt ; and the parish was then united by Act of Parliament with the adjoining parish of St. Faith, St. Austen's church being rebuilt for the united parish ; but for all purposes of rating, the parishes remaining distinct. From that time tiU the year 1826, a period of 150 years, the two parishes contributed accordingly to the repair of the church in agreed proportions, the rents of Burton's charity being apphed in ease exclusively of the parishioners of St. Austen's. The information and bill were then filed — > an information by the Attorney- General, at the rela- tion of the Churchwardens of St. Faith — a bill by the Churchwardens of St. Faith, to have the rents of Burton's, charity applied generally in repair and sustentation of the church of the united parish, or, in other words, in aid as well of the portion of the burden previously borne by the St. Faith parishioners, as of that borne by those of St. Austen's. And Lord Gifford being of opinion that the claim failed, dismissed the bill with costs; "but," his lordship continued, "this record is an information as weU as a bill ; and the next question. {a) 1 Euss. 227. INFORMATION AND BILL. 175 is, What is to be done with the information ? Though Attomey- the bill has been dismissed, the Court, it is agreed, vi-rian. must act on the information, for though the relief prayed hy an information, he improper, yet the Court, if it sees that something ought to be done for the regulation of the charity, will take care that it be duly administered for the future. As to the information, says Lord Hard- wicke in Attorney -General t. Scott (a), that is not to be dismissed, whether what is prayed is properly prayed or not ; for though the particular relief is wrong, the information by the Attorney -General is not to be dismissed, if the charity wants any direction." And, after stating it to be " now settled," that " it is not necessary for the relators to have any interest in the subject of the suit," and, consequently, that the failure of the title of the relators in the information, as plain- tiffs in the bill to the particular relief sought, was immaterial as regarded the information, his lordship proceeded — " This being so, the present suit, though dismissed as a bill, remains as an information, and the question is. Does it disclose ground for the interference of the Court ? " And after noticing that hitherto therfe had not been a direct application of the whole of the revenues arising from Burton's devise to the repairs of the church, but that there had been a surplus applied by the churchwardens in aid of the parish rates (poor- rates and others), his lordship concluded by directing a scheme for varying the application of this surplus. It will be observed, then, in this case, which illus- trates, perhaps, as well as any, the peculiar character (a) 1 Yes. sen. 418. 176 THE ADMINISTIL&TION OF TETTSTS. and principles of the procedure by information and bill, that we have — 1. The principle recognised that a general purpose of charity is sufficient for the Court to act upon, and is enough, in a word, to found the jurisdiction, though- any particular purpose may have failed (a). 2. That acting on this principle, an information actually seeking, in mistake, to enforce a particular purpose which cannot be supported, wUl nevertheless be good ; and a scheme will be directed in it, though a bill on this footing can only be dismissed with costs (&). Procedure Up to the year 1812, a I'egular suit, by information under Sir 8^d answer duly replied to, and evidence taken, was S-KomiUy's ^^ ^^jy procedure by which any charity, however small, could be directly administered, or any abuses in its management set right, through the medium of the Court of Chancery. But in that year the statute 52 Geo. III., c. 101, usUaUy known as Sir Sam. Eomilly's Act, introduced, in certain cases, a simpler process. For this statute among other things enacts that " in every case of the breach of a trust created for cha- ritable purposes, or, whenever the order or direction of a Court of Equity shall be deemed necessary for the administration of any trust for charitable purposes, it shall be lawful for any two or more persons to petition (o) See cmte, s. 1 of this chapter, and Moggridge' ■». Thack*iBll, 7 Vesey, 69 ; Mills v. Farmer, 1 Mer. 55 ; Hill, Trustees, 98 ; 2 Jarm. Wills, 223, 3rd ed. (6) Att.-Gfen. ■■ person entitled conveys the legal interest only — leaving the equitable still in (and there- fore resulting to) himself, as undisposed of; and 2, where a purchaser takes a conveyance in the name of a third person, intending the bene- ficial interest to ielong to himself. And comtruclim trusts Mr. Lewin defines, p. 139, as those "raised by a Court of Equity, wherein a person clothed with a fiduciary character, gains some personal advantage by availing himself of his situation as trustee ; " in which case he is held to be a trustee also of the interest or benefit thus acquired. It is merely a TRUSTS BY OPERATION OF LAW. 205 trusts raised by operation of law, but constructive ti-usts, being those raised wholly by this implication, while resulting trusts are simply the consequence of the failure of sufficient ground to raise, or completely to raise, the implication in question, so that the beneficial interest in fact reverts to, or remains in, the original donor. But on reference to the instances which the modern Modem decisions comprise under one or other of these oonsSuo-"^ two heads, we shall find, I think, a breadth and com- ti^« t^ust, much ex- prehensiveness as well as an extension of detail, intended, the modern law of the Court, which Lord Hard- wicke's words by no means indicate as charac- terising the doctiines of his own day. In illustra- tion of this I will refer first to an early instance of this administration, and then state the modern rule on the subject. In the old case of Gaseoigne v. Thwing (a), which pre- sents a curious instance of the administration before us in the times of the later Stuarts (the decision being dated in 1685), a Sir Thomas Gaseoigne had purchased what is called in the report a " great manor-house " with some acres of land in Yorkshire, and he had taken the matter of form, perhaps, in wHcli way the diTision is taken ; but the 2nd class of what Mr. Lewin calls resulHmy trusts, appear actually to be rather eomtructivethsinresulting — the latter term beingstrictlyappropriateto those cases only where the construction of law has the effect of irmging lack to an original grantor of the estate, as undisposed of by him, something which he has omitted fully to pass ; while the term constructive may then be &,irly enough applied to all other trusts by operation of law: and this is the division adopted in the text. (a) 1 Vem. 366. V. Thwing. 206 THE ADMINISTEATION OF TRUSTS. conveyance in the name of one Vavasour, under whom Thwing, the defendant, claimed, and the plaintiff's (Gas- coigne's) allegation was that the estate was bought with his money, a,nd was intended to be held by Vavasour upon trust, that one Elizabeth Thwing deceased, should enjoy it for her life, and then that it should go to the plaintiff and his heirs ; and the bill prayed an execu- tion of this trust, and a conveyance accordingly. The defendant, on the other hand, claimed the estate as his own by virtue of the conveyance, and objected that the Statute of Frauds rendered any proof of the trust inadmissible, the same not being declared in writing. This last point was overruled, and the principle of con- structive trust thus recognised, though the Master of the Holls dismissed the bill, on the ground of the insuffi- ciency of the evidence of the trust, saying that there was some secret in the case which he did not fully apprehend (a). The case proceeds, it will be seen, on the ground that Gascoigne, if it had really been his money which had been paid for the estate, and no one else's, would have been undoubtedly entitled to the estate, by con- struction of law, according to the now well established doctrine ; but the trust or purpose actually intended was one inconsistent with Gascoigne's ownership ; but being itself illegal it could not be disclosed (b), and so (a) As to this last suggestion, it may be added that the reporter states in explanation, " Now the troth iras that the great honse was bought for a nwmiery, and the said Elizabeth Thwing was to be the Lady Abbess, and the project failing, the defendant set up for himself." The secret trust for the nunnery failed of course on the ground of its being illegal. (i) See last note. CONSTETJCTIVE TEUSTS. 207 both trusts failed. Yet at the present time, the result, I conceive, would hardly have been that the defendant (who was clearly a trustee for some one, and had no shadow of interest of his own), would have been allowed to keep the estate, or as the reporter phrases it, " to set up for himself." But the case clearly recognises, and indeed is one of General the first which establishes, the doctrine that an estate cmstruo- bought by A. and at his desire conveyed to B., is held *'™ *'""=* "'in favour by the latter as trustee for the former, on an implied or of the party- constructive trust, notwithstanding the requirements of the eetate! the Statute of Frauds that trusts should be declared in writiag (a). This doctrine has now become established law (a), the only exception to it being where the convey- ance is taken in the name of a child, in which case it is presumed that the transaction was intended to be for the child's own benefit, by way of provision for him (6). However, if we look into the modern decisions, we find the principle on which the trusteeship in such cases as Gascoigne v. Thtoing, proceeds, expanded into a broad and comprehensive rule, admitting of constant and unfailing application. For the modern doctrine may be stated, I think, without inaccuracy, in the most (a) Sir John Peachey's ease, Rolls, 1759, 1 Lead. Cases in Eqnity, 147 ; Ex parte Houghton, 17 Veaey, 253 ; Bider v. Kidder, 10 Yesey, 367 ; Dyer v. Dyer, 1 Lead. Cases in Equity, 138 (a. o. 2 Cox, 92), and other authorities in Lead. Cases in Equity, ubi lupra, and Lewin, Chap. ix. s. 2, 4th ed. (5) Dyer V. Dyer, vM swpra; Lewin, uli swpra, and see p. 131. The ex- ception also extends to all cases where the purchaser stands in hco parentis to the person whose name is used, Lewin, 138; and also, "perhaps," to the relation of husband and wife. Bider v. Eidder, 10 Vesey, 367; Lewin, 138. 208 THE ADMINISTRATION OF TBUSTS. unqualified form, to this effect, viz., that if trust pro- perty, by whatever means, get into the hands of a third person (not being a child of a sole beneficiary (a) ), -with knowledge or notice of the trust, — or if such person be a volunteer, i.e., if he pay nothing, then, whether he have notice or no, — such person is by construction of law a trustee of the property, upon the same trusts and for the same persons, as the person was from whom he may have taken (6). Uluatra- ^ plain illustration of the general rule is to be found tiong of the in the recent case of Trench v. Harrison (c), in which Lord rule. Cranworth, V.-C, held that where trustees of a marriage settlement with power to invest in land, empowered the husband to purchase an estate with part of the trust fund, and gave him part of the trust fund for the pur- pose, the estate afterwards purchased by him, though not purchased in accordance with the power, was never- theless bound by the settlement. And a further and still more recent decision is that in Bird v. A&hey (d), by the present Master of the Rolls, where a trustee, in breach of his duty, lent one of his cestuis que trust a part of the funds, in order that he (the cestui que trust) might purchase an estate; and it was held that the money might be followed into the land actually pur- chased, and that land was accordingly held bound in the hands of the purchaser by the original trust, and answerable to those interested under it. (a) See last note. (5) 2 Spence, 194 ; Iiewin, Chaps, ix. and x. 4th ed. (c) 17 Sim. Ill, {d) 24 B. 618 ; and see Walker v. Taylor, 4 L. T. N. S. 845, H. L. CONSTEUCTIVE TRUSTS. 209 Indeed, as against purchasers of trust property for Doctrine of value, this principle has been pushed, perhaps, to the tive notice. very verge of justice ; for it is held, that not only actual notice or knowledge of the trust wiU bind such a purchaser, but also that constructive notice is sufficient. It is held, that is to say, that if the circumstances of the case were enough to put him, as the phrase is, on inquiry, and if, so inquiryig, he would have found out the trust, then he must, by a Court of Equity, be taken to have actually known of the trust in all its circum- stances and details, and he is held as much bound by it as if it had been fuUy communicated to him before he bought. But into the wide and intricate question of constructive notice, it would be foreign to the present subject to enter; and I would only refer the reader upon it to the admirable and comprehensive summary of the doctrine contained in Vice-Chancellor Wigram's judgment in Jones v. Smith (a), and to the further de- cisions collected by Lord St. Leonards in his work on Vendors and Purchasers (b) ; not failing, however, to notice also the converse rule which obtains in favour of the purchaser, if he be, that is, bond fide a purchaser Purchaser for v&lu.6 for value, to the effect that if such a purchaser is without mthout notice of the trust, a Court of Equity will never interfere t°^°^'by* to enforce such a trust against him, and that it lies on the trust, the claimant in such a case to prove and establish the trust (c). (a) 1 Ha. 43, pp. 55 et seq. (6) 13th ed. 632. (c) The leading case on this rule is Basset v. Nosworthy, by Lord Not- tiagham ; 2 Leading Cases iu Equity, 1, and notes. 310 THE ADMINISTRATION OF TBUSTS. Other in- stances of construc- tive {rust. Lease re- newed, subject to trust. Purchase from him- self ty trustee for sale. The principle of those trusts by implication of law,, however, which have been distinguished as constructive trusts, as they are enforced at this day, under the administrative jurisdiction of the Court, is by no means confined in its application even to the general case of a transfer or transmission of the legal ownership of the land or other property, taken with notice of the trust. It is extended also by parity of reasoning to dealings with the beneficial interest, and which dealing the trustee may have entered into, either with a view to his own advantage, or otherwise. And of this a familiar instance is the case of a trustee of leaseholds who renews, whether intending his own benefit or not, and who is held constructively to be in either case a trustee of the renewed lease, for the same persons for whom he held the original lease. -The illustration commonly used in speaking of this doctrine is, that the new lease is what is called a graft on the old one, and is subject, therefore, to the same equitable rights and interests as that was {a). So, also, if a trustee for sale purchase from himself on his own account, whether through the medium of a third person or not, the transaction is in the eye of the Court of Chancery altogether a nullity, and the original trust is still subsisting, and may be enforced (&). Now these principles, which are of every- (a) Keeeh -u. Sandford, 1 Leading Cases in Equity, 32, and cases in note there, Pickering o. Vowles, 1 Br. C. C. 198 ; James v. Dean, 11 Vesey, 383, 15 Vesey, 236 ; and see Acheson v. Fair, 2 C. & L. 208 ; Lewin, 4th ed. 139 et seq. (6) Fox V. Mactreth, 1 Lead. Ca. Eq. 72 ; S. C. 2 Br. C. C. 400, and 2 Cox, 320 ; is a leading case on this point ; and see cases cited in 1 Leading Ca. Eq. 104, and following pages ; and also Levrin, Chap. xvii. s. 3, p. 335, and CONSTETTCTrVE TEUSTS. 211 day application in modern times, it may suffice here only to have mentioned, in connection with the admi- nistrative jurisdiction which I am considering; referring in passing to — besides the text writers (a) Mr. Spence and Mr. Lewin, who cite fully the authorities, — a singular illustration of the rule against a purchase by a trustee from himself in the recent case of Ingle v. Richards Q>). There such a purchase had been made and not impeached ; and the heir at law and next of kin of the purchasing trustee disputed between each other the effect of the purchase, the heir contending that it con- verted the purchase money into land for his benefit, while the next of kin contended the reverse ; and the Master of the Rolls held that the sale, being a nullity, and being capable of being avoided at any time, had no effect in altering the nature of the property invested. But to sum up this doctrine of constructive trust, Legal it may briefly be said that throughout the "equitable tmstee administration, any separation, from whatever cause, ^°^ ?*® of the legal from the equitable interest (except in the owner, in case of a provision for a child), implies a trust on the except in part of the legal holder for the equitable owner or proT"sfo„°3 owners (c). And the same principle is carried even f"'^ oWl- ' dren. into the simple case of a contract for sale of land or other property ; — ^the vendor, from the date of the con- following pages, 4tli ed. ; and the rule extends to the agents or attorneys of the trustee for sale. Bloye's Trust, 1 Mac. & Gr. 488 ; S. C. sub nom. Lewis V. Hilman, 3 H. L. C. 607. (a) 1 Spence, 512 ; Lewin Chap. ix. 108, Chap. x. 138, and Chap. xvii. 8. 3, p. 335. (6) 28 B. 361. (c) See ante, p. 207 ; and 2 Spence, 1D4. p 2 212 THE ADMINISTEATION OF TRUSTS. tract, being held a trustee of the land for the pur- chaser; and, conversely, the purchaser a trustee of the purchase money for the vendor (a). Thus, it wiU be seen how far we have got from the elementary instance put by Lord Hardwicke, of a purchase by A., and conveyance taken at his instance in the name of B. Resulting But in the other case (also put by the great Judge just mentioned) — a resulting trust — the scope of the modem doctrine is hardly less strikingly extended beyond the limits of the old law on the subject. Lord Hardwicke, it will be recollected, mentions as an instance of the second branch of trusts by operation of law, — or, in other words, of that branch which has been here distinguished as being properly resulting trusts, — only the case in which the trust declared affects a part of the estate, in which case, as he says, the beneficial interest of the residue results in favour of the donor (6). But it is almost needless to say, that at this day the rule is not, if indeed it ever was, confined to cases of a partial failure only of the decla- ration of trust; but, on the contrary, the entire absence of declaration leaves, in like manner, a re- sulting trust of the whole, wherever it is clear that the donee is not meant, himself, to take any part bene- ficially. The doctrine, in short, of constructive trusts, at this day, in favour of the original owner, or his representatives, may be stated as broadly as (a) Green v. Smith, 1 Atk. 572 ; Sugd. T. & P. IStli ed. Chap. v. s.l, p. 146. (5) See Lloyd v. Spillet, 2 Atk. 150. RESULTING TRUSTS. 213 we have just seen that it is laid down in favour of a stranger (a). One remarkable illustration, however, of this doc- Ackroyd o. trine of resulting trusts, — and which is to be found in FaUu'ie''of its application to the case of directions to convert land direction to convert into money, or money into land, for a particular pur- realty into pose, and that purpose fails, wholly or in part, — seems or vice ^' to deserve a passing mention, inasmuch as it was with ''"'"^" reference thereto that the famous case of Ackroyd v. Smithson was decided in the year 1780, in which the celebrated argument of Mr. Scott, afterwards Lord Eldon, established for the first time one of the leading points of the present law on the subject. The case, as reported by Mr. Brqwn (b), contains a statement of Lord Eldon's speech from his own notes. The pre- (o) See the rule, Lewin, 109, 4th ed. ; and HiU, 72, where the dis- tinction, that a purely voluntary conyeyance raises no presumption of a trust being intended for the person conyeying, is clearly pointed out and supported. In Cook v. Fountain, 3 Sw. 591, Lord Korth thus puts the point on the necessity of there being some evidence that the beneficial interest was not intended to pass with the legal. " Declarations," [of trust] he says, " appear either by direct and manifest proof, or by violeTU and necessary presumption. These last are commonly called presumptive trusts, and that is, when the Court, upon consideration of all the circum- stances, presumes there was a declaration either by word or writing, though the plain and direct proof thereof be not extant. . . . There is one good general infallible rule that goes to both these kind of trusts (those implied by the law or presumed by the Court), — it is such a general rule as never deceives— a general rule to which there is no exception — and that is this: the law never implies, the Court never presumes, a trust, except in case of absolute necessity. The reason of this rule is sacred ; for if the Chancery do once take liberty to construe a trust by implication of law, or to presume a trust unnecessarily, a way is opened for the Lord Chancellor to constme or presume any man in England out of his estate ; and so at last every case in Court will become casus pro amico." (6) 1 Br. C. C. 503. 214 THE ADMINISTEATION OF TEUSTS. cise point decided was that, on a direction to sell land for payment of debts, or tlie like, where the purpose does not exhaust the whole proceeds of the sale, what remains of such proceeds results to the heir of the donor in its original form of real estate, and does not go to his next of kin as personalty, and that though the fund he by the testator actually blended with his personalty in one common mass (a). The principle is that the direction to sell, considered as a declaration of the trust or purpose to which the pro- perty is to be applied, must be strictly confined to the uses for which it was intended, and so far as the direction fails or is not wanted for those purposes, the property must be taken to remaip as it originally was, and reverts in that shape to the donor (6). And a similar principle applies to a direction to lay out money in land, to be settled to uses which either wholly or . partially fail of effect. In that case, even though the land has been purchased, the interest in it not disposed of will revert to the donor, not as land, hut as money, and go to his executor, not his heir (c). Express I must now turn to express trusts, which I have tabiisi-^^' reserved for notice last, because the division of this ment of. pig^gg of trusts into what have been called — not perhaps . (a) See also, ou this point, Jessop v. Watson, 1 H. & K. 665 ; Salt v. Chattaway, 3 B. 576; Lewin, 115, 4th ed. (5) Lewin, 114 ; 1 Spence, 510. (c) On this point the reader trill find the cases fully stated in Lewin, p. 116 etseq^., and 1 Spence, 510 ; to which works I mnst also refer for such further and fuller information on the subject of constructive and resulting trusts generally, as the scope and limits of the present publication pre- clude me from attempting here. EXPRESS TRUSTS. 215 very accurately — trusts executed and trusts executory, will lead us naturally on, from the consideration of the trust itself to he estahlished, to the execution of it by the Court, and the administration accordingly of the property to which it is attached. Now, in the case of a trust declared in favour of an What ex- individual or individuals, unlike that of a trust des- declaration tined for a public or charitable purpose, there must"^*?^"^* he a definite indication of the particular object of the trust of the person or persons, i.e., who are to enjoy the benefit of it; otherwise it results, as we have seen, to the donor (a). In public trusts, it is enough, as Sir W. Grant said, in a judgment cited by me in a former page (J), if we can discern a charit- able intention, or general intention to benefit ; but in private trusts this is not sufficient. There a general intention that the donee should take as trustee, and not for himself, but without saying for whom he is to be trustee, causes, as we have seen, simply a resulting benefit to the donor. The expression of the trust, in short, if it is to take effect in favour of a third party, must be found in the deed or will with sufficient pre- cision to make the intention clear ; though, as equity always looks to the intention rather than the form, it will be sufficient, especially in a will, if the intention is shown, though the language be not technical (c). Very numerous questions, consequently, have arisen, and (o) See amte, p. 212 ; Lewin, 109 ; Hill, 72. (6) In Gary v. Abbott, 7 Yesey, 495; ante, p. 157, (c) See Lord ElJoa's judgment in Morice v. Bishop of Durham, 10 Vesey, £36, and Lewin, 83 ; Hill, 25. 216 THE ADMINISTEATION OF TRUSTS. their solution forms a large part of the case-law on this subject, as to the sufficiency or insufficiency of given words to import a trust ; and they have arisen, as might he expected, principally, if not exclusively, on wills ; the class of expressions on which they have arisen being called by some writers, as Mr. Lewin, " implied trusts " (a), and by others " precatory trusts " {b) ; and the principle involved in them is that if a testator " request," " recommend," or " de- sire " his trustees to apply specified property for a definite object, — or use any like expression, as espe- cially if he use the word itself " confide " or " trust," — there he does not mean to leave a mere discretion to -his trustees or executors (as the case may be) to withhold or to apply the property, but intends an absolute trust, which a Court of Equity will lay hold of, establish, and execute (b). Section 2. 0/ the Execution of the Trust. Trusts ex- Assuming, then, that there is a trust, the next executory; thing for the Court of Equity to do is to execute it; bet^eu?" ^'^^ ^^^^ brings me back to the distinction— not per- haps very accurately stated, though practically a most real one — between trusts executed and trusts executori/. Lord Eldon, in the case of Jervoise v. Duke of North- umberland {c), indeed, admits that "one is a good deal (a) Lewin, Chap. viii. a. 2, p. 100 et seq. (J) Hill, 32 ; Gary «. C. 2 Sch. & L. 189. (c) 1 J. & W. 670. TEUSTS EXECUTOEY. 217 confused by the inaccuracy of the expressions 'trust executory ' and * trust executed.' The latter, no doubt, is, in one sense of the word, executory, — that is, if A. B. is a trustee for C. D., or for C. D. and others ; that in this sense is executory, — ^that C. D., or C. D. and the other persons, may call upon A. B. to make a conveyance and execute the trust." In other words, every tpisf is in this sense executory, that either the trustee or the Court of Chancery may be called upon to execute it; and so long as that is not done — i.e., so long as the trust subsists at all — ^it is still in that sense executory. " All trusts," says Lord Hardwicke, " are in notion of law executory, and to be carried into execution here by subpcena " (a). However, there are some trusts which are un- Executory -. 1 Ti . • 1 ■ 1 ii , trust de- doubtedly executory m a sense which others are not. scribed. In the simple case, for instance, cited by Lord Eldon as an executed trust, of A. B. being seised of land in trust for C. D., or for C. D. and others [and which, as his lordship observed, implies, as all trusts do, that A. B. may at any time be called on to convey accord- ingly, and so execute the trust], if the form of the trust had been, not simply that A. B. and his heirs should hold for C. D. and his heirs, but that A. B. and his heirs should settle or convey the land to other trustees, upon certain trusts and limitations, in favour of C. D. and other specified persons, indicated with more or less certainty, or even actually specified in the instrument giving the direction, then it is clear that (o) Bagshawe v. Spencer, 1 Vesey, 52. 218 THE ADMINISTEATION OF TRUSTS. there Would have heen something left for the trustee to execute, — a duty for him to perform, which, in the dry ordinary case put hy Lord Eldon, is not found or implied. The trust, in short, on the supposition I have just made, would have heen executory ; whereas the case put by Lord Eldon is, by contrast with this, commonly described as a trust executed (a). For those trusts are obviously, ia a special and peculiar sense, executory, in which the instrument creating them contemplates and agrees upon some further deed of conveyance or settlement to be executed afterwards (whether to operate by transmutation of the possession or not), either for giving effect to the trust, or at least for more particularly declaring and defining it, and does not limit the trust as presently and immediately to affect the property. As some of the judges have quaintly expressed it, the testator or author of the trust is, in the case of what is called a trust executed, "his own convey- ancer " (b) ; i.e., he conveys the estate at once upon the trusts which he specifies, whereas a trust exe- cutory is one in which he directs others to convey for him. Execution Now it is in the execution by the Court of executory of trusts trusts of this sort, that one of the most remarkable executory, j^gtancgg jg presented of the exercise of the adminis- trative jurisdiction now under our consideration. For (a) See Lord Glenorchy v. BosTille, 1 Lead. Cases in Equity, 1, and notes thereto, and Lewin, 86. (5) See Lord St. Leonards' judgment in Rochfort v. Fitzmanrice, 1 Con. & L. 173. EXECUTION OF TRUSTS EXECUTOEY. 319 though the general rule in equity is, that what is Eule of agreed to he done is considered as done — so that an execute the agreement to settle to specified uses and trusts is in '°*«'^''"=^' fact, or at least might be expected to be, an actual equitable settlement, to the precise uses and trusts men- tioned in the agreement, and so would leave no room for the Court to settle in any other way — yet, in point of fact, in applying thq, rule I have mentioned, the Court is also mindful of another equally stringent and equally applicable rule, viz., that in equity the inten- tion shall always prevail, though the letter may be inconsistent with it. And thus where it is clearly the intention of a settlor or testator that a settlement directed by him to be executed shall not be a literal reduction into executed trusts of the limitations or heads of trust, which he has indicated in his agree- ment or will, — there the Court follows the intention rather than the letter, — acting however therein, not upon any vague or uncertain discretion, but upon known and fixed rules established by a long series of decisions. The leading case on this class of administration is Lord Gien- generaUy considered to be that of Lord Glenorchy v. Bosville. Bosville, decided by Lord Chancellor Talbot in Mi- chaelmas Term, 1733, and reported in Cases temp. Talbot (a), or more fuUy in White and Tudor's Leading Cases in Equity (J). "Lord Qlenorchy y. Bosville, in Lord Talbot's time," said Lord Hardwicke, in the same judgment which I have already cited from Bagshawe (a) Page 3. (l) Vol. i. p. 3. 220 THE ADMINISTRATION OP TBUSTS. Principle of v. Spmcer (a), "has established the distinction between trusts executed and executory;" the passage in Lord Talbot's judgment thus referred to being as follows : " In cases of trusts executed, or immediate devises " [as, for instance, a simple devise to A. and his heirs, in trust for B. and his heirs], "the construction of Courts of Law and Equity ought to be the same " [i.e., in the case just put, the Court of Equity ought simply to direct a conveyance of the estate to B. in fee, according to the letter of the devise, construed as a Court of Law would construe it] ; " for," his lordship adds, " there the testator does not suppose any other conveyance wUl be made ': hut in executory trusts he leaves somewhat to he done — the trusts to he executed in a more careful and accurate manner." Facts and j^,j \^ ^he principal case, there being a devise to decision in ^ ° Lord Qlen- trustees upon trust, if the testator's granddaughter, Bosviile. Arabella, should live to marry a Protestant of the Church of England, she being at the time of the marriage of the age of twenty-one years or upwards (which event happened), then to convey the estate with all convenient speed after the marriage to the use of Arahella for life, without impeachment of waste, re- mainder to her hushand for life, remainder to the issue of her hody, with divers remainders over ; — and it was held, that though Arabella would have taken an estate tail had it been an immediate devise (on the principle known as the rule in Shelley's Case) (6), whereby a limitation in remainder to the issue is held to coalesce with the (a) 1 Vesey, 62. (b) 1 Rep. 93 ; i Cr. Dig. 304. EXECUTION OF ARTICLES AND WILLS. 221 previous life estate in the ancestor, so as to make both together an estate tail in the first taker ; yet that the trust, leing executory, was to be construed in a more careful and more accurate manner, and that a convey- ance to Arabella for life, remainder to her husband for life, remainder to their first and other sons succes- sively in, tail, remainder to their daughters in tail, would best serve the testator's intent. * The effect of the decision, it will be seen, is, that Agreement whereas in the original will the limitations, if the ^y a strict devise had been immediate, would have given to the settlement. first devisee, Arabella, an estate tail, which she might have barred by recovery, and so defeated the pre- sumed intention of the testator, namely, to provide for the issue of the marriage ; yet in the settlement which the Court ordered to be executed in pursuance of the executory trust, a life estate only is given to the parent (Arabella), and the estate tail is postponed so as to vest in her unborn issue ; or, to use the technical term appropriated to such cases, the estate is limited in strict settlement. And this in such cases has now become a rule of Execution universal application. Where the executory trust, in- jy^gts of deed, is contained in marriage articles, which is perhaps ™J|^^]gg^® the most usual case, there the intention to provide for and of wills ; dif- thie issue is held always and necessarily to be the ference primary intention of the contract, and the estate, ^e'''^^°- though articled to the parent for what is in legal effect an estate tail, is by the Court nevertheless settled in strict settlement, i.e., it gives the parent only a life estate, and vests estates tail in remainder in the first 322 THE ADMINISTBATION OF TRUSTS. and other sons in succession, and then in the daughters as tenants in common (a). But where the executory trust is created bi/ a will, as in Glenorchy v. Bosville, there this intention is not always implied, and the rule therefore does not universally apply, but is only appli- cable when (as in the case I have just named) such intention is deemed to be otherwise evidenced on the face of the will itself (S). Sir W. « J tnow of no difference," Sir W. Grant said, in Grant in Blackburn Blockhum V. Stables (c), "between an executory trust in marriage articles and in a will, except that the object and purpose of the former furnish an indication of intention which must be wanting in the latter. When the object is to make a provision by the settle- ment of an estate for the issue of a marriage, it is not to be presumed that the parties meant to put it in the power of the father to defeat that purpose, and appro- priate the estate to himself. If, therefore, the agree- ment is to limit an estate for life, with remainder to the heirs of his body " (which, according to the rule in Shelley's Case [d), would be the same thing in law as an estate limited direct to the parent and the heirs of his body, i.e., an estate tail in him), " the Court decrees a strict settlement, in conformity to the presumable intention ; but if a will directs a limitation for life, with remainder to the heirs of the body, the Court has no such ground for decreeing a strict set- (a) Glenorchy!). Bosville ; Eoohfortr. Fitzmauriee, vhi supra; Lewin, 87. (6) See Blackburn v. Stables, 2 V. & B. 369 ; Strafford v. Powell, 1 B. & B. 25 ; Lewin, 86. (c) 2 V. & B. 369, id) Ubi mpra. EXECUTION OF AETICLES. 223 tlement. A testator gives arbitrarily what estate he thinks fit; there is no presumption that he means one quantity of interest more than another — an estate for life rather than in tail or in fee." There is no presumption, that is to say, beyond what you can collect, as Sir John Leach expressed it in a subse- quent case (fl), " from the language of the will itself." And the same rule has been laid down at the present day, almost in the same terms, by Lord St. Leonards, sitting as Lord Chancellor of Ireland, in a case of Rochfort V. Fitzmaurice (b), a case which so completely comprises all the points which I have just referred to, that I cannot conclude this part of the subject better than by briefly adverting to it. In that case, by postnuptial articles, a landed estate ^°^^ ^'• . Leonards was by the father of Harman Fitzmaurice (the bus- in Koohfort band) covenanted to be settled as counsel should direct mauriee. to the use of Harman for life, and after his decease to the use of the heirs male of the body of Harman law- fully to be begotten, and for default of such issue to Thomas, brother of Harman, for his life, and to the issue male of the body of Thomas lawfully to be begotten, with remainder over. No settlement had been executed, nor had the bill been filed in the prin- cipal suit, nor had any bill been filed at all, to execute the trust. But a judgment creditor of Harman brought a bill to be satisfied out of the estate, on the allegation that his debtor was entitled to an estate tail, as he no doubt would have been, had the trusts been executed (a) Deerhurst v. Duke of St. Albans, 5 Madd. 260. (6) 1 C. & L. 158 ; 2 D. & W. la. 224 THE ADMINISTEATION OF TEUSTS. and had SheUey's Case applied. The Lord Chancellor, however, held that the trusts were executory, and that inasmuch as, if they had been executed, or should afterwards be executed, under the direction of the Court, — they must have been or must be, executed in strict settlement, viz., with a life estate only to Harman, remainder to his sons successively in tail ; — ^the Court must regard that which would have been so done as actually done, and his lordship dismissed the bill with costs. Rochfort V. ijiie Lord Chancellor, in giving judgment, said, rice, judg- " there is no difference in the nature of the thing, be- tween a voluntary settlement and a will ; but this is as near an antenuptial contract as can be The question is, is this an executory trust or not? If I come to the conclusion that it is an executory trust, I think there is no difference ds to executing the intention between an executory trust created by mar- riage settlement, and a voluntary trust or a trust by will. In the one case, the very nature of the instrument establishes what the intention is; in the other you must establish it by the matters which appear on the face of the instrument itself. Well, then, I say that there is no doubt whatever that this is an executory trust; therefore, it is in law one which must be executed. No doubt all trusts are, as far as the trustees are concerned, executory, but a settlor, in declaring the trusts, may have been what is called his own conveyancer. Though he may have vested those trusts in trustees, yet he may have left nothing doubtful, and no ground for the Court to interfere. This is not so here. The whole trusts are EXECUTORY SETTLEMENT OE CHATTELS. 225 executory, and they must be executed differently from what they are expressed." And after an elaborate survey of the authorities, beginning with Glenorchy v. Bosville{a), his lordship concluded by dismissing the bin, on the ground that the estate must in equity be considered as being settled in strict settlement, so that Harman, the first taker, took only for life. Again, on the execution by the Court of trusts exe- Execution of trusts cutory, it frequently happens that chattels, — generally for annex- either chattels real, i.e. leases for years, — or chattels ^fmg^'^a personal, of the nature of heirlooms, — ^which it is wished °^^^^^ ^ to keep with a family estate, — are covenanted to be family es- settled upon the same trusts as have been previously declared or agreed upon, with regard to the landed estates of freehold, such last-mentioned trusts being usually trusts in strict settlement. In such a case, to effectuate the' intention, as far as possible, it is laid down by the learned editors of the Leading Cases in Equity (&), on the authority of Duke of Newcastle v. Lincoln (c), and other cases, that the Court will insert a clause in the settlement which it directs to be exe- cuted under the trust, postponing the vesting of the chattels in the first tenant in tail of the realty, imtil he attains twenty-one years of age, or until he dies under that age, leaving issue (being the longest period to which the vesting can be postponed consistently with the rules against remoteness). For otherwise the first tenant in tail of the real estate would, immediately on (a) 1 Lead. Cases in Equity, 1 ; Ca. temp. Talbot, 3. (5) White & Tudor, 1 Lead. Cases in Equity, p. 23. (c) Newcastle J). Lincoln, 3 Vesey, 397. Q 226 THE ADMINISTEATION OP TRUSTS. his birth, take the chattels absolutely ; so that, on his death under age, they would go to his executor or admiuistrator, and not to the next tenant of the estate, according to the intention — chattels vesting absolutely under the same limitation which in free- holds would confer only an estate tail. This point, however, wiU be found very fully dis- cussed, and all the cases considered, in a case of Lord Scarsdale v. Curzon, decided in 1860 by Vice-Chan- cellor Wood {a), a case in which the trusts were trusts executed, and the chattels were accordingly held vested in the first tenant in tail at the time of his birth ; but the Vice-chancellor said (6), that, "where the trusts are executory (the case we are now considering), there has been considerable difference of opinion, and I do not consider the law as fitnaUy settled by authority; but if it is so, it is in favour of the introduction of par- ticular conditions, such as the attainment of twenty-one, into the limitations. Such a restraint was certainly upheld in Lady Lincoln v. Dulce of Newcastle. That case, however, may be open to observation, Lord Eldon having always protested against it." The point, there, fore, as to the course of the Court with reference to chattels thus situated, when the trusts are executory, cannot be considered as settled, and the rule seems to be, at all events, confined to executory agreements by articles, and not to extend to mils. Lastly, in administering executory trusts of this tind, the Court is in the habit, if "usual powers" are (a) 1 J. V. H. 40. (6) Page 51. TRUSTS EXECUTOET. 227 agreed for or directed, or the like expression is used, of iaserting of its own authority all ordinary powers, such as powers of leasing, of sale and exchange, of partition, and of appointing new trustees ; but not, it seems, any special powers — such as provisions for portions, or for jointuring a future wife — without a special direction (a). Such, then, is a very brief outline of the jurisdic- Beneficial tion of the Court of Chancery in the execution and t^g^q^it. administration of trusts executory, a branch of the a^e juris- , . . . . . T . .,, . , . diction iu administrative jurisdiction illustrating perhaps better administer- than any other, as well the beneficial influence ofg°|(s„t"^_ equity in mitigating the injustice which, in the case before us, would otherwise have resulted from the rigorous technicality of the rule of law, as the plastic powers of this administrative jurisdiction to mould and shape the course of justice according to its own prin- ciple, — and the justice and reason of the principles themselves. No reasonable man, I suppose, could ever have doubted that when persons about to marry expressly agree that either party, or both, settling an estate, shall take a life interest with remainder to the issue of the marriage in tail, what is meant is simply what is said — ^viz., that the parents' estates should be life estates, and not estates tail ; and that the children should take substantive estates also under the entail, and not no estates at all. Yet, at law, by the technical rule established ia Shelley's Case {b), this clear and palpable intention is whoUy and absolutely set at (a) See 1 White & Tudor, Lead. Ca. Eq., 28, and cases cited. (6) 1 Co. Kep. 93 ; 4 Cr. Dig. 304. « 2 228 THE ADMINISTRATION OF TEUSTS. nought, and under such an agreement as I have men- tioned, the parent takes an estate tail, and the children nothing. The estahlishment in Equity of an opposite rule seems to have been a most seasonable interposition by that Court, and one by the exercise of which the Court of Chancery has fully earned the title to the power sometimes denied to have been ever exercised by it, — " potestatem," to use Lord Bacon's words, "tarn subveniendi contra rigorem legis, quam sup- plendi defectum legis." For it remedies, in fact, in the case before us, the technical injustice of the legal rule, which would otherwise totally defeat the inten- tion of the parties, and render their settlement of none effect. The possibility, however, of the inter- ference rests, it will be observed, on the fact that, the trust being executory, the Court of Equity has jurisdiction to follow its own rules; if the trust be executed, it can only foUow the law, and execute what it finds in the literal tenor of the contract. But with respect to the course pursued by the Court in administering trusts executory, of the class before us, the words of the great antiquary Camden seem not inapplicable (a). "Much authority and dignity," he says, "hath been added to the Chancellor's office, especially ever since that (common) lawyers stood so precisely on the strict points of law, and caught men with the snare of their law terms — so that of necessity there was a Court of Equity to be erected, and the (a) Eritannia, 181 THE COUESE OF THE ADMINISTRATION. 229 same committed to the Chancellor, who might give judgment according to equity and reason, and moderate the extremity of the law." Section 3. 0/ the Administration, its Course, and Duration. Having spoken in the last section, of the trusts, other Course of than charitable, which it comes withia the scope of the ju^tratSn Chancery jurisdiction to establish and administer, — it "'^ecuring remains now to speak of the course of that administra- bating the tion — 1st, in securing, and 2ndly, in distributing, the property which is the subject of it. For, in the first place, to hold the property — to have the management and control of it, and, in a word, to secure it for the purposes to which it is destined, and that imtil, in the second place, the time shall come, however remote and deferred, for its ultimate transfer or distribution — is an obvious and necessary condition of every admi- nistration. To be administered, in short, property, whether real or personal, must be in the power and control of the administrator. And accordingly the rule is universal, that on a suit for administration being insti- tuted, the Court, as soon as it can ascertain the property which is the subject of it, assumes the possession or direction of it, and, in fact, itself imdertakes the trust. Thus, if personal property is limited to A. for life, and after his death to B. absolutely, or after his death to his children at twenty-one, and if no such children, then contingently to B., the property, if consisting of money or stock, is, as a matter of course, and whether it be ia danger or not, ordered into Court in the suit 239 THE ADMINISTEATION OF TEUSTS, on the applicatioji of B. for the purposes of the administration (a). And so, if there were a hundred intermediate interests before B.'s, B. would have a right to have the fund secured in Court till his right vested in possession. If the fund, again, consists of specific chattels, as furniture or the like, the old rule was — and where danger to the property is shown, still is-^to compel the first or intermediate holder to give security for their delivery to the parties ultimately to become entitled ; but if there be no danger, the Court now merely obliges the life or other temporary owner to make out and deliver to the plaintiff, or into the possession of the Court, an inventory of the chattels in question (6). Again, if there be real estate devised in trust, and a bill be filed for the execution of the trusts, or, in other words, for the administration of the estate, by the Court, the Court will in like manner assume tiie management, and, if the case require it, the possession (or receipt of the rents) of the estate, until the time arrive when some person or persons of full age and capacity become entitled in possession, either legally or equitably, and by themselves or their trustees apply to be put in possession accordingly (c). (a) See ty Lord Hardwieke in PMpps v. Annedey, 2 Atk. 58 ; Ferrard V. Prentice, Amb. 273, (5) Lord Thnrlow in Foley ». Bnmell, 1 B. C. C. 279 ; Jeremy's Eq. Jurisdiction, Chap. ii. b. 2, pp. 350-1 ; Wms. Exors. 1258. (c) 2 Story, Eq. Jnrisp. ss. 827 — 835, Jeremy's Eq. Jurisdiction, 249 ; and see by Lord Eldon in Davis v. Marlboro, 2 Sw. 118, 165 ; and Angel v. Smith, 9Vesey, 367. The Court regularly acts by a receiver ; but if there- be acting trustees, and no reason to displace them, the Court will not do so. LENGTH 01* THE ADMINISTRATION. SSI The first point, then^ which seems to require notice Lengtt of with respect to this course of aduEiiuistration — isnistotion- the period of ^ts duration, a duration which, hut for T ^^?* '* dependB. the restrictions placed upon it hy the operation of the rule against the indefinite postponement of the testing of estates, (commonly known as the rule against perpe- tuities), and the rule against the indefinite accumu- lation of the iacome thereof, might, in fact, be itself mdefinite. For it depends simply on the number and duration of the successive estates which may be limited by the trust in course of administration ; — in other words, on the number and longevity of the tenants for life, or other limited period, who may successively enjoy the temporary possession of the property; — ^the occurrence of minorities among the persons succeeding to the estate in tail or absolutely; — the duration of annuities ; — ^the length of. time occur- ring before portions become raiseable, and the Kke inci- dents. To decide the point in difference, and to decide it at once, and have done with it, is the object and merit of a contentious jurisdiction ; but in the administrative jurisdiction before us, the function of the Court is to manage, secure, and distribute ; and only incidentally, and as occasion arises in the course of the effluxion of the trusts, to decide doubts or differences. The continuance of the suit, therefore, in the latter case, until the whole purposes of the administration are answered, — which indeed is the express object and intention of the parties who have instituted it, — might, but for the rules just adverted to, often involve a great lapse of time. 232 THE ADMINISTHATION OF TEUSTS. The Thei- In the Celebrated TheUmson Case, for instance, which ■ was instituted in the year 1798, and gave rise to the rule against indefinite accumulation, to which refer- ence has been made, the object of the suit was to administer under the direction of the Court the estate of the testator, Peter Thellusson, who died in 1797, and to obtain, from time to time, as events should render necessary, the opinion of the Court on the construction of the will. But the event on which the ultimate distribution of the accumulated fund was to take place, and on which especially the opinion of the Court was required, happened not till the year 1856 — upwards of half a century after the commencement of the suit — ^by the death of the testator's grandson, Charles TheUusson ; and up to that time it was, of course, essential that the administrative control of the Court should be continued, that the property and funds should be secured (in this case accumulated), and that all intermediate questions of title to any part thereof should be solved as they arose (a). Trevor v. So also in the case of Trevor v. Blucke (6) a suit had been instituted in the year 1709 for administration of the estate of a Mr. Matthew Blucke, then deceased, but lately an usher of the Court, a part of the duties of whose ofiice it then was to hold the money of the suitors, giving security to account for it. Mr. Blucke (a) The ultimate adjudication by the House of Lords on the construction of the will and final disposal of the property, is reported in 7 H. L. C. 429, utb nom. Thellusson v, Kendlesham, where a shoi^t history of the case is given from the beginning. (6) 6 D. M. & G. 176. ETJLE AGAmST PEEPETUITIES. 233 having been a defaulter, most of the claims against his estate had been liquidated through the means of the administration ; but, there being other claims stUl outstanding, a sum of money, forming part of the estate, was retained in Court to meet them, the dividends being for many years paid to the repre- sentatives from time to time of Mr. Blucke's family ; but this payment having been discontinued, in the year 1854 an application was made by Mr. Blucke's then representative for a renewed payment of the dividends. The application was refused by Sir J. EomiUy, M.R., on the ground that the whole fund, in fact, belonged to the suitors whose claims it had been retained to meet; but Lord Cranworth, C, on appeal, considered that it was merely an indemnity fund, and that it might be presumed at this distance of time that the suitors' claims were satisfied ; and he paid out the principal to the applicant. The duration of the suit, in short, technically speak- ing, depends on the purposes of the administration. If these purposes require it, the suit, subject to the rules above referred to, will remain in existence, though dormant, for any length of time. In relation, then, to the duration of an administrative Euie procedure, it wiU be material to state the rule iust *g*^^t * ' •' perpetu- referred to, restricting — so as to prevent what is caUed Hies. a perpetmty— the time during which the vesting of property, and, consequently, the power of alienating it, may be suspended, and the property tied up — together with the further rule, the enactment of which by statute originated in the celebrated case already men- 334 THE ADMINISTRATION OF TRUSTS. Enle tioned, restrictive of the period during wMcli the against in- , . ... definite interest or income of property rinder administration tion may be accumulated. Statement Now, the first rule I have mentioned, viz., that re- againstper- stricting the limitation, — so as to tie up the property, petmties. ^^^f ggtates to vest and take effect in futuro, did not assume, and was not required to assume, any fixed shape, until the introduction of executory trusts and devises had enabled such future and successive limi- tations to be made. But in the establishment of this species of limitation, it was considered. Sir W. Black- stone says (a), — " That the contingencies ought to be such as may happen within a reasonable time ; as within one or more life or lives, or being, or within a moderate term of years ; for courts of justice will not indulge ieven wills so as to make a perpetuity, (which the law abhors) ; because by perpetuities, (or the settle- ment of an interest which shall go in the succession prescribed, without any power of alienation,) estates are made incapable of answering those ends of social commerce, and providing for the sudden contingencies of private life, for which property was at first esta- blished. The utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in, is, that of a life or lives in being, and twenty-one years afterwards ; as when lands are devised to such unhm-n son of a married woman as shall 'first attain the age of twenty-one years, and his heirs; and the utmost length of time that can happen before (a) 2 Bl. Com. 173-4. RULE AGAINST PERPETUITIES. 235 the estate can vest is, the life of the mother, and the subsequent infancy of her son; and this hath been decreed to be a good executory devise " (a). The rule as thus stated, in fact involves, as will be seen, besides the life of the parent, and twenty-one years afterwards, a further period, not exceeding nine months, to include the time of gestation, or such part of that time as may in fact be preceded by the death of the testator. And this is so stated wherever the rule is accurately enun- ciated. Thus in Jee v. Audky (J), Lord Kenyon, M.E., says, "Limitations of personal estate (it is the same with real,) are void unless they necessarily vest, if at aU, within a life or lives in being, and twenty-one years, or nine or ten months afterwards. This has been sanctioned by the opinion of Judges of all times, from the Duke of Norfolk's Case to the present time ; it is grown reverend by age, and it is not lightly to be broken in upon." The rule is now settled on the above basis, but in Final eniiu- the letter of it, in a somewhat more extended form, to ^he r'Se'^by the following effect : " A limitation by way of execu- *^'j^f ™'^ tory devise which is not to take effect until after the determination of a life or lives in being, and a term of ' twenty -one years afterwards {as a term in gross), and without reference to the infancy of any person to take under it, is a valid limitation; and the period of gestation may be further allowed in cases where the gestation exists, and has to be added to an actual* minority, but not in any other case." This form of (a) 2 BI. Com. 174. (6) 1 Cox, 325. 236 THE ADMINISTEATION OF TRUSTS. the rule, extending it nakedly to the duration of the life and twenty-one years, without reference to an actual infancy, adding the time of gestation, if any, was finally settled as lately as the year 1833, in the case of Cadell v. Palmer {a), by the House of Lords, on the opinion of the Judges delivered by Mr. Baron Bayley. Policy of, The grounds of policy on which these restrictions are founded, and which are referred to, as we have seen, by Sir W. Blackstone, are further dwelt upon by Lord C. Northington, in the case of Buke of MarTborough md Lord GodolpMnQ)), decided in 1759. The case has an additional interest from its having decided and established the invalidity of an attempt made by the great Duke of Marlborough, so to devise his landed estates (other than the Blenheim estate, which was by statute annexed to the title) as to render them in fact /or ever inalienable, by directing perpetual revocations and resettlements, as often as a first son should be bom to the successive tenants for life. Lord Northington, in disallowing this contrivance, was un- able, it seems, to find a satisfactorily technical reason for the law on which his decision was rested, though the general policy of that law he certainly very clearly points out. His lordship says (c) : " Why the law disallowed these kinds of limitations," (successive limi- tations in fee, or a fee upon a fee,) " I will not take upon me to say, because I have never met, in the (a) 10 Bing. 140. (i) 1 Eden. mi. (c) 1 Eden, 416. POLICY OF EUIE AGAINST PERPETUITIES. S37 , compass of my reading, with, any reason assigned for it : and I shall not hazard any conjecture of my own; for technical reasons upheld by old repute, and grown reverend by length of years, bear great weight and authority ; but a new technical reason appears mth as Uttle dignity as an usurper just seated in his chair of state. So far, however, is plain, that the common law seemed wisely to consider that the real property of this State ought, to a degree, to be" put in commerce, to be left free to answer the exigencies of the possessors and their families, and therefore admitted no perpetuities by way of entails, and though it allowed contingent remainders, it afforded them no protection. " The disposition of young heirs, the splendour of great families, the propriety of annexing sufficient possessions to support the dignities obtained by iUus- tiious persons, afford specious and colourable argu- ments for perpetuating and entailing estates; but in a country of trade and commerce, to damp the spirit of industry, and to take away one of its greatest incentives, the power of honorably investing acquisitions, would produce all the mischiefs and inconveniences of the Statute of Entails ; and, therefore, the safety of creditors and purchasers makes it, in my opinion, a matter of the highest importance, that the law should be fixed and certain with respect to the limitations of real property in family settlements ; not subject to be questioned upon whimsical inventions (started though by the ablest men) in order to introduce innovations in fundamentals." However, notwithstanding the rules and principles 238 THE ADMINISTRATION OF TRUSTS. Mr. Thel- thus enunciated and supported, Mr. Peter Thellusson, scheme of in the year 1798, managed to satisfy the letter, but to Sns"' evade the spirit of the law, by directing that,— during a period extending to the utmost possible limit which the rule would admit, — his property, originally both land and money, should by repeated investments of the income in fresh purchases of land, be in effect accumu- lated at compoimd interest, in the shape of landed estate; — the beneficial ownership of which resulting estates he limited so as ultimately to vest, in three lots, in " the eldest male lineal descendants," who, at the end of the period should be living, of his three sons named in his will. And he ascertained the period during which the accumulation was to continue, and the vesting be postponed, by referring it to the duration of the lives of nine persons (being his sons, and issue of his sons) who might be living at his own death, or horn within due time afterwa/rds, — thus coming just within the line drawn by the rule I have been stating. And this limitation was upheld, though the effect of the direction to accumulate, which had never before, I suppose, been put in practice, to the extent to which Mr. Thellusson carried it, was contended, though unsuccess- fully, to be a fraud on the rule (a). However, the consequence of this case was, that in the year 1800 the Thellusson Act (6), as it is called, was passed — an Act somewhat enigmatically drawn, and (a) The case is repoited, on the decision of tlie House of Lords, in fkyonr of the limitation, in 11 Yesey, 112, ivb nom. Thellusson v Wood- ford, and in its final stage as Thellusson v. Bendlesham, 7 H, L. C. 429. (5) 39 & 40 Geo. III. c. 98. THE THELLUSSON ACT. 239 • which has since given rise to questions and difficulties of construction as numerous and embarrassing as have been caused by any Act of similar length, throughout the Statute-book. But its effect, thus far at least, is, I conceive, clear. It makes absolutely void any accumulations exceeding any one of the four follow- ing periods ; but to the extent only of the excess, namely : — I. The life of any grantor or settlor, settling by periods App(\ , limited ty "®^"- the Act. II. The period of twenty-one years from and next after the death of any grantor or settlor, (by will or deed). III. The minority or minorities of any person or persons living, (or in esse), at the death of any grantor or settlor, (by will or deed). IV. The minority or minorities of any person or persons who, if of age, would be entitled to the income of the estate settled {a). And these periods, it has been held, cannot be added to each other in the same wiU or instrument. In other words, the testator can have the benefit of one only of the several periods specified, whichever he may select (as, for instance, that of twenty-one years from his own death) ; and if there be any accumulation beyond this, it is bad ; and in effect a wiU or deed must not offend- against any one of the four restrictions thus laid down («). And with this general statement I must leave the Act in question, as relating only (a) See 2 Spence, 167. 240 THE ADMINISTRATION OF TRUSTS. * indirectly to my present subject, and refer the reader who may require further information on it, to the state- ment of the Act, with the decisions on it, contained in Mr. Spence's learned work on the general jurisdiction of the Court (a). Operation Subject, then, to the restrictions by this statute above men- imposed upon the continued accumulation of the '""^ ■ income, — and to the restrictions I have previously men- tioned upon the postponement of the absolute vesting of the principal, of the personal, or inheritance of the real, estate, — property may be tied up for a succession of lives and minorities, during the whole of which, if the trusts be administered under the decree of the Court, it will remain under its direction and control. And at the determination or falling in of the temporary interests, but not before, the Court will finally execute the trust, by directing a conveyance, or if the trust require it, a sale and conversion, of the property, and distribution of the proceeds, in favour of the parties ultimately becoming entitled. Conduct of To enter fully into the practice of the Court in the nistration. conduct of the sales of real estate, in the ultimate execution, or for the interim purposes, of the trust,, — or ia the direction of leases or mortgages, in the course of the administration, — or the appointment and control of receivers, for the purposes of its management, — would be foreign to the present subject.; which is con- cerned rather with ^q jurisdiction of the Court, and the principles on which it acts, in administering trust or {a) 2 Spence, 167. KO POWER IN THE COURT TO SELL. 241 other property, than, with the details of its practice in such matters. I may be permitted, however, to direct the reader's attention here, and before leaving this branch of the administration, to one general principle or rule, which must always be borne in mind, but is too often lost sight of, in considering whether any given administrative step, such as a sale, a lease, or mortgage, can or cannot be taken. And the pria- ciple or rule is this, viz., that nothing whatever can be done, whether in the Court or out of it, which is not warranted by the trust under administration, either expressly or by implication. Let me take, for instance, the case of a sale or a lease. It is obvious The Court that the Court of Chancery has no inherent right or terent "*' authority whatsoever to sell any man's land, or his ''°T®' *° interest in a landed estate, or (which is a sale pro tanto) lease. to let it, merely because that land or interest happens to be devised under a trust, which trust is being admi- nistered in Court, — ^unless such trust either requires or authorises the sale or letting to be made. If there be such a requirement or authority, — a trust There must for sale, for instance, — then the Court has jurisdiction thl^Ho bv its decree to direct the trust to be carried into ?"? i* ■' _ juriadio- execution ; and then, when the time comes for exe- tion. outing the trust, an order for sale will be made, either at the hearing, or (according to the Chancery Act of 1852 [a) ), at any other period of the suit. On the order being made, particulars and- conditions of sale are settled, generally speaking, by one of the six (o) 14 & 15 Tict. 0. 86, s. 65 ; Mandeno v. M., Kay, App. ii. s 242 THE ADMINISTRATION OF TRUSTS. conveyancing counsel of the Court, subject to the approval of the Judge in Chambers ; and the estate is put up for sale accordingly, the purchase money is brought into Court, and the conveyance of the legal estate is made, pursuant to the decree, by the parties entitled to it ; — aU equities being bound by the order to sell, so far at least as they are represented in the suit. But if there be no trust or power to sell, which the Court can execute, — including, of course, under this term any implied power to the Court to sell, arising from the necessity of executing some charges, as a charge of debts, costs (a), or the like, — then the Court has no jurisdiction to order a sale, and no sale can be made, unless all parties interested are smjims and consenting. And with respect to leases by the Court, the same prin- ciple applies ; the Court can only direct and approve a lease where there is authority to grant one. But, of course, if all parties interested in the estate are before the Court, and not under age or under any other disability^ then by their consent, the Court can sell or lease. But without either a trust, express or implied, which can be ■ executed, or else such consent as I have mentioned, the Court is powerless. As Lord Hardwicke expressed it in Lord Bath v. Lord Bradford (J), " A decree of the Court of Chancery does not give the right; but it is only made for execution of the trust or power given or conferred." (o) Mandeno ». M., iM mpra. (&) 2 Yesey, sen. 590. winding up of the administration. 343 Section 4. Of the Distribution of the Estate. With the above observations, therefore, I pass now to Distribu- the final payment, transfer, or conveyance, of the pro- thTp^^ief perty, to the persons ultimately becoming entitled to it i"*™°'®*' — a procedure, which of course by parting with the they are property, closes the administration — and which seems disabrnty. to caU for further observation, in relation, principally, or perhaps only, to the capacity of the persons thus becoming entitled. For if the claimant is neither an infant, nor a married woman, nor under mental in* capacity, nor out of the jurisdiction of the Court, the payment, transfer, or conveyance to him on his becoming entitled absolutely in possession, is simple and of course. But if either of the above disabilities 2. When exists, the property or share, if it be a fund in Court, „nXr to- is carried over to the separate account of the in- a^i^ity- capacitated person thus entitled to it, with liberty for him, or those representing him, to apply to have it paid out. And in the case of real estate, the former management is continued, subject to a like power of application for the possession or receipt of the rents. Let me take then the case, first, of an infant i. infanta : beneficiary. Until he is of age, he cannot have the ^^^^ °^ fond paid out, or possession of the land delivered, to bim ; and meanwhile, the effect of his property being in Court, or under administration ia the suit, is to make him, what is called a Ward of Court, subject to its directions, and the special object of its protection, s 2 24i THE ADMINISTEATION OF TEUSTS. Jurisdic- not only in property, but also in person. For when infants. once an infant becomes a ward of the Court, — a result which will ensue, not only where he is interested in property which is the subject of a regular suit for its administration, but also from the presentation of a petition, without suit, for the appointment of a guardian, and the allowance of maintenance out of any property of his which may be available for the purpose, — the Court has jurisdiction to direct the whole course of his education down to the minutest details, — the religious principles in which he shall be brought up, — the school to which he shall be sent, — and the person to whose care he shall be confided ; — and, of course, it includes in its supervision, the direction and management of his property, and the amount of the income proper to be allowed him. And if the in- fant be a female, it is a contempt to marry her without the consent of the Court, punishable by committal. That even where there is no property at all, the Court still has this jurisdiction, has indeed been maintained ; though, inasmuch as the jurisdiction has not in that case materials to act upon, its exercise is, for the most part, practically destroyed where this objection exists (a). However, in cases where the religious educa- tion of the child has been contested, the Court has frequently been applied to, notwithstanding the absence of property ; and in more than one instance, has got over or round the objection (6). (a) See Lord Eldon's judgment in Wellesley v. W. infra, p. 245, Be Fynn, infra, p. 247. (i) See infra, p. 247, 248. JURISDICTION OVER INFANT^. 246 The point as to how far, or in what way, property is requisite to enable the Court to act, has been re- ferred to by Lord Eldon in his judgment in Mr. Long Lord Welksky's Case, delivered in 1827 (a), in words which j^,dgment appear to be the foundation of aU the subsequent law J" *''® ^®'' ^ lesley case. on the subject. And as the judgment also embraces or refers to the other leading points just mentioned, — as, for instance, the origin of |Jie jurisdiction, — the power of the Court to control or interfere with both the father and the testamentary guardian in the bringing up of the child, — and to conduct such education by a guardian of its own, to the exclusion when necessary even of the father, or still more of the mother ; — an extract (6) from the judgment in question seems not misplaced. "It has been questioned," his lordship said, "whe- Gnardian- ther this jurisdiction (viz., to interfere between parent^ '^' and child) was given to this Court upon the destruc- tion of the Court of Wards (which, however, it is impossible to say could have been the case, when we recollect the nature of the jurisdiction), or whether it is to be referred to circumstances and principles of a different nature ; more especially, whether it belongs to the king, as parens patrice, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them. With respect to the doctrine that this authority (a) Wellesley v. 'Wellesley, 2 Boss. 1. (i) 2 Busa. 20 et le^. 246 THE ADMINISTRATION OF TEUSTS. Lord belongs to the king as parens patricB, exercising a juris- Eldon's . . J t_ -D judgment ; diction by this Court, it has been observed at the rJar, that the Court has not exercised that jurisdiction, unless where there was property belonging to the infant to he taken care of in this Court. Now, whether that be an dictionover accurate view of the law or not ; whether it is founded the persons on what Lord Hardwicke says in the case of Butler v. of infants "^ _ founded on Freeman, ' That there must be a suit depending relative ' to the infant or his estate ' (applying however the latter words rather to what the Court is to do with respect to the maintenance of infa,nts) ; or whether it arises out of a necessity of another kind, namely, that the Court must have property in order to exercise this Jurisdiction; that is a question to which, perhaps, sufficient consideration has not been given. If any one will turn his mind attentively to the subject, he must see that this Court has not the means of acting, except where it has property to act upon. It is not, however, from any want of jurisdiction that it does not and cannot ^ct, but from a want of means to exercise its jurisdiction : exercised because the Court cannot take on itself the maintenance of is none. (til i^^ children in the kingdom. It can exercise this jurisdiction usefully and practically only where it has the means of doing so ; that is to say, by its having the means of applying property for the use and main- tenance of the infant. " That such has been the doctrine of this Court for a long series of years, no one can deny. The law makes the father the guardian of his children by nature and by nurture. An Act of Parliament has given the father the power of appointing a testamentary guardian JURISDICTION OVEE INFANTS. 247 for them; one should think that the guardian so appointed must have all the authority that Parliament could give him ; and his authority is, perhaps, as strong The Court as any authority that any law could give. But it is ahove ]^ '^^' a century ago, since, in the case of the Duke of Beaufort *^?^° V. Bertp, the Lord Chancellor of that day, Lord child. Macclesfield, determined, that the statute -guardian was subject to all the jurisdiction of this Court. The Lord Chancellor in effect' said, ' I will not place the statute-guardian in a situation more free from the juris- diction of this Court than the father is in,' so that he applied the acknowledged jurisdiction over the father, as a justification for interfering with the testamentary guardian. The former jurisdiction he stated as the acknowledged law of the Court. And he went further, for he added, ' that, if he had a reasonable ground to believe that the children would not be properly treated, he would interfere, upon the principle that preventing justice was preferable to punishing justice.' " And Lord Eldon, as is well known, interfered to But the remove Mr. Wellesley's children from their father, j^jeif \g f^. though in that case, there was, of course, abundant dependent ° ' ' ' ofproperty. property, and the observations on that head were extrajudicial. But in Be Spence (a), Lord Cottenham, following Lord Eldon, laid it down that the cases in which the Court interferes, or, in other words, has juris- diction to interfere, for the benefit of infants, " are not confined to those in which there is property." So also the Lord Justice Knight Bruce, when Vice-Chancellor, in a case of Be Fynn (6), where the mother's relations (a) 2 Ph. 252. (J) 2 De G. & S. 457. 248 THE ADMINISTRATION OP TEUSTS. applied for the interposition of the Court to take children from the care of their father, on an alleged unfitness on his part to have the care of them, and in which there was no property, said, " No one has heard me say that property is necessary to give the Court juris- diction." Yet on the failure of any sufficient means wherewith the Court might educate the children, His Honour eventually dismissed the petition. However, in the case of Alicia Race in 1857, not reported, but in which the writer was Counsel, Vice-Chancellor Kindersley, took upon the Court the education of the child (a child at a charity school), directing her to be brought up in the Protestant religion of her deceased father, in opposition to the contention of her mother, a Roman Catholic, on an underia/cing given by cer- tain gentlemen to be answerable for the expenses of the education. I am not aware, however, that such an undertaking has in any other case been acted on by the Court ; and in Be Fynn (a) Vice-Chancellor Knight Bruce declined to proceed on that basis only. Allowance If property however there is, and a guardian is appointed, the next point is, the allowance of main- tenance to the infant out of his legacy, share, or estate, which is in the course of administration. And where the will or settlement expressly provides for maintenance, there no difficulty occurs, and the Court, as a matter of course, will allow or direct the amount of maintenance provided to be applied accordingly. But the Court will go beyond this. (o) UUmpra. of mam- tenance. MAINTENANCE OF INFANTS. 249 " Where a legacy," says Mr. Spence (a), " is giTen to a legitimate child by its parent, or by one in loco parentis, the Court will allow maintenance for the child from the death of the testator, though none is given hy the will, notwithstanding the legacy is contingent; for instance, to such of the testator's children as attain twenty-one." So that though nothing is given until majoritj% the Court, in the case of a child, will give the intermediate interest for its maintenance. And Lord Eldon has put the case even somewhat still more broadly. "Though the words of a will," said his lordship in Marshall v. Holloway (J), " do not authorise application of interest to the maintenance of infants, yet if the Court can collect before it all the individuals who may be entitled to the fund, so as to make compensation to each for taking from him part, it will grant an allowance for maintenance ; " but his lordship excludes, of course, the case of persons being possibly interested under the limitations, who may be still unborn, and whose rights the Court would take care not to prejudice in any allowance of maintenance to those already in being. Besides the guardianship and maintenance, the only Jnrisdic- remaining point which it concerns me to notice where the mar- infants are interested in property under administration, "^y^ is the jurisdiction exercised by the Court over the mar- infanta. riage settlements of its female wards ; but as this point will come under consideration when the Infants' Mar- riage Act is spoken of, I wiU not go into it here. (a) 2 Sp«nce, 185. \h) .2 Swanst. 4S6. 250 THE ADMINISTRATION OF TRUSTS. Disabmty I turn, therefore, now to what will be in effect the of cover- ture, last case I have to consider, viz., that where the person or one of the persons becoming entitled under the ad- ministration is a married woman. Lunatics, For, concerning the cases of lunatic parties inter- out of the ested, and parties interested being out of the juris- o™he °*'™ ™<'''«s of the causes which have led to its establishment, that the jurisdiction in question naturally ranges itself under the two main divisions or lines of legis- lation, differing very widely from each other both in principle and in effect, which have been already noticed. And the one of these classes of statutes, it i. statutes wiU be recollected, was described as consisting of Acts ^""s^b ° property of Parliament, which, like the Railway Acts and Trus- ^t" a'i]«'i- tee Eelief Acts, at once, and without bill filed or order 264 tHE STATUTOET ADMINISTBATION. made, place under the control of the Court for admi- nistration, some property which could not otherwise have heen administered without a regular suit or 2. Statutes several suits ; while the other class of statutes was adniiiSs"^ described as consisting of statutes simply conferring trative extraordinary powers on the Court for purposes of admi- powers. _ •' -^ . . nistration, as e.g., powers for enabling infant trustees to convey, and the like. At the point, then, at which we are now arrived, it will be convenient to enumerate the several Acts of Parliament now in force relative to the statutory administration before us, as they range themselves under these two heads ; and, First Divi- I, Under the first head, or that of statutes bringing property into administration, we have, — 8Viot.c.l8. 1. The Lands Clauses Consolidation Act, 1845, 8 Vict. c. 18. ss. 69 to 83 inclusive, being the portions of that statute contained, with the cases thereon, in Mr. Morgan's Edition of the Chancery Statutes and Orders {a). lo&ll 3. The Trustee Relief Acts, 1847 and 1849, also l^k\z^'' contained, with the decisions, in Mr. Morgan's book (6) ; Vict. c. 74. and which Acts, as they in fact supersede the enact- ment respecting infants' legacies in 36 Geo. III. c. 52, s. 33, wiLL render it unnecessary to dwell on the last mentioned Act. Second And, II. Under the second head, or that of statutes conferring special administrative powers, we have,— 13 & U 1. The Trustee Acts of 1850 and 1852. Vict. c. 60; T f ^^55 ^"^ ^*^°° ^^ ^ "^'' ^'^^ **'*■ ' ^^ ** *'*■' ^^^ ®^*" (i) Pages 58 et se^,, 2iid edit. ; 52 et leq., 3rd edit. THE STATUTES NOW CONSTITUTING IT. 265 3. The Infants' Settlement Act, 18S5. 18 & 19 3. The Leases and Sales of Settled Estates Acts, ^g ^ jq 1856 and 1858; an Act, however, this last, which is "^^104.0.120. somewhat of a mixed character, conferring special powers on the Court to sell and let, but which also brings to the Court for administration the proceeds of the sales. And, 4. The Law of Property Amendment Acts, 1859 22 & 23 , , „ „ „ • Tict. 0. 35 ; and 1860. 23&24 Vict. 0. 38. 366 THE STATUTORY ADMINISTEATION. CHAPTEE II. STATUTES CONFEEEING OE ENLAEGING ADMINISTEATIVE JUEISDICTION. Section I. The Trustee Relief Acts. The prinoi- I PROCEED BOW to treat in farther detail of the prin- Aots. ^ ciples and operation of the first of the two classes of Acts above mentioned ; and of them I take first the Trustee Relief Acts, as embodying the general prin- ciple of this class of enactments in its widest and most intelligible form. The first of these Acts was passed in 10 & 11 1847. Its title is " An Act for better securing Trust ■ Funds, and for the Relief of Trustees," and its general principle may be stated as foUows. If a trustee have money or stock in his hands which he is advised or per- ceives that he cannot safely administer without the direction of a Court of Administration, he shall be at liberty to pay it in at once into the control of the Court of Chancery, without any of the preliminary machinery of biQ, answer, decree, petition, or evi- dence (except only a short affidavit stating the amount of the fund, the nature of the trust, and the names of the persons he believes to be entitled), and thereupon THE TRUSTEE BELIEF ACTS. 267 the Court will treat the matter as if all the above preli- minaries had, in fact, been gone through, — and as if the fond had been paid into Court in the suit which would necessarily have been instituted if "every form had been complied with, — and will administer and distri- bute it accordingly. The principle, in short, is merely that of dispensing, in favour of trustees, with the first half of the administration suit, and thus enabling them at once to step in medias res, and to commence and finish with the closing and most material act of the administration, viz., the distribution. And this is effected by a short enactment in one section, to the effect that all trustees, executors, and others holding money or stock " ii/pon any trust whatever," or the major part of them, may pay or transfer the same into the Court of Chancery in trust to attend the orders of the Court, and the receipt of the proper officer for the money or stock paid in is to be a full discharge to the trustee or other person so paying it in. But this enactment, it must be observed, though it in terms mentioned " the major part" in the case of a plurality of trustees, was found to be ineffectual to enable the majority to take advantage of the Act, if the minority or even a single trustee refused to join in the transfer, or were incapacitated from making it by infancy, unsoundness of mind, or the like ; and the Amend- ment Act of 1849 was therefore passed, enacting that 12 & 13 " if for any reason the concurrence of the" whole body "could not be obtained" to the transfer into Court, the majority might obtain an order of the Court, which should enable a valid transfer to be made by the major 268 THE STATUTORY ADMINISTEATION. part of the trustees, without the concurrence of the rest. Now it might he thought at first sight that on a simple enactment of this sort, the object and prin- ciple of which are ahke obvious and immistakable, little or no question could arise. Decisions The fact, however, was — perhaps it could hardly ™ ® ° ■ be otherwise — that most serious questions did very speedily arise, mainly as to the extent of the jurisdic- tion conferred by the Act, what it authorised to be done, and what it did not, on the simple proceeding by petition which it directed to be taken. As to the One of the earliest cases in which these questions Sef"''"" ^^^^ ^^^^^^ ^^^ ^^^^ °^ Bloye's Trust {a), decided by them. Lord Cottenham in 1849, and afterwards appealed to the Bloye s Trust. House of Lords, the particulars of which will explain at once the nature of the difficulties to which I allude. In that case, a person entitled in reversion to a share of residuary personal estate, mortgaged it (by way of annuity), with a power of sale, and the mortgagee sold the reversion under the power. Now, on this sale, the solicitors of the mortgagee exercising the power became the purchasers ; thus in effect laying the trans- action open to the objection that it was a sale by a trustee for sale to that trustee himself ; for the agents of the person selling under the trust were themselves the purchasers. The transaction, too, was open to further objection in a Court of Equity, as a sale of a reversionary interest, in which case it is incumbent on (a) 1 Mac. & 3. 488, and afterwards in the House of Lords on appeal, iab nom. Lewis v. Hillman, 3 H. L. C. 607. THE TRUSTEE RELIEF ACTS. 269 the purchaser, if he intends to support the transaction, Bloye's to he prepared with evidence that the sale is at full '^''^^^' value. Under these circumstances the fund fell into possession, and the trustees, finding the above objec- tions to exist as to the title to it, refused to pay it over either to the purchasers at the sale by the mortgagee, or to the original mortgagor, and transferred it into Court under the Act. The question, therefore, arose, on a petition pre- sented for payment of the fund, by the solicitors claiming as purchasers under the sale above men- tioned, whether there was jurisdiction under the Act of Parliament to dispute the assignment to the peti- tioners — whether, in short, a bill must not be filed to set aside the sale and assignment to them (as being a sale of a reversionary interest made by a trustee to himself), before the title to the fund could be cleared, and the original owner, a married lady, could have an order for payment of it to her husband and herself. Lord Cottenham, and afterwards the House of Lords, held that it was unnecessary to take any such circuitous proceedings ; and that the Court had juris- diction on petition under the Act to declare the deed of asdgnment to the purchasers invalid, and to pay out the fund to the persons who in that case became entitled, and the Lord Chancellor made, and the House con- firmed, an order accordingly. Lord Cottenham, also, in giving judgment, made the following observations on the policy and operation of the Act, showing both the nature of the objections raised, and the extent to which they were valid : — 270 THE STATUTORY ADMINISTRATION. Lord Cot- "I must say a few words as to the proceedings judgment Under this Act of Parliament. I know that some par- Tr^t'^'' ^ ti^s, who are not very ready to adopt rules, however clear they may he, have much complained of the Act, as destrot/mg the jurisdiction of the Court, and giving the Court the poieer of doing that without an investigation of the merits, which could not have been done if such an Act had not been passed. There cannot be a greater mistake or misrepresentation than that. All that the Act of Parliament has done is to facilitate the mode of getting money into Court; it saves the expense of a suit in many cases ; it saves also all those proceedings that are necessarily expensive and productive of delay, where, after a bill filed and on their answer, trustees are permitted to pay money into Court. The money being in Court under this Act is just as if it were there in any other form. Now, suppose the money was paid into Court in a suit, and the right to the property depended on a future contingent interest. In such a case the parties would be at liberty to apply when the contingency happened. If it. was a matter of great doubt or difficulty, the Court would direct a bill to be filed; but if it was a matter which the Court could safely dispose of on petition, it would, do so in order to save the eapense of a suit. It makes no difference how the money comes into Court; the mode of adjudicating on the rights of the parties remains the same" (a). In other words, the dif&culty complained of would have existed just as much, and neither less nor more, [(a) 1 Mac. & a. 499, 500. THE TEUSTEE RELIEF ACTS. 271 if the fund had been paid into Court in a suit regularly Payment instituted for the administration of the estate of the ^nder*th^ testator, of whose assets the fund originally formed ^'^' part. If a further special suit would have been neces- sary then to determine the validity of the intermefliate sale, so it would now. If it would not have been necessary then, neither would it now. And both Lord Cottenham and the House of Lords decided in effect that neither in a suit nor under the Act was any further proceeding necessary. The effect of paying the fund into Court is, in short, analogous to payment to discharge the trustees, and to enable the parties into Court beneficially entitled to apply for it. Just to the same^^^^^^. extent and no more, as would have been the case if the ™|stration of the same amount had been paid into Court in a suit for the tmat. administration of the trust. Thus if a sum of money, say 500/., on account of residue, The two has been paid into Court in an administration suit by pared. the executor or trustee, this is a good discharge, so far as regards a demand against the executor or trustee for the like amoxint in respect of residue received by him. And so it is under the Act ; a bill will no longer lie for the amountpaid in (a). But as in the suit the sum paid in is no answer to a further liability, if any exists, — as it may, for instance, in respect of a breach of trust committed (a part of the estate misappropriated, or the like), by such executor or trustee ; — so the same rule holds on a payment into Court under the Act. Thus, Liability in Attorney-General v. Alford {b), a trustee of charity fond paid in. (o) Goode v. West, V.-C. T. 9 Ha. 878. (b) 2 Sm. & G, 488, and 4 D. M. G. 843. 273 • THE STATUTOET ADMINISTEATION. monies, under a will of which he was sole executor^ had concealed the trust and retained the money ; and on the matter heing discovered, he paid a principal sum (which he alleged to be the right amount) into Court undfer the Act. But this was held not to discharge him from his accountability for the breach of trust. The sum paid in, in short, will be set oj0f against the liability, but otherwise that liability remains. Court trus- So again, on payment into Court in a suit, the Court fund paid bccomes trustee of the fund (a), and the trustee paying a'suit"* ^^ ^^ ^ effect no longer trustee quoad that amount ; and under though, until the ultimate distribution of the fund, and the Act. » . n ^ payment of it out of Court to the parties interested, he is still retained as a party defendant, and is bound to watch a,nd see that the proceedings for its final appli- cation are regular. So it is under the Act. By the payment into Court, the trustee paying in ceases to be the trustee any longer. Vice- Chancellor Wood in lie Williams' Trust (J), held that by paying into Court under the Act, a trustee retires from the trust and refuses to act, so that- a power' may be exercised for filling up the trusts. Yet in proceeding under the Act, the trustee is always served with the application for payment and distribution of the fund, and he is bound to see that its application is properly directed. Case made So where, if the money were in Court in a regular to the trust, administration suit, some further proceedings would be necessary besides a petition to obtain the transfer of the fund, — as if a claim were made altogether adverse to (a) See p. 32, supra. (6) 4 K. & J. 87. THK TRUSTEE RELIEF ACTS. 273 the trusts of the instrument under administration in the suit, — there the same course would be necessary if the money were in Court under the Act. And this was, in fact, so decided in the case of Fozard's Trusts before the Lords Justices (a), though "Wood, V.-C. (b), had disregarded the objection. This case is to the effect that if any property — say, a sum of stock — is directed by a settlement to be held upon certain trusts, under which A. B. and others take conflicting interests, and the trustees of the settlement there- fore pay it into Court under the Act, and a claim is then made adverse to the settlement altogether-, then some separate and independent proceeding must be taken to dispose of this latter claim, before the fund can be admiuistered under the trusts of the settle- ment. And such was the decree of the Lords Jus- tices. And in a case which very recently occurred (c), where a legacy was paid into Court under the Act, and afterwards a settlement was executed, which by mistake, and contrary to the intention of the parties, affected the fund, the Master of the Eolls held that a separate and independent proceeding was necessary to rectify the settlement, before the fund could be administered independently of it. . It was not, however, until 1857, ten years after the Cgj^g passing of the original , Trustee Eelief Act, that the analogy I have been dwelling on between a fund paid (a) 24 L. J. Ch. 441. (J) 4 K. & J. 233. (e) Ee Malet's Trust, 8 Jur. N. S. 226 ; but see Ee Morse's settlement, 21 Bear. 174. • T 274 THE STATUTOET ADMINISTKATION. into Court for adiministration in a suit and a fund paid into Court under the Act for the like purpose, was established in its completeness, by a decision that the Court had jurisdiction, where money was vexatiously and improperly paid into Court under the Act, to make the trustee pay the costs of it. For it was at first thought that when money was once in Court under the Act, the jurisdiction of the Court over the trustee could only be spelt out of the words of the Act ; and as the Act in terms says nothing about costs, it. was thought that a trustee, however oppressively using the Act, eould not be made to pay the costs, though he most unquestionably might be so made to pay if he had oppressively resorted to a procedure by bill. In the case of Woodbum's Will (a), however, the point was otherwise decided by the full Court of Appeal, and the complete analogy was thus established between pay- ment into Court under the Act in the matter of any trust, and payment in a suit for the regular adminis- tration of the same trust. Wood- " The obj ect of this Act" (6) , said Lord Justice Turner ' in that case, " was to enable trustees to pay money into Court in a summary way; but I cannot agree in thinking that it was meant to exonerate them from any liability to costs, except so far as it necessarily has that effect by making the proceedings less expensive. It has been contended that cases under this Act fall within a statutory jurisdiction, and not under the ordinary juris- ' diction of the Court ; that the statute creating the juris- (o) 1 D. & J. 333. (6) 1 D. & J. 361. THE TEtrSTEE BELIEF ACTS. 275 diction says nothing about costs, and that the Court, Jurisdio- therefore, has no jurisdiction to order the trustees to tli™A°tsf— pay costs. To this I think there axe two answers : the ^°°*^' first is that the express words of the statute authorise such an order, for that an order on a trustee to pay costs is within the meaning of the Act an order in reject of the trust funds. The second answer, and this may explain why the Act dpes not in so many words mention costs, is that the fund paid into Court by the trustee is to he paid in in trust to attend the orders of the Court, and therefore becomes subject to the general juris- diction of the Cowt, which includes a power to order the payment of costs." The last reason here given, viz., " that the fund becomes subject to the general jurisdiction of the Court," assumes, it will be seen, in the broadest possible manner, the identity in point of extent, of the juris- diction on a payment into Court in a suit, and on pay- ment in under the Act. And this identity of juris- diction has been since further illustrated, in another point of view, by the decisions establishing that an infant interested in a fund paid into Court under this In the case Act is a Ward of Court, just as would be the case if the money were in Court in a suit. Of these decisions one of the earliest was that of Modge's Settlement (a), in 1857, in which the Lords Justices " were of opinion that the effect of the Trustee Relief Act was, as stated in Bloye's Trust" (already referred to), "to place the par- ties in the same position as if a bill had been filed, and (o) 3 K. & J. 218 ; 3 Jur. N. S. 860. 1 2 276. THE STATUTOET ADMINISTKATION. the suit had come on for further consideration, after a pai/i ment into Court by the trustees, and therefore that the infant was a ward of Court." Costs of The result is, that as in other points so with respect tration nn- to costs, the Same rules obtain which obtain in a suit, —general ^'^■' *^^* *^ * general rule the costs of the adminis- "^^- tration come out of the fund ; but that where the assist- ance of the Court is needlessly or oppressively resorted to, then, as well under the Act as in other cases, the trustee will be deprived of his costs, or have to pay them personally, as the case may require (a). And as between tenant for life and remaindermen, the rule is that the costs of the tenant for life come out of the income, and of the remaindermen out of the corpus {b). When the When then, lastly, and in what cases, may a trustee teaoted on avail himself of this short and summary administration bm M^ * by statute, and when must he file a biU ? To this it may be answered that a trustee may, and therefore, practically, must, resort to the statute, and not proceed by bill, in aU cases whatever in which the trust estate in his hands consists wholly of money or stock, so as to admit of his paying it into Court. If this is not the case, of course there must be a bill as to those parts of the estate which are not money or stock, and that biU may as well include the whole. But it is to be observed, that if there be in the case no real bond fide doubt, either of fact or law, requiring the solution of the Court, then neither proceeding is necessary or justifiable, and the trustee wUl, which- (o) Infra, p. 277, u. (a). (b) Ke Whiting, V.-C. W. 7 Jar. N. S. 754. THE TEDSTEE EELIEF ACTS. 277 ever way he proceeds, have personally to pay the costs of it (a). Such, then, is an outline of the jurisdiction created Beneficial by this Act of ParUament, a jurisdiction which,— though tteluris- to some extent, perhaps, liable to abuse, from the faci- ^''^°'^ lities which it in effect affords to trustees anxious to escape from their just liabilities, by inducing the bene- ficiaries to accept what is j aid in, and not incur the risk or exp'ense of further and hostile proceedings, — has yet, I suppose, extended the most useful and bene- ficial protection to honest trustees bond fide labouring under the responsibility of an ambiguous or disputed trust, yet holding too smaU a fund to justify them in an appeal on slight grounds to the protection of the Court. To such persons (and their ca,se is a hard one), the Act has undoubtedly been a real boon ; and the extent to which it has been held applicable, and the liberality with which in general it has been construed by the Judges, have much enhanced the advantages of it. I must observe, however, that the operation of the Purohase Act seems to be restricted by a decision in Ee Buckley's ^^estate Tnists (b), to cases where the trust is actually consti- 7^^?^ ■^^*" ^ ' ■' . in the Act. tuted. ■ In that case real estate had been purchased, subject to a charge of legacies created by a former owner of the estate. The purchaser paid the money covered by the charge into Court under the Act, and (a) Instances of this will be found (under the Act), in Knight's Trusts, 27 B. 45, and Cater's Trusts, 25 B. 361 ; while in Wyllie's Trusts, 28 B. 458, the trustee was held justified in resorting to the Court through the Act of Parliament. (J) 17 B, 110. 378 THE STATUTORY ADMINISTRATION. petitioned to have it- applied accordingly ; but Sir J. Eomilly, Master of the Rolls, held that such a case was not within the Act, and ordered the money to be paid out again, and the petition to be dismissed with costs. It must be observed, however, that Vice-Chancellor Wood, in Cox v. Cox {a), seems to express an opinion that a purchaser of real estate would be a trustee for the vendor, of his unpaid purchase money, within the Act. And in a very recent ease of Re 'Sall{b),\h.e same learned Judge has held that an insurance com- pany is entitled to pay disputed policy money into Court, within the provisions (A the Act. Section 3. I%e Lands Glauses Consolidation Act. The prin- Having disposed, then, of the jurisdiction under the Act. Trustee Relief Acts, I next come to the only other statutory jurisdiction of the Court, which I have 8 Viot. c. classed in the same category, and which will not now 18. require many words to dispose of it; viz., the Lands Clauses Consolidation Act. For the sections of the 36 Geo. III., c. 53, as to infants' legacies, are ia fact superseded by the Trustee Relief Acts, under which last Acts it is now matter of every-day practice to pay into Court legacies belonging to persons, who from being under age, are incapable of giving a receipt for them. The Lands Clauses Consolidation Act, then, to » (a) 1 K. & J. 254. (5) 10 W. E. Sr, THE LANDS CLAUSES ACT. 279 which I now come, differs from the Trustee Relief Acts only in the narrower scope of its subject matter, and in the consequently more specific character of the administration under it. But its principle is the same. Identical It is, in fact, a Trustee Eelief Act for the benefit Tf t'heTruV of the railway companies, and the other similar com- *?® *^^'®^ panies within its scope. Such companies take a piece of land : the owners of that land are — some under dis- ability, — some beyond seas, — some corporations, and the Eke; and there are contingent and future rights which will have hereafter to be provided for. The company by taking the land becomes a trustee of the purchase money for the owners of all these various interests. It is therefore allowed to discharge itself by paying the amount into Court. But on this being done, the result is not quite the Difference same as under the General Eelief Act, There the appli- pUoatiaa of cation of the fund is left to the ordinary rules of the *^^ ^"'"^■ Court, which apply, as we have seen, just as they would do in a suit instituted for administration of the trust. But in the case of the railway and other companies, it is known beforehand, from the nature of the property paid in (which is always purchase money or compensa- tion money, resulting from land), that there are certain purposes, — to some or one of which, in all probability, this money will be applicable, — ^which may be definitely named beforehand. These purposes are accordingly Objects of specified in terms in the Act, as purposes to which, under*the" or some or one of which, the money may be applied by ■*^<'*' the Court, on the application of the parties interested. And these purposes are, — 1. The purchase or redemption l. The ra- 280 THE STATUTORY ADMINISTEATION. demptioa of the land tax, or discharge of any deht affecting the ofLandTax , , . ordis- land, m respect of which the money may have been incum-" paid, or other land settled to like uses, branoes. 2. The purchase of other land to be settled to like chase ^of""^' ^^^^ > ^^^^ restoring to the parties their own land in other land ^ different place, perhaps contiguous to the existing estates. 3. Eesto- 3. In the case of buildings taken or injured, the ration of . . i ■ i huildinga. removing, restoring, or replacing them. 4. Payment 4. And lastly, the payment to any person or persons beo^ming^ who may become absolutely entitled, and may elect to soittef *^' *^^^ *^® money in specie {a). In the case of monies paid in under this Act, there- fore, the Court is in effect restricted in the administra- tion thereof to certain specified courses of application ; though at the same time the clauses which define this application in fact confer upon the Court powers in the disposal of the money which it otherwise would not have had. For without this authority, the Court must, I suppose, have retained the fund, as money or stock, and could only have applied the income and distributed the capital in the ordinary course, according to the trusts under which the parties might have been entitled. The legislature, however, would seem in prescribing the application of the money in the way I have men- tioned, to have had in view the object of compelling these railway companies to place the landowners in sub- stantially the same, or as good, a position as they were in before ; compelling the companies not only, as will («) See 8 Yiot. o. 18, s. 69. THE LANDS CLAUSES ACT. 381 be seen, to pay the purchase or compensation money, but also at the option of the owners, to reinvest it, at the company's expense, in other lands ; or (if preferred by the owners) in liquidation of incumbrances, or in restoration of buildings. And hence, too, the costs of this species of statu- Costs of the tory administration do not follow the ordinary rule, tratim?' but are specially thrown on the company which is con- sidered, and justly considered, to have occasioned them (a); subject, however, of course, to certain restric- tions, intended to guard against abuse. Under these circumstances, and the administration Effect of being thus special, a point of some importance occurs in aiou^oper." it, with which this brief notice of it may be fairly con- ^'^^ ^^ ^^^ eluded. This is the effect, as regards the owners of the land taken by the company, of the compulsory conversion of their land into money, and the payment of that money into Court under the Act. On this Held to be point a difference of opinion appears to exist between i,y y!^. ^ the Chancery Judges ; for in Ex parte Cramer (b), Vice- S'"*'*' Chancellor Stuart, following the high authority of Lord Justice Knight Bruce and Vice-Chancellor Parker, has held that where money is thus paid into Court, as the produce of real estate converted by the com- pulsory powers of these (railway and other similar) Acts, it remains in Court subject to the right of the parties interested in it to have it reinvested iu land, and is therefore stiU impressed with the quality of " real estate." And His Honour accordingly decided (o) 8 Yiet. e. 18, s. 80. (J). 1 S. & G. 33. 382 THE STATDTOEY ADMINISTRATION. that where an owner of such money had died leaving a will of personalty, but intestate as to realty, the anA V.-C. money passed to his heir. So Vice-Chancellor Kinder- Kindersley. ^^^^^ ^ -^ Sarrops' Estate {a), held that money thus situated, being realty, was not forfeited to the Crown by the felony of the owner, and on his return from transportation it was paid out to him. Held to be On the other hand, Lord Cranworth, in Ex parte tyTwd'^ Flamank (6), took the opposite view, which is supported Cranworth jjy the decision of Sir J. Eomilly, Master of the Eolls, and Sir *' •' ' John Eo- in Re The Manchester and Southport Railway (c). As the conversion is compulsory, it would seem the sounder view, that until some election is made by the owner, the property remains land ; but at present, if the owner of a revei:sion in land thus taken and dealt with, should die before it falls in, the result is that bodi his heir and executor must be present on the application to take the money out of Court. (a) 8 Dr. 726. (6) 1 Sim. N. S., 269. (c) 19 B. 365. CHAPTEE III. OF STATUTES CONFEEEING ADMINISTEATIVE POWERS. There now remains for consideration that branch statutes only of the Statutory Administrative Jurisdiction, by ^ °g l^^ virtue of which certain special powers are conferred on b'anoi'.of the juns- the Court for the purposes of its administration. The diction. group of statutes composing this class comprises, as I have already mentioned, the following Acts of Parlia- 13 & 14 . . Vict. c. 60. ment, viz. : — 15 ^ ig 1. The Trustee Acts, 1850, 1852. ^'''*- "■ ^^■ 2. The Infants' Settlement Act, 1855. Viot. o. 43. 3. The Leases and Sales of Settled Estates Acts, 19 & 20 Vict.c.l20. 1856, 1858 ; and 21 & 22 4. The Lawof Property Amendment Acts,1859,1860. J'"*" "' ''''• I will take them in the order I have just used, and Vict. e. 35. wiU commence with the Trustee Acts. Yiot. e. 38. Section 1. The Trustee Acts. These Acts, as has been already mentioned, are the present fruits of a course of legislation commencing in the reign of Queen Anne (a), and continued through suc- (o) 7 Ann. c. 19. 284 THE STATUTORY ADMINISTEATION. cessive improvements made in the reign of Geo. II. (a), Geo. IV. (5), and WiU. IV. (c), the statute of which last reign was the work of Lord St. Leonards, and was long identified with his name, until, in the year 1850, the whole of the previous legislation was consolidated and amplified under the care of Mr. Headlam. The Act thus produced, viz., the 13 & 14 Vict. c. 60, is that now in force under the title of " The Trustee Act, 1850," and it has heen since in some respects amended and explained by the 15 & 16 Vict. c. 35, passed in 1853, and entitled " The Trustee Extension Act." The object and effect of these Acts is, shortly, this ; viz. Powers con- — To confer on the Court of Chancery special statutory ferred on the Court; poWCrS : — 1. Of con- 1. Of conveying or vesting trust property, in cases in which, by reason of certain disabilities or other impedi- ments, such a conveyance or transfer by the trustee personally is impracticable ; and 2. Of ap- 2. Of appointing n&^ trustees, in cases where such disability or impediment to the transfer, as is above referred to, may have already made it necessary to apply under the Act. state of the How is it, then, that these powers become necessary ? neoesli-"' ^^"^ being necessary, what is their extent and applica- tated the tion ? To answer these questions it will be desirable creation of these to refer briefly to the state of the law independentiy of the Acts of Parliament I am speaking of. It may be noted then, that it is, and ever has been, one of the (a) i Geo. 11. c. 10. (5) 6 Gbo. IT. e. 74. (c) 1 WUl, IV. e. 60. THE TRUSTEE ACTS. 285 ordinary incidents of an administration of trust property Under tbe by the Court of Chancery, to appoint, in the admini- tneap-' stration suit, whenever requisite, fresh trustees to carry 0^06™™* on and execute the trust. Such a step is, in fact, a trustees in , . . , tli6 suit a necessary part of the administration of the trust, part of the Whether the vacancy in the trust be occasioned by adminS death, or by voluntary retirement, or absence out of the *hg*trnsf jurisdiction, or the like event external to the suit, or whether the vacancy be made by the removal or dis- charge in the suit of a former trustee for misconduct or other cause, the Court of Chancery, in the regular course of the administration, and as a part of that administration, fills up the trusteeship. So, in like manner also is it part of the same administration to discharge effectually a retiring trustee, and to remove a delinquent one. But in the case of delinquency, if But the re- the charges made against the trustee are contested by unwilling him, and he in fact disputes his removal, of course no *™^*^^^"^' valid appointment can be made in his place, until he is t^^e previ- ous decision first effectually removed, by the decree of the Court, on of a con- a regular hearing of the question thus at issue. So, Jgue. also, if a person holding trust property disputes the fact ^"^ so too if the trust that there is a trust, and a bill is filed in consequence is dis- .to establish that trust and administer it, here the ^us^t be •Cdurt, after a regular hearing, decides this question ; ?[-^^^f *" and if the trust is proved, declares it accordingly (a). And afterwards, if it be desired, the Court, as part of the administration, appoints a new trustee of the pro- perty in the place of the person who has thus impro- (a) See Ee Bai-t, 9 Ha. 289. 286 THE STATUTORY ADMINISTRATION. perly repudiated the rights of the real owners. But in all these appointments of new trustees, it is a further and after- obvious and necessary part of the administration to ^mkiltra- complete the transaction by transferring to the trustee tionia newlv appointed the trust property in question, and completed. ./ x x declaring the trust thereof accordingly. Or if the trust is one ripe for immediate execution, and no further trustee is needed, then it becomes necessary to transfer the trust estate at once to the person or per- sons beneficially entitled to it, and that is accordingly ordered also in the like manner, as a regular part of the administration. Impedi- Such, then, being the ordinary course of the Court mentspre- . , . .... Banted by m this matter, as pursued in a regular smt, an insuper- Hiity of the ^^^^ difficulty nevertheless arose in the execution of it, trustee. jf ti^e disability of infancy or lunacy occurred in the person in whom the property happened to be vested ; or if he were dead, without representative, real or per- sonal, as the case might be ; or if he were out of the jurisdiction or could not be found. The Court might, indeed, in such a case, appoint a new trustee of the property in course of administration ; but it could not, after so doing, transfer that property to the trustee thus appointed. Neither, if no trustee were needed, could it transfer the property to a beneficiary. For the infant or lunatic could not convey in obedience to the order of the Court; nor could a conveyance or transfer be enforced or obtained, if the trustee were dead without heir or executor or administrator, as the case might be, or were out of the jurisdiction, or could not be found. So, also, if a trustee absolutely refused THE TRUSTEE ACTS. 287 to transfer or conTey, being competent to do so, the Court might send him to prison and keep him there ; but if he continued obstinate it could not make him convey. To meet these difficulties, then, it was that the Trustee Acts were invented. They gave powers to the Court which, in the several B^medies supplied by cases I have just put, enabled it to transfer trust land the Trustee or trust funds itself, and without anybody's help. The machinery of the early Acts, indeed, was, — and it is " still preserved in the modern Acts for some purposes, as an alternative and optional method of procedure, — for the Court to appoint some person to execute the conveyance or transfer required, in the stead of the person absent, or incapacitated, or refusing. But now the Court by its own order can vest the property at once (a). And the Court is empowered to make these Vesting ... . , orders. orders on petition without suit. And thus was accom- plished the first great object contemplated by the passing of the Trustee Acts. But after this power of vesting was thus conferred, Appoint- " /. 1. mentofnew a further need was also felt. It was often found, trustees. when an application was necessary imder the circum- stances already mentioned, for a transfer of the trust property under the powers of the Act, that the means of appointing a new trustee to take the transfer were wanting; or at all events a regular suit was neces- sary before such an appointment could be made. For instance, there might be a will or settlement, with no power therein of appointing new trustees by writing (a) See post, pp. 290-1. 388 THE, STATUTORY ADMINISTEATION. or deed, or at all events none which could be exercised. And thus a suit became necessary, because no such appointment could otherwise be made; and then a further petition under the Act had to be presented to obtain the necessary transfer of the estate to the trustees thus appointed. To obviate this circuity, therefore, the Acts were extended, and the second and further power which I . have above mentioned was added to the powers already conferred on the Court — a power, viz., of appointing, also by petition, in • the cases to which the Act already applied, a new trustee or trustees of the property to be dealt with. Twofold Thus, then, we arrive at the twofold power which I have T)0W6r con* ferred on already specified as conferred by these Acts on the Court. the Court: -piist, they supplied powers which the Court had not ing trust before, either in a suit or otherwise, of transferring and UsTrders.^ vesting trust property, in cases where it was otherwise wholly impracticable to get the conveyance or transfer required ; and, 2. Ofap- Secondly, they extended these powers so as to pointing ^^ j , . _ , ne-wtruB- enable the Court to do on petition, what it could have petition, ^one before, but only in a regular suit, viz., to appoint new trustees in such cases as those just mentioned, in the manner I have mentioned already. But here the necessity for statutory interference stopped ; and here accordingly, as it has been now settled and decided, but with the slight qualification which I shall presently mention, the Acts stop also. Biilneoes- Thus, the ordinary power of the Court, in a suit to remove instituted for the purpose, to remove a delinquent a trustee trustee, or even a trustee simply unwilling to retire, THE TRUSTEE ACTS.' S89 and to appoint a new- one in his stead, being not a delinquent power necessitated by or arising from the existence of any such disabilities or impediments as I have men- tioned, and which require indispensably a statutory solution, is not included in the powers which these Acts enable the Court to exercise. And for this pur- pose a bill is still necessary. Such a power, indeed, would ra any point of view, Jurisdio- have been inconsistent with the policy of the Acts; tjj^^^t/'^ which are confined to cases purely of administration, ^y";% "d- '■ " ' ministra- as distinct from contentious matters ; and it would tive, and also have been attended with other inconveniences, tious. which are well pointed out by the Lord Justice Turner in the recent case of Me Blanchard (a) ; — a case in which the Lords Justices declined, on the ground of want of jurisdiction, to sanction an order made by Vice-Chan- ceUor Stuart, removing, on petition under the Act, a trustee who was alleged to have repudiated and refused to execute the trust, and to have otherwise miscon- ducted himself (6). So, again, where the fact itself of the trust is in dis- if trust is pute, and has consequently to be established by decree tlins still against the person holdiag the property, the power "^cessary. of appointing a new trustee under it, even though the present alleged trustee be an infant or otherwise inca- pacitated, is one which involves in its exercise matter (o) 9 W. S. 647. (5) See also Ee Bridgman, by V.-C. Kindersley, 8 W. E. 689, vhioh is a similar decision on the stronger provisions of the Bankruptcy Acts, in the case of a bankrupt trustee who had otherwise misconducted himself, but neyertheless refused to retire. 290 THE STATUTOEY ADMINISTEATION. of a contentious nature, — ^the decision of a disputed issue, — and the Trustee Acts therefore do not apply to the case, or enable either a vesting order or a new appointment to be made, or not at least until the trust is established by decree. And on this point also we have the authority of a decision of Lord Justice Turner, in the case of Re Burt {a), in which that learned Judge as Vice- Chancellor, declined to make, on petition under the Act, an order which would have the effect of establishing a disputed trust, though the alleged trustee was an infant. A brief reference, however, to the scheme and actual contents of the Act of 1850 will best illustrate the sketch I have attempted of the policy of these Acts, of the principles which they proceed upon, and of the limits and scope of the jurisdiction they confer. 13 & 14 The Trustee Act of 1850, then, which extends to g '2 ■ "■ ' interest in real estate of every description, and also to stock, shares in companies, debts, and other choses in action, and is made expressly applicable to implied and constructive as well as to express trusts, commences with a series of enactments applied successively to the following cases, viz. : — Sects. 3, 4, 1. Lunatic trustees and mortgagees, or trustees and ' ^° ■ mortgagees of unsound mind, though not so found by inquisition. Sects. 7, 8. 3. Infant trustees and mortgagees (6). Sects. 9, 10, 3. Trustees resident out of the jurisdiction of the 11 12 22 ' ' ' Court, or who cannot be found. (a) 9 Hare, 289. (6) See also 15 & 16 Vict. c. 55, s. 3. THE TKUSTEE ACTS. 291 4. Trustees deceased, concerning whom it is un- Sect. 13. certain which was the survivor. 5. Trustees of whom it is uncertain whether the Sects. 14 survivor is living or dead. *" 6. Trustees who may have died without heir; and Sect. 15. 7. Persons unborn who will become entitled, subject Sect. 16. to a trust. And the Act empowers, in the case of the trustees or mortgagees who are lunatic or of unsound mind, the Lord Chancellor sitting in Lunacy (in effect the Lords Justices), and in all the other cases I have mentioned, the Court of Chancery under its general jurisdiction, to make vesting orders applicable succes- sively to landed interests, and to stock and choses in action held by trustees respectively thus situated, in favour of such persons and for such estates and in such manner as the Court may think fit. And a like power Sect. 19. is then conferred on the Court, in the case of a deceased mortgagee who has been paid off, and whose heir or devisee is thus a constructive trustee for the mortgagor; and also in the case of trustees of land, stock, or debts 15 & ic who, after being required so to do, refuse or neglect to s^'^i^\ 5'. transfer the stock, convey the land, or get in the debts, i? ? -^^ „ - ' o \-uA. 0. 60, or to receive and pay over the income for the persons ss. 23, 24. thereto entitled. In aU these cases the Court has power, by its own order, on an application, in some cases necessarily ex parte, simply to transfer the pro- perty in question to the parties entitled (a). (a) The Court is also empowered to apply the machinery of the Act to carry into effect partitions, exchanges, and contracts, ordered by the Court. See section 30. u 2 S93 THE STATUTORY ADMINISTRATION. Two classes This, then, is the first great division of the Act, and confemd it confers, in the widest way, and in every possible I'^'of dt-°*' ^^^^' ^^^ ^^^^ °^ *^® *'^° classes of powers which I have vesting mentioned as forming its object, viz., that of simply perty. taking the trust property out of the incapacitated, absent, or recusant, trustee. 2. Of ap- Upon this there follows a wide and sweeping section, of'new^" viz., the 32nd; the scope and object of which is to seef f' confer the second class of powers I have mentioned, viz., of appointing new trustees. And this section, as amended by the 9th section of the Extension Act of 1852, enacts as follows, viz., " That in all cases what- ever, where it shall be ea^edient to appoint new trustees, and it shall be found inexpedient, difficult, or imprac- ticable so to do without the assistance of the Court of Chancery, it shall be lawful for the Court to appoint . them by its order, whether there be any existing trustee or not at the date of the order.'' Sections These words, of themselves, seem wide enough to em- ' ' brace every conceivable case. But the Act goes on, in section 33, and provides further " that such new trustees shall have all the same powers as if appointed regularly in a suit; " and in section 34, " that the Court, when- ever it appoints such trustees, may also make a vesting order in their favour." And all these powers, of both classes, the Act enables to be done on petition, without suit. The statu- Now with respect to the first class of powers thus con- of'restilg" ^^^^^^^ ^i^-j powers of vesting estates — of taking them estates, out of incapacitated persons, or otherwise as above their objeBt . , and poKoy mentioned, and vesting them in new trustees, or in the obTious. THE TRUSTEE ACTS. 293 persons beneficially entitled to them, — the principle and policy of the Act, and the scope and limits of the jurisdiction under it, I think, are plain, and nothing more need be added about them. But with respect to the second class of powers con- The statu- ferred, viz., that of appointing new trustees, a very oflppoint-^ important question has arisen with respect to the ™s new trustees, extent and limits of the jurisdiction ; in consequence, their mainly, of the wide language made use of by the 32nd Umits. ° section. And the question is — does the Act, in this section, embrace every case of appointing new trustees which the Court could before have dealt with in a suit, including also, or not including, a power to remove a delinquent trustee, or a trustee unwiUing to retire? or is the Act restricted in this respect, and applicable to those appointments only of new trustees, in which there exists, to support the application, some such difficulty about vesting the estate as is dealt with in the former part of the Act. The recent cases of Be Blanchard {a) and Re Bridg- Eestiioted tnan (b), following a dictum of Lord Justice Turner, t™^*Jf°t^e in a case of Sodgson's Trust (c), and a decision of Sir ■*«'. ^^ *" the ap- John Eomilly in Be Brimrose {d), to the effect that pointment the Act gives no jurisdiction to the Court to order pay- ment of costs personally, have now conclusively esta- blished the latter and more restricted construction ; — subject, however, perhaps to this qualification, that the Court may still appoint trustees under the Act, though there be no disability or impediment to the (a) 9 VST. E. 648 ; 7 Jur. W. S. 505. (b) 8 W. E. 198. (c) 9 Hare, 118. (d) 23 Beav. 590. 294 THE STATUTOKT ADMINISTEATION. transfer of the estate, if only the trust be vacant, and there be no power in the parties themselves to appoint new trustees by deed ; so that there must, in any case, be an application to the Court for an appointment. The Act is now coiisidered, I think, to apply, as well under the circumstances last mentioned, as in the cases where the new trustees are appointed under any of the circumstances of specific disability or impedi- ment previously provided for by the Act, — ^but in no other cases. And a recent instance of an appointment such as I have mentioned, where no disability or incom- petency in fact impeded the transfer of the estate, is to be found in the case of Re Matthews' Settlement {a), where Sir John RomUly, under the Act, appointed a new trustee of a separation deed, without prejudice to any question as to its validity, simply on the ground of there being no power of appointment in the deed, and the trust being vacant and the property thus in jeopardy (J). But with reference to the extent of the jurisdiction under these Acts to appoint new trustees, I cannot do better than quote, in conclusion, the following passages from the judgment of Lord Justice Turner, in Re Blanchard, establishing the limited jurisdiction I have mentioned (c) : — (a) 5 Jur. N. S. 184. (6) See also, Davia v. Chanter, V. C. K. 4 Jur. N. S. 272. (c) And see also Lord St. Leonards' Real Property Statutes, 407, n., adyocating the limited construction, since established by decision, in opposition to the view of the framer of the Act, Mr. Headlam, who, in his edition of it, pp. 46 n., 55 n., appears to have anticipated that the wider construction must be adapted. THE TEUSTKE ACTS. 295 " With respect to the jurisdiction" [under the Trustee judgment Act] (a), said his lordship, "the case, I think, whoUy ^^^^ ^^'"'• depends upon the 32nd section of the Act of 1850. .... Was that [section] intended to extend to the dis- placing of trustees desirous to continue in the trust, and to the appointing of others in their place ? and especially to the displacing of trustees and the appointing of others on the ground of alleged misconduct in the trustees to he displaced, which is the case before us ? I think not. The language of the section, although no doubt very general and extensive, does not seem to me to be adapted to such cases. It says, * whenever it shall be found eiqaedient.' These words seem to me to import that the section was meant to apply to cases in which there might be a question about the expediency of what was sought to be done ; but there could scarcely be any case of a continuing trust (and it is to such trusts the section applies) in which it would not be expedient that a delinquent trustee should be removed and a new trustee appointed in his place. " But whatever might otherwise be the doubt upon the very general words of that section, that doubt seems to me to be removed by the context of the Act. At the time when the Act of 1850 was passed, every trustee had the right to have his accounts taken in this Court, in the presence of all the parties interested under the trust, so that aU might be bound, and to have any balance which might be found due to him on the- result of the account paid ; or, perhaps, in some cases of urgency, it might be secured to him before he (o) 9 W. B. 648 ; 7 Jur. N. S. 505. 296 THE STATUTOET ADMINISTRATION. Ee Bian- was denuded of the trust estate ; and, except so far as judgment, recent legislation may have altered the case as to parties, I believe every trustee has still such rights. This Act does not profess to alter the rights of trustees in these respects ; and I see nothing in it which in any way indicates an intention to do so. But if the con- struction of the 32nd section which was contended for in the argument before us be maintained, it will most undoubtedly alter a trustee's rights in these respects, and to a very serious extent. " How are rights of displaced trustees to be preserved, consistently with the 34th section, which gives power to the Court to vest the property in the new trustees ; with the 36th section, which provides that neither the appointment of the new trustees nor the transfer of the property shall discharge the former trustees further than as they would have been discharged by the ap- pointment of new trustees under a power ; and with the B7th section, which enables the appointment of the new trustees and the transfer of the property to be made, upon the application of any of the persons beneficially interested, whether under any disability or not ? " And, upon these grounds, his lordship concluded that the 32nd section of the Act of 1850 gave no power to remove the appellant from the trust, and, conse- quently, the order of the Vice- Chancellor, which had removed the trustee, and ordered him to pay the costs of the application, was discharged. Remarks on The precise effect of the judgment of the Lords Be Blau- Justices, it will be seen, is to exclude from the 32nd chard. ' section a power to appoint a new trustee, where that THE INFANTS SETTLEMENT ACT* 297 can only he done by the removal of a present one ; but when once the generaKty of the powers conferred is thus cut down," there is no ground for stopping till you come to cases clearly within the scope of the previous provisions of the Act ; and the reference made by the Lord Justice to the context of the Act, tends irresistibly to the same conclusion : — though there is nothing in the ju^ment, it must be observed, at all inconsistent with the decisions already men- tioned (a), that where there is no power to appoint trustees in the deed or mil, and the trust is vacant, the Court has jurisdiction to appoint under the Act, though the vacancy be not one within the precise terms of any of the previous sections. Section 2. The Infants' Settlement Act. The next statute which I have mentioned as con- Object of ferring on the Court special powers for administration, is The Infants' Settlement Act of 1855 (6), the fuU title of which is "An Act to enable Infants, mth the approbation of the Court of Chancery, to make binding settlements of their real and personal estate on Marriage" — a title which itself sufficiently expresses the object of the statute, and the powers which it is designed to confer. Before this statute was passed, settlements, or agree- State of tlie ments for settlements, entered into prior to marriage, gave rise to by persons, either. of whom, as of course frequently ' ' happened, was under twenty-one years of age, were (a) Ee Mattliews ; Davis ». Chanter, mSj iv/pra, (J) 18 & 19 Vict. c. 43. S98 THE STATUTORY ADMINISTRATION. not, and could not be made, in all respects binding on the person thus under age, or on his or her pro- perty, real or personal. For an infant, as it is almost needless to remark, is by the law of England wholly incapable of entering into any valid and effectual con- tract relating to his or her property. Yet as marriages constantly are, and I suppose always were, celebrated between persons, one of whom, most frequently the lady, is a minor, and as it was of course always desirable, in these as well as other cases, to throw round their property the protection of a settlement, and that an ante-nuptial one, expedients were devised before the Act now under our consideration was passed, for getting over, as far as might be, the diffi- culty presented by the incapacity in question. Infancy of Now as regards the infancy of the husband, it must band, its be Said at once, that no expedient was, or could be, * *°*" devised for making an absolutely valid ante-nuptial settlement of his property, either real or personal. His covenant or conveyance, executed in infancy and before On Us set- his marriage, for settling his landed property, when he tlement of „ . » real estate, should come of age, in favour of the wife and children of the marriage, was in fact wholly inoperative to bind either him or it, and could be repudiated by him at pleasure on arriving at majority. And the same was Of personal the case with his personal estate (a). Such settlements, it is true, were sometimes resorted to, viz., settlements by the husband notwithstanding tis infancy, by way of conveyance or covenant before marriage, because he (a) Infra, pp. 301, 303. THE INFANTS SETTLEMENT ACT. 299 generally adopted them afterwards on coming of age, and they thus became binding from that time. But independently of their acquiring a subsequent validity by acquiescence or adoption, the settlements of an infant-husband before his marriage were of necessity wholly inoperative ; and if postponed till afterwards, they ■wanted the marriage consideration, and were voluntary and bad, both against creditors and subsequent pur- chasers for value. In the case of the husband's property, however, the settlement was always of less importance than in the case of the wife's, inasmuch as in the husband's case the object of the settlement is simply to make a binding and permanent provision for the married persons and their offspring — an object which husbands who have property are generally quite anxious to effect, though where there is no ante-nuptial settle- ment they have not always the power to do it effectually; ' — ^whUe in the case of the wife's property there is, besides the above, this further object, viz., that of protecting her property from the extravagance or mis- fortune of the husband. But in the case of the marriage of a female infant, Infenoy of an expedient was devised by which, even before its effect. the late Act, her personal property, for the most part, though not wholly, was effectually settled ; supposing, that is to say, that her husband was of age. For the marriage being, as is well known, an absolute gift to the husband of the whole personal property of the wife, subject only, in the case of debts and other choses in action, to his reducing the same into possession during the coverture, — aU that was necessary, if the wife was an 300 THE STATUTOET ADMINISTRATION. Settlement infant, was, that the husband should covenant or agree of her per- ' . . . sonalty before the marriage, and in consideration thereof, that bindhfg on ^^ would immediately afterwards assign all the wife's thehus- personal property which should vest in him by the adult. marriage, in trust for the purpose of a settlement ; and as this was a binding covenant on the husband, attaching, on the marriage taking place, on everything which he thereby acquired, — it was in effect a valid settlement of the personal property of the infant wife (a) ; subject only to this, that her reversionary interests, debts owing to her, and other choses in action, were bound conditionally only, so that if they were not, or could not be, got in during the coverture, they remained the property of the wife, unbound in fact by the settlement. Settlement But the real estate of a female infant, like that of hftr T63i] estate, in- of a male infant, could not be effectively and irre- effeotuaJ. yogably settled prior to her marriage (6). The only circumstances in which its position in this respect differed from that of a husband's property who married under age, was this, viz., that in the case of the infant wife, if the husband, being of age, agreed to settle her real property before marriage, this bound him, and as she became by the marriage altogether, incapable of contracting, and incapable also of conveying, without his concurrence, her land during the coverture was at all events locked up, and could not be conveyed con- trary to the husband's articles. But a covenant by an infant husband to settle his own real estate could not, as I have already said, be by any contrivance (a) Infra, p. 303. (6) Infra, p. 301-2, ndtes. THE infants' settlement ACT. 301 made wholly effectual against him, if he chose after- wards to repudiate it. Now this state of the law was of great antiquity. As Authorities to the property of a male infant, it is as old as the inca- of the pacity of an infant to contract, and few points of debate ^°^^ P°^'" could arise, or have arisen, upon it. But with respect to the marriage settlements of a female infant's estate, real and personal, the points and practice I have men- tioned have been from a very early period established. In the case of Salisbury v. Bagot {a), Lord Chancellor Nottingham decided, in the year 1673, that articles entered into by the parents and guardians of Lady Bagot on her marriage, to settle her real estate, she being then Female in- an infant, " were void, and worked not ia the case." estate. Lord Thurlow, again, in 1800, in Clough v. Clough (6), • decided the same point in the same way. And so again Lord Eldon, in Milner v. Lord Harwood (c), vdth the additional circumstance, however, already noticed, that if the wife did not, when she came of age, choose to accede to the settlement, her adult hus- band having agreed that the land should be settled, he would be prevented from joining his wife to defeat the settlement. Lord Eldon, in that case, spoke as follows: — "Lord Thurlow, in Durnford v. Lane (d), thought a female infant could not be bound by her covenant upon marriage as to her landed property, and I concur in that; but Lord Thurlow's opinion was, further, that if she did not when of age choose to accede to that engagement, the conscience of her hus- (a) 2 Swanst. 603, 608. (J) 5 Vesey, 710, 714. (c) 18 Vesey, 259, 275. {d) 18 Vesey; 275. 302 THE STATUTOEY ADMINISTEATION. band was bound not to aid her in defeating it; and in equity, as he would not be permitted to do so, it is impossible to permit her act during coverture to be effectual." EflFectof Thus it wiU be seen that in the case of a female covena^' t "^^^^^t'^ '''^'^ estate, it could not be effectually settled ; settle it. but if the husband, being adult, had covenanted to settle it, it was at all events in effect locked up during the coverture; and if the wife, with her husband, were willing, when she was of age, to join in (as the law originally stood) a fine, or, (now,) an acknowledged deed, the settlement might, after the marriage and the wife's majority, be effectively and for ever confirmed. And this latter position, as enunciated by Lord Eldon, • following Lord Thurlow, in Milner v. Lord Sarwood, is confirmed by Lord Cottenham's decision in Pimm v., Insall {a), in the course of which case his lordship, — deciding that a covenant on marriage by an infant heiress and her intended husband, to settle real estate descended to her, was not effectual against creditors, as an alienation of the estate, though it was effectual to defeat any alienation inconsistent with the articles during the coverture, — observed, that the covenant to settle was clearly not absolutely without effect, "for," said his lordship, "it is clear that if there had been no articles, the husband and wife might on her attaining twenty-one, have disposed of the estate by any aliena- tion they thought fit to make," whereas the articles restricted them to an alienation in conformity there- (d) 1 Mac. & G. 449. THE infants' settlement ACT. 303 with. Such, then, being the state of the old decisions Female in- as to the invaKdity, subject to the above qualification, BonaUstate. of the settlement or agreement for settlement of a female infant's real estate. Sir John Leach, in Simson v. Jones (a), in the year 1831, thus summed up the law both as to her real and as to her personal estate, in a dictum very frequently cited (a) : " The general per- sonal estate," he said, " of a female infant, is bound by a settlement made on her marriage, because such per- sonal estate becomes by the marriage the absolute property of the husband, and the settlement is in effect Ms settlement, not hers. It is now established, that the real estate of a female infant is not bound by the settlement made on her marriage, because her real estate does not by the marriage become the absolute property of the husband, though by the marriage he takes a limited interest in it." The result is, that, before the Infants' Settlement Act, — 1. No binding marriage settlement could be made of Male in- the property, real or personal, of a male infant. and'per- 2. No binding marriage settlement could be made of ^™*'' the real property of a female infant, beyond this, viz., ^^^^^^i' that if her husband were adult and wished to settle it, this had the effect of preventing, during the coverture, any alienation inconsistent with the settlement. And lastly, — 3. A marriage settlement, partially binding, could be Female in- made of the personal property of a female infant, by sonal e^s-"^" tate, (o) 2 Euss. & M. 376. 304 THE STATUTOET ADMINISTBATION. means of the husband's covenant to settle, as soon as sucli property should become his by the marriage. For such covenant attached on (zll the lady's personal property, except her reversionary interests not falling in, and her choses in action not got in, during her coverture. As to these last, no binding settlement could by any means be made. Settlement Nor was this incapacity merely the incapacity of the the°Conrt^^ parties. The Court could not do it. The lady might equally in- ]be an infant ward of Court, and the husband might effectual. . . ... have married her in contempt and disobedience of the orders of the Court, without entering into any ante- nuptial agreement to settle her property. If he did so, the Court might punish him, but it could not remedy the defective nature of the settlement which it com- pelled him to make. "Whatever doubts," says Sir John Leach, in the same judgment which I have above quoted (a), " may have been entertained on the subject formerly, I take it to be clear that the real estate of a female infant would not be bound by a settlement made with the approbation of the Court ; " and Lord Justice Turner, in delivering judgment in Meld v. Moore (6), in which case this point was expressly decided, goes through all the authorities I have men- tioned, with many others, and concludes that no modern decision has the least tendency to controvert them, on the point now in question. Remedy The result of this state of the law was of course in applied by the Act. the highest degree inconvenient ; and the only wonder (a) 2 B. & M. 377. (i) 7 D. M. & G. 691. LEASES AND SALES OP SETTLED ESTATES ACTS. 305 is, that it was not until the year 1855 that it was sought to apply a remedy to it. And the remedy is simple enough. The Act enables every infant — with the restriction, that in the case of males the age of the applicant must be not less than twenty, and of females not less than seventeen — mth the sanction of the Court of Chancery, to make a valid settlement of his or her property ; such sanction tq be given upon petition pre- sented by the infant or his or her guardian in a summary way. And all that is requisite in such a case is to state and prove to the Court the age, rank, and property of the parties, and the terms of the proposed settlement, and thereupon to obtain, after a reference thereof to the Judge in Chambers, an order authorising the execution of the settlement which the Judge may have approved. Section 3. The Leases and Sales of Settled Estates Acts. Next in order come the powers created by The Leases Object and and Sales of Settled Estates Acts, the first of which Acts, t^Aot.^ ° passed in 1856 (a), is intituled " An Act to facilitate Leases and Sales of Settled Estates," and the second, passed in 1858 (J), is intituled " An Act to amend and extend the Settled Estates Act of 1856 " (c). (o) 19 & 20 Viet. c. 130. (6) 21 & 22 Vict. all of one generation (if no members of any other are entitled to share), taking per capita (d); but otherwise, per stirpes {d). If any take realty — other than the heir— or personalty, including the heir — by gift |or descent, he or she shall bring it into hotchpot (c). The half-blood share equally with the whole (/), If intestate (o) ( leave no Children, but Wife, she takes one-half, and the father or next of kin the other half, as infra with respect to whole if no Wife (g) ; and no Wife, but Father, he takes the whole by common law (h) ; n. Father. [This step, and all that follow, subject to wife's one-half.] and no Father, but Mother (i), and Brothers, and Sisters, whether of the half-blood or of the whole {k), and Children of deceased Brother or Sister [if any Brother or Sister be still living ( i ) ], or any of them. They shall take in equal shares (0*' and before the Grandfather or Grandmother, though the latter are in equal degree with the brothers and sisters (m). and neither Mo- ther, Brothers, nor Sisters, but Grandfather and \ they, he, or she shall take equally ; being nearer iu degree than Grandmother, or either, J Uncle or Aunt («). andneither Grand- father nor Grand- mother ; but Nephews and Nieces [if Brothers and Sisters are all dtaJ], and Uncle and Aunt, and Great Grandfather and Great Grandmother, or any of them ; they shall take equally, the Nephews and Nieces taking jjo' capita and not 'per stirpes, and no representation in case of any of their decease (o) ; and no kin of the third de- gree, but of the fourth ; then those of the fourth degree take equally ; and no kin of the fourth. but of the fifth degree ; degree take equ.ally. then those of the fifth STEPS UNDER STATUTES ; EACH STEP TAKINO TO THE EXCLUSION OF THE FOLLOWING ONE. I. Children (subject to wife's one-third). in. Mother, Brother, [with representation Sister. J to first degree (subject as aforesaid). DEGREES OF THE CIVIL LAW, WHICH THE STATUTES FOLLOW FOR THE MOST PAKT. I. Children, Father, Mother. IV. Grandfather & Grandmother (subject as aforesaid). All of the third degree (subject as aforesaid). VI. All of the fourth degree (subject as aforesaid). 11. Brothers and Sisters ; Grandfather & Grandmother. III. Nephew, Niece ; Uncle, Aunt ; Great Grandfather, and Great Grandmother. IV. Great Nephew, &c. ; First Cousin ; Great Uncle, &c. ; Great-Great Grandfather, &o. VII. &o. V. &c. (a) 3f the intestate be a niarried woman, ber husband is, at Comnjon Law, confirmed by the Statute of Frauds (29 Car. II. c. 3, s. 26), entitled to all her personal property. Wms. Exors. 1340 ; and see Milne v. Gilbart, 5 D. M. & G. 510, 51.5 ; and Lord Eldou's judgroent in Garrick v. Lord Camden, 14 Vesey, -SSS. (6) Statute of Distributions, 22 & 23 Car. II, c. 10, s. 5. (c) By Lord Alvanley, M. E., 3 Br. C. C. 220. (d) 2 Blackst. Com. 617. (e) 22 & 23 Car. II. c. 10, ss. 5, 7 ; Wms. Exors. 1349. (/) Moor r. Barh.am, 1 P. W. 63 ; Wms. Exors. ISIS. to) 22 & 23 Car. II. 0. 10, s. 6. (A) Blackborough r. Davis, 1 P. W. 51 ; Wm. Exors. 370. 1357. (() As between the mother and the neptieios and nieces, it is not necessary that there should be a brother or sister hving, to entitle the nephews and nieces, children of a deceased brother or sister to share. Stanley v. S., 1 Atk. 435. But it is otherwise as between the grand/other or grandmother, or vncte or aunt, and the nephews or nieces, children of deceased brother or sister. To entitle the latter to priority in the case last put, there must be a brother or sister living. Buisst?res v. Albert, 2 C-i. temp. Leo, 51 ; Wras. Exors. 1303; ret)resentation being .allowed, between collaterals, as far as brother's and sister's children, but no further, and iu no other case. Pett's Case, 1 P. W. 26; 22 & 23 Car. II. c. 10, s. 7. (i-) Jessop r. Watson, 1 M. &: K. 605. (0 1 Jat. 11., c. 17, s. 7 ; 22 Car. II. c, 10. s. 7 ; Keilw.iy <•. K., 2 P. \Y. 344. (»i) Evelyn v. E., Ambl. 191. (n) Blackborough v. Davis, 1 P. W. 41. (o) 22 & 23 Car. II., c. 10, s. 6 ; Lloyd r. Tench, 2 Vezev, 213 ; Petfs Case, 1 P. W. 20 ^^^-^t^^rPtC^^^ r't^l^/b^ /^, '■'^ INDEX. ABATEMENT of legacies, 110 n., Ill and animities, 111 ACCOUNT, asset suit, of personal estate, 29 ; Appendix A. 321 real estate, 30 ; Appendix A. 321 — 3 assets admission of, preclades, 61 creditors' suit, of personal estate, 29 ; Appendix A. 319 against real estate, 30; Appendix A. 319, 320 debts nnder Sir G. Turner's Act, 44, 51, 52, 54 decree for, 29 ; Appendix A. 319, 321 liability to, sole issue in adininistration suit, 36, 37 real estate, asset suit, 30, 323 creditors' suit, 30, 320 not directed on suit by single creditor, 57 rents of real estate, not directed uutU deficiency shown wLich requires them, 321, n. summons in Chambers for, 47, 49 wilful default, 80, 81 not decreed on summons, 48 ACCRETIONS to estate, after death of owner, are assets for payment of his debts, 72 ACCUMULATION, of income, beyond legal period, effect of, 231, 238, 239 what periods legal, 239 See TheUusaon Act. ACTION by executor, improper^ after administration decree, 33 ADMINISTKATION, generally, 1 of assets, derived from the administration of trusts, 5 but a distinct administration, 10 — 12 real foundation of the jurisdiction, 7, 22 one of the great branches of the administrative jurisdiction, 9, 10 its object and character, 19, 20 328 INDEX. ADMINISTEATION— (!OJi/i««e(i. of assets, the parties to it, 23 et sej., 34 et seq. the priorities and course of application, 29 — 31, 90, 119 etseq. the title to obtain it, 34 is pf course, 35, 39 See Assets, Costs, Deoree. statutory, a distinct branch of administratire jniisdiction, 12 the statutes comprising it, 12, 263, 263—265 And see Table of Statutes, ante, p. xxTii suit, two classes of, 1 creditors, 2 general; 20, 31 decrees in, compared, 31 of real estate, 30, 37, 88, 89 who entitled to, 38 of real and personal estate, in one suit, 38 n. (a) parties to, 23, 24, 27, 28, 34 procedure in, 44 e< seq. Sir G. Turner's Act, 44, 51, 52, 54 by summons, 46, 60 when inapplicable, 47, 48, 50, 53 single creditor, 54, 59 single legatee, 59 of trusts, early instances of, 4, 5 one of the great branches of the administrative jurisdic- tion, 10 (charitabte), see* 0/iaHtable Gift, Cliarky, Mortmain, Trusts ChwritabU, 'Visitor. constructive, 204 — 211 executory, 218—228 express, 202, 214—216 implied by law, 202, 203 private or drdihary, 201 et seq. procedure in, establishing trust, 202 executing &u^i, 216 resulting, 204, 212— 21i And see Decree. ADMINISTRATIVE JURISDICTION OF THE COtET OP CHANCERY, definition of, 1 coincident with the jurisdiction over trusts, and other analogous relations, 3 foundation of the jurisdiction in the case of the assets of deceased persons, 7 the various branches of, 9 does not strictly include bankruptcy or lunacy, 15 nor partnership, 16 mortgages, 17 And see ASimiistration — of Assets, Statutory, of trusts. ADMINISTRATOR, ad litem, insufficient, in suit for administration of estate, 24 beneficially entitled to residue, nntU Statute of Distributions, 9 cum testamento arniexo, 24 de bonis non administratis, 26 liability to intestate's creditors, ori^ and nature of, 8 INDEX. 329 ADmrnSTRkTOR— continued. not entitled to oUain administration decree on summons, 50 right to order for account under Sir G, Turner's Act, 4i, 51 the indemnity of the Court, 84, 89, etseq. 50, 109 costs out of fund as betireeu solicitor and client, 40, 92, 95 -who is entitled to be, 25, 26 And see Executor. ADMISSION OF ASSETS, 60—65. assent of executor to a legacy, tantamount to, 113 constructive, instances of, 62 — 65 by declaration that legacy is ready, 63 defined, 62—64, 67 effect of, in dispensing with Account, 61 in entitling to immediate judgment at law, 61 order for payment in equity, 61 express or constructive, 62 by mistake not conclusive, 64 not necessary to found an order for payment into Court, 83 by payment of one legacy, for payment of all, 108, 109 legacies, for payment of debts, 62, 108 interest for payment of legacy, 63 promise on consideration, 64 provision out of executor's own property, 63 in summons suit, cannot be acted on, 49 ADMISSION, by answer, for purposes of payment into Court, 83, 84 ADVANCEMENT, for chUdren, 207 AFFIDAVIT, under Trustee Belief Act, 266 AGfiEEMENT, for settlement on marriage, how executed by the Court, 221 — 5 ANNUITY, appropriation for. 111, 113 capital applied to pay in full, 112 fund, distributable after death of annuitant, 112 income only, Arhen applicable to pay, 112 n. payment and securing of, 111, 113 secured on real estate, held sufficiently secured for the purposes of the administration, 113 valued for purposes of administration, if estate deficient, and abates accordingly, 112 n. APPLICATION of assets, order of, inier se, 119 et seq. in payment of debts, 135y 136 APPOINTMENT, power of, if exercised, property is assets, 73, 87, 122, 136 330 INDEX. APPOINTMENT— con«iiM*«i. power of, if unexercised, not assets generally, but liable to judgment creditors, 73, 136 of new trustees, part of the ordinary administration of the trusty 285 in suit to administer trust, 285 under Trustee Acts, 284, 286, 292—297 limited to cases of disability or other impediment, 292 — 297. APPEOPRIATION of assets, to answer contingent liabilities on covenant or otherwise, not now made, 109 to answer annuities, 111, 113 legacies, 113 ASSENT of executor to legacy, its effect in the administration of the estate by the Court, 113 n. ASSETS, administration of, 90, 119. See Administration. admission of, 61. See Admission of Assets. appropriation of, see Appropriation. deficient, good defence to creditor's action at law, 98 no defence to suit for account, 35 for costs of suit, 94 definition of, 67, 73, 74, 119 descent, by, 70, 84, 122 equitable, what, 77. See Equitable Assets. getting in and securing, duty of executor, 79, 80 legal and equitable, distinction between, 74, 135, 136 legal, what, 75. See Zegal Assets. liability of executor for assets received, 79 omitted to be received, 80, 81 constructively received, 81 marshalling, 125. See Ma/rshalling. order of application of, in payment of debts and legacies, 119, 121, 136 payment of, into Oourt, 82 personal and real, division into, 68, 121 personal, what, 69 et seq. accretions, 72 chattels real, 69 estate f/u/r avter vie, 71 lands abroad, 72 power of appointment, if exercised, 73, 87, 122, 137 profession or trade, goodwill of, 73 trustee's estate, not assets for his debts, 73 by act of debtor, non-testamentary, as mortgage, 87, 1 28 testamentary, 87, 131 priority property of all kinds now included, 119, 124 real, 68, 84, 119 by descent, 70, 84, 122 devise or charge, 87, 122, 135, 136 statute 3 Will. & Mary, o. 14, 85, 122 INDEX. 331 ASSETS— coBimiufrf. statute 1 'WiU. IV. e. 47, 85, 122 3 & 4 Wm. IV. 0. 104, 87, 38, 85, 123, 136 including copyholds, 85, 87 'when legal assets, and when equitable, 78, 86, 124, 135, 136 their priority and order of application, 87, 128 — 137 realisation of, under the administration, 88, 89 See Seal Estate. receipt of, charges executor or administrator, 79 by co-executor, effect o^ 81, 82 (constructive) of, 81 securing, in Court, 82 on admission in the answer, 83 Chief Clerk's certificate, 83 suit for administration of, its twofold form, 20, 54 trustee's estate, not assets for payment of trustee's debts, 73 trust of freehold, legal assets by Statute of Frauds, 86, 123 ASSIGNEE of creditor, entitled to administration of debtor's estate, 27 ATTORNEY-GENERAL, ex officio information by, to administer charity, 142, 172, 173 approval by, of petition to administer charity under Sir S. Romilly's Act, 117 BANK STOCK, now an authorised investment, 315 BANKRUPT executor or trustee, removal of, cannot be effected on petition under Trustee Act, 280 BANKRUPTCY, jurisdiction in, not purely administrative, 15 BASTARD, ' intestate. Crown entitled to administer to, 26 beneficially to estate, 115, 116 BENEFICIARY. See Devuee, Legatee. BILL for administration of assets, when proper, and when a summons is sufficient, 47, 48, 49, 53 effect of filing bill, when summons is proper, 50 form of, fur administration of assets, 54, 55 by single creditor for administration, 54 creditors generally for admidistration, 55 single legatee for administration, 59 legatees generally for administration, 59 BOND, creditor'a right to enforce his security, 58 general administration, 34, 38, 84 332 INDEX. BOND — cordin'oed, right to sue on, vested in new trustees by Vesting order under Trustee Acts, 290, 291 voluntary, preferred to legaeies, postponed to debts, 107 BREACH OF TRUST, simple contract debt, generally, 106 specialty debt when, 106, n. summons suit not applicable for, ^8 BRID&ES. See Public Worhs. BUILDINGS, restoration of, under Lands C3auses Act, 280 CALL under Joint Stock Company's Acts is a specialty debt, 106, n. CARRYING OVER residue to accounts of persons incapacitated, 243, 249, 250 CERTIFICATE of Chief Clerk, of result of accounts, 83, 113 payment into Court on, 83 CHAMBERS, accounts taken in, in administration of assets, 23, 29, 30, 33, 319, 322 applications in charity matters initiated in, 180, 182 charity scheme settled in, 185 creditors establishing debts in, with costs of proof, 95 guardian, appointment of in, 244 management of estates conducted in, 240 sales under decrees conducted in, 240 summons-decree for administration of estate pronounced in, 46, 47 order under Sir G. Turner's Act, pronoumced in, S2 And see Inquiries in Chambers, CHARGE of real estate, with payment of debts, effect of, 87, 136 costs first charge on estate administered, 92 CHARITABLE GIFT. See Ohwrity, MoHmaim, Trust Charitable. conditions of, must clearly express a purpose of charity, 152 but need not specify what purpose, 152 failing entirely, heir or next of kin entitled, 155, 161 for want of declaration of trust. Crown applies itj 144, 157 — 161 objects, Court applies it cypres, 144, 158, 163 form of, general sufficient, 152, 154 requisites to, 151 CHARITABLE TRUSTS ACTS (1853, 1855, 1860), 179, 180—182 CHARITABLE USES, statute of, 144—146 what, as expressed by the statute, 146 on the equity of the statute, 147 are not, 148, 149 INDEX. 333 CHARITY, administration of, on information and HU, 171 petition, 176 summons, 182 by Commissioners of Charities, 182 course of administration, 183 decree for, 184 commissioners nnder Charitable Trusts Act, 181 their judicial powers, 181 consent to proceedings in Chancery, 180 cypres application, 158, 160 — 162 deed must be enrolled, 186 definition of, 145, 146 general gift sufficient, 152* information to establish and administer, 171 and bill, 173 jurisdiction of Chancery over, 180, 182 legacies to, proper form of, 191, 192 objects of, what lawful, 146, 150 petition under Komilly's Act, 176 — 179 scheme, direction of, 182, 185, 194 sign manual, application of property by, 144, 157 — 160 Sir Samuel Komilly's Act, 176—179 what a good charitable purpose, 147, 148 See Charitable Gift, Charitable Uses, Mortmain, Trusts Cha/ritable, Visitor. CHATTEL REAL is assets for payment of debts, 69 CHILD, title of, to administer parents' estate, 25 parents' estate undisposed o^ 116, 118 CHILDREN, advancement and provision for, 207 inquiries about, 30 CHOSE IN ACTION of female infant, cannot be bound by her marriage settlement, 300,304 except nnder Infants' Settlement Act, 105 within Trustee Act, 290, 291 vesting order as to, 291 CHURCH, gift to build, within the Mortmain Act, 193 CLASS, inquiry as to, 30 CO-EXECUTOR. See Executors, several. COMPENSATION, money from raUw^ay and other companies, — administration of, under Lands Clauses Act, 12, 13, 279 CONCURRENT SUITS, decrees in, 50 staying one of, 60 334 INDEX. CONSENT of feme corert to payment of fund to Iier hns'baud, 250 CONSOLS formerly the only investment sanctioned ty the Court for tmst funds, 311 rule now extended, 315 CONSTRUCTIVE, admission of assets, 62 — ^65. See Admisiion of Atseti, notice, doctrine of, 209 trusts defined by Lord Hardwicke, 203 Mr. Lewin, 201 early authority on, 205 raised in faTou;; of person paying purchase money, 207, 208 cestui que truet on any dealing by trustee, as, e.g., renewal of lease, 210 on sale under trust, 210 on every incomplete sale, 211 rule stated, 211 See Trust, Constructm. CONTEMPT, by marrying ward of Court without consent, 244 CONTEACTS on behalf of persons under disability, 305, n. efiectuated by application of Trustee Acts, 291, n. CONVEKSION, directed but not required, of land into money, or vice versd, trust results in favour of heir or next of kin of the original donor, 213, 214 of property taken by public companies, under Lands Clauses Act, 281, 282. sold under Sale of Settled Estates Act, 310. CONVEYANCE of trust property, with notice of trust, the grantee or transferee is bound by it, 211 COPTHOLDS are assets for payment of debts, 71, 85, 87 included in Trustee Acts, 290 COEPOEATION trustee of charity, 198 COSTS of administration of assets, generally, 91, 94, 100 assets deficient, 95 , heir, devisee, legatee, and next of kin, 95, 96 payable out of residue, 94 plaintiffs', 95 INDEX. 335 costs— eontmued, concurrent suits, 50 creditor's, in administration suit, 95, 96 executor's, administrator's, or trustees', as between solicitor and client, 40, 95 fiiBt charge on estate administered, 91, 92, 138 Lands Clauses Consolidation Act, of administration under, 281 liability to, of creditors or beneficiaries instituting administratiou suit needlessly or vexatiously, 34, 35, 92 executors or trustees improperly causing or instituting admi- nistration suit, 39 — 41, 92, 93 plaintiffs in administration suit, bow payable, 95 solicitor and client, executors and trustees entitled to, 40, 95 Trustee Relief Act, of adijinistration under, 273, 274, 276 trustees, in administration, how payable, 40, 95 COUNTY COURTS, jurisdiction ia charities, 180 COURT (OF CHANCERY) becomes trustee of the estate, on suit to administer, 33, 100 on payment into Court under Trustee EeUef Act, 268 COVENANT, contingent breach of, will not support creditor's suit, 27 testator's, indemnity against, 109 voluntary, will support creditor's suit, 28 debt on, order of payment in administration, 107 CREDITOR entitled to take out administration to debtor's estate, 25 an account from executor or administrator of deceased debtor, 34. See Creditors' Suit. CREDITORS' SUIT, to administer after-acquired property of insolvent debtor, 28, n. assignee of creditor, plaintiff, 27 costs. See Costs. debt to support suit, what sufScient, 27, 28 decree in, 29, 65, 319 as to real estate, 57, 320 on further consideration, 81, 321, n. (c) right to, 34—38 form of, single, 64 general, 55, 319 inquiries, real estate, 320, 323 marshalling assets, 124 et seq. See Marshalling. parties, against personal estate, 23, 27, 34 against real estate, 38, n. personal representative of creditor, plaintiff, 28 priorities amongst, 99, 101 ei seq. See Priorities. proof of debts, costs aidded to, 95 real estate against, 30, 37, 46, 47, 57, 88, 320 336 INDEX. CREDITORS' SUIT— coniMttcd. sale of real estate, 320, u. single creditor, 54 b; summons, 46 trhat, 20 CROWN, debts to, entitled to first payment, 1 01 jurisdiction of, over public charities, 144 right of, to personalty where no next of kin, 115 realty where no heir, 116 CTPEES, application of charitable donations, 144, 158, 160—163 DEBT, acknowledgment of, is admission of assets, 65 charge of, on real estate, does not perse exonerate personalty, 132, 134, 136 not equivalent to creation of fund for payment, 134, 136 effect in administration of assets, 87, 132, 134, 136 creditor's suit, what will support, 27, 28 Crown, first payable in administration, 101 executor to estate, is assets, 107, exoneration of personal estate from, 87, 132 judgment, order of payment of, 102. See Judgmmi. order of liability of assets to, 97, 101, 135 payable in fviwro, will support creditor's suit, 27 payment, fund for, effect of, 135, 137 of record, order of payment of, 102 simple contract, liability of real estate to, 85, 105 order of payment, 106 breach of trust is, 106 specialty, when breach of trust is, 106, n. call under Winding-up Acts is, 106, n. liability of real estate to, 84 order of payment, 105 what, 84, 105 by special statutes, order of payment, 101 recognizance, order of payment, 104 Sir Gteorge Turner's Act, motion to ascertain, 44, 51 trust for payment of, its effect in exonerating mortgaged estates, 131 the other assets, 132, 133, 135 See Equitable Aisets, Legal Assets, Priorities. DECLARATION that legacy is ready, admission of assets for it, 63 that will is well proved, and ought to be established and executed, 321, 322, n. DECREE, for administration of assets, 29, SI, 57 forms of. Appendix A. 319, 321 declaration in, establishing will, 30, 322, n. INDEX. 337 DWBSE— continued. effect of, on actions and other proceedings by executor or trustee, 33, 55, 57, 100 as a judgment, 102 registered, 103 under statute 1 & 2 Vict. c. 110, 73, 104 e'ridence, what necessary for administration decree, 85, 36 on further consideration, 81, 321, n. order under Sir Q. Turner's Act, form of, 52 n. DEFAULT, judgment by, against executor, an admission of assets for demand, 62 DEMONSTRATIVE LEGACY, what, 111 • considered specific, for purposes of preference. 111 DESCENT, assets by. See Assets. DEYASTA VIT, cannot be redressed on summons decree, iS DEVISEE, entitled as of course to account of testator's estate, 34 — 36 in trust for payment of debts, 136 , See Real Estate. DISCOVERT, obtained in Chancery, one of the sources of its administratiye juris- diction, 7, 8 DISTRIBUTION, final, of the estate, in the administration of the trust, 243 DISTRIBUTION, STATUTES OF, 25, 116, 118 application of intestates' estates under, 115, and Appendix B. degrees recognised by, 117 — 119, and.Appendix B. title under, of brothers and sisters, 117 children, 116, 118 cousins, 117 descendants (lineal), 117, 118 father, 118 half blood, 118, n. husband, 118 kindred collateral, 117 mother, 117 nephews and nieces, 117 uncle, 117 widow, 116, 118 EDUCATION. See School. EQUITABLE ASSETS, what, 77, 79 : distinction, between legal and equitable, 75 real estate u^der 3 & 4 Will. IV. c. 104, 78, 124, 136 338 INDEX. EQUITABLE ASS'E'TS— continued. real estate devised Id tmst for sale and payment of debts, 77, 135 charged with debts, 136 separate estate of mafrried woman, 78 EQUITABLE CHARGE, is within Locke King's Act, 17 & 18 Yict. c. 113, and disentitled to exoneration by personal estate, 130 EQUITY OF EEDEMPTION, legal assets, 76, 77 ESCHEAT of real estate to the Crown, 116 ESTABLISHMENT, of trusts, public, 142 et seq. private, 202 et seq. wills against the heir, 30, 321, 322, n. ESTATE, pur aiUer vie, assets for payment of debts, 69 when real assets, 70 EVIDENCE, in taking accounts, 37, n. suits for account, limited to accounting liability, 36 as to items, inadmissible, 37 EXCHANGE, effectuated by application of Tmstee Act, 291, n. EXECUTION OF TRUSTS. See Trust, Establishment. EXECUTOR, accountable of common right, 34, 39, 43 accounts against, 29, 34—39, 46, 80, 319, 321 action by, after administration decree, improper, 33, n. administration decree against, 29, 33, 46, 57, 319, 321 admitting assets, becomes personally liable, 61. See Admission of Assets. appointment of, 24 assent to legacies, 113, n. assuming a liability to legacy, admits assets for it, 63 balances in hands of, 81 breach of trust by, must be redressed by biU, 48 co-executor, liabilities for, 81 conversion, duty of, 312 costs, liable to pay, if needlessly or vexatiously causing suit, 40, 41, 9^, 9u costs, charges, and expenses, entitled to, generally, 92 debtor to the estate, 107 deceased executor's executor, represents original testator, 26 distributing the estate on his own responsibility, liable to subsequent claims, 42, 98, 108 entitled to order to account, under Sir Gfeorge Tumfer's Act, 44, 61 not to administration decree on summons,\60 IKDEX, . 313.9; 'EKEGU'TOB,— continued. entitled to indemnity of administration by the Court, 34, 39, et seo.. 50,109 ^ interest charged with, 81 iuTestment of estate, duty as to, 311, 312 judgment against, by default, iis admission of assets, 62 personally, gives priority to creditor, 99, 103 liability for assets received, 79 but not further, except on special case, 80 receipts of his co-executor, 81 to pay costs of improper proceedings, 39 — 41, 92, 93 mistake by, in payments, 62, n. paying claims of lower degree admits assets, 62, 98 interest on legacy admits assets, 63 inferior debt before higher is personally liable; 98' otherwise if no notice, 99 etebt% sSteT administration suit commenced, 33, n., 100 legacies before debts, personally liable, 99, 108 pleading superior debt, and not assets for both, good defence to action by creditor, 98 power of preference between debts of equal degree; 61, 99 probate, may be sued before, 24 promising to pay legacy or demand, how far liable, 64 receipt of assets by executor, his liability on, 79 ** representative of deceased, 26 retainer by, of debts owing to himself, 107 right to the indemnity of the Court, 34, 39, et aeq., 50, 109 several executors, their liabilities one for the other, 81 Sir George Turner's Act, entitled to account under, 44, Si. and trustee, distinction between, 7 — 11 trustee of residue for next of kin by statute 1 Will. IV. e. 40, 8, 115, 116 not trustee for creditors, 8 See Personal Sqaresentative. EXONEEATION of assets, &om ordinaiy course of appBeatioBi to debts and legacies, 135 charge of debts on real or personal estate, effect of, 136 exonerates all property given specifically or as residue, 136 devise to pay debts, exonerates everything but general personal estate, 135 of mortgaged or pledged property, real or personal, by general personal estate, 128^-131 land, by personal estate, rule excluded by Locke King's Act, 130 but if intention a{>pasent, the mortgagee will be exonerated,, 131 of personal estate from debts and legacies, 87, 132 purchased estate from purchase-money, by general personal estate, 129 real estate by personal, general rule of law, 121, 137 charged, by descended real estate, 135, 136 descended, by devise for payment of debts, 135 340 INDEX. EXONERATION— cojrfinmed. of leal estate appointed, by the other assets, 136, 137 and personal estate speeiflcaUy given, by the other assets, 136—137 EXPENSES, testamentary, order of payment of, 100 of administration, 100 FATHER entitled to child's undisposed of estate, under Statutes of Distribu- tion, when, 118. Appendix E. FEME COVERT, account of, fund carried to, 243, 250 estates, leases sales and mortgages of, 305, u. equity to settlement, 250, 251 its origin and nature, 251, 252 waiver of, on examination by Commissioners, or in Court, 250 FORECLOSURE suit, not strictly of an administrative character, 17 FOREIGN COUNTRIES, lands in, personal assets, 72 FRAUDS, Statute of, makes a trust of lands assets, 86 its provisions that trusts must be in writing, 202, 203 And see Table of Statutes, ante, p. xxvii. FRAUDULENT purchase, constructive trust raised by, 210 renewal of leases, constructive trust raised by, 210 FRAUDULENT DEVISES, Statute of, 3 Will. & Mary, e. 14, 85, 122 And see Table of Statiites, ante, p. xxvii. FUNERAL EXPENSES, order of satisfaction thereof, 91, 96, 97, 100 FUND for payment of debts, its effect in administration of assets, 135 FURTHER CONSIDERATION, decree or order on, 81, 321, n, GOODWILL of business or profession, assets in a Court of Equity, 73 GUARDIAN, appointment of, 244, 245 of person and estate, ib. on petition without suit, 244 payment to, of allowance for infant's maintenance, 248 HALF-BLOOD entitled under Statutes of Distiibution, 118, n. INDEX. 341 HEIR, costs, riglit to, 95 establisMng will against, 30, 322, ii, issue, light to, 31, 323, ii, inqniry as to, 119 of paid off mortgagee, trustee for mortgagor, 291 rights of creditors, by bond or covenant against, 84, 86 settlement or alienation by, 86 HEIRLOOMS, execution of trusts as to, 225 HOSPITAL, gift to found, a good charitable gift, 146 subject to Mortmain Act, 193 HUSBAND entitled to administer deceased wife's estate, 25 deceased wife's personal estate, 118 payment to in right of wife, on her consent, 250 IDIOT. See Lunacy, Lunatic. ILLEGITIMATE. See Bastard. INCUMBBANCES, discharge of, out of compensation or purchase-money, paid into Court under Lands Clauses Act, 280 under Leases and Sales Act, 310 inquiries as to, 88, 320, 323 priorities of, 88, 320, 323 sale, with concurrence, 89, 320, n. or, if not, subject to the incumbrances, 89, 320, n. INDEMNITY of executors against testator's coyenants in a lease, 109 and trustees, by administration in Court, 34, 39, etieq., 109 INDIA STOCK, now an auliorised inrestment, 315 INFANT, conveyance of trust property vested in, 290, 291 estate, conveyances leases mortgages and sales of, 805, u. See Leases and Sales of Settled Estaies A cts. guardian of, 244, 245. See Guardian. custody of, 244, 246 education, religious, 244, 246 maintenance, 244, 248, 249 interested in estate under administration, is ward of Court, 243 under Trustee Belief Acts, is Ward of Court, 276 jurisdiction of Court over, 246 — 8 legacy to, maybe paid into Court under Trustee Belief Act, 261, 278 marriage of, 249 in contempt of Court, 244, 304 mortgagee, 254, 256, 290, 291 heir or devisee of paid off mortgagee, trustee for mort- gagor, 291 z a 342 INBEX-. ISVAST— continued. property, foundation of the jnrisdiction, 244, 346, 248 settlement on marriage (female's), of real estate, how tax" efFeotual, 301— 3oa personal estate, Hnds the hostand, 299, 30O, 803 hy order of oonart, 304- (male), void in all cases, 298^ 301 with sanction of Court, under Infants! Settle- ment Act, 305 trustee, 254, 255, 290, 291. See Trustee Act. INFANTS' SETTLEMENT ACT, 18 & 19 Vict. c. 43, 297, et s«j. jurisdiction under, how far admisistratiyc^ 14 part of statutory administrative jurisdiction, 265 ohject and principle of, 15, 297—305. See Infamt, Settlemmt on Marriage of, INFORMATION, for administering charities, 171 and bill, 173 INQUIRIES IN CHAMBERS, as to children, 29, 30 classes, 29, 30 heir at law, 119 incumbrances, 88, 320, 323 legatees, residuary or other, 29, 30 next of kin, 30, 324 outstanding estate, 29, 319, 321 persons interested, SO personal estate, what pure, and what otherwise, with a view to charity legacies, 185, 191 real estate of deceased, 30, 88, 320, 323' INSURANCE, life, money administered under Trustee Relief Act, 278 INTEREST, executors charged with, 81 on legacies, paid in the adminiatrationi 113 payment of, by executor, is admission of assets for legacy, 63 INTESTACY. See Administrator, Bastard, Crown, Distribution, EesicUe. of real estate, summons suit inapplicable, 48 INVESTMENT to answer annuity. 111, 113 legacies, 113 in Consols, old rule of Court, 311 duty of executor as to, 812, 314 on mortgage, when it may be called in, 312 on what securities Court now permits, 314 IHDEX. 84§ INVESTMENT— con««m(ed. under Lauds Clauses Aet, 280 licaaessttd BaLes Aati, 210 ISSUE ,ta try validity of mil of real eatate, 31 JUDGMENT creditor, jriority of, in admiifistraliion, 102 Ttgbts of, against real estate, 58, 59, 87, 88 under 1 & 2 Viot.o. 110, 78, 87, 88, 104 debt, order of payment o^ 102 priority oTer statutes and recognisances, 102, 104 must be registered to have priority, 103 by de&ult, against executor or administrator, is adjsiasion of assets, 62, n. docqueting abolished, 103 equitable charge created by, 73, 87, 88, 104 over debtor's power of appointment, 73 executor or administrator against, pejrsonally, ranks according to date, 103 by default, is admission of assets, 62, n. registration o^ necessary to priority of debt in administration of assets, 103 testator or intestate against, ranks rateably, 99, 103 JUKISDICTION, administrative, of the Court of Chancery, defined, 1 coincident with the jurisdiction over trusts, and other analogous relations, 3 the vadoss branches of, classified, 9 over charities, 166, ISO under Infants' Settlement Act, 297, et seq. Lands Clauses Act, 18, 260, 261, 279 Law of Froparty Amendment Act, 811 Leases and Sales Act, 806 Trustee Acts, 292—296 Trustee Belief Acts, 254, 268, 273, 277 KIN, NEXT OF, entitled to administer estate of intestate, 25, 34 enquiries as to, 30, 324 their rights under Statutes of Distribution, 115, 116, et aeq. See XHstr^ruiioTi, Statwtes of. LANDS CLAUSES CONSOLIDATION ACT, 8 Vict. e. 18, 264, 278 conversion effected by, 281 costs under, 281 jurisdiction under, administrative, 13 nature and principle of, 279 hmr it arose, 13, 260, 261 part of the statutory administrative jurisdiction, 264 Mi INDEX. LANDS CLAUSES CONSOLIDATION A.Cn:—conitnued. inveBtment of money under, in other lands, 280 redeeming land-tax, 279, 280 incumbrances, 280 rebuilding, 280 payment to party absolutely entitled, 280 monies paid in under, whether real or personal estate, 2Sl reason and objects of the administrative sections, 12, 260, 261, 279 sections dealt with in present work, 264 LAND TAX, redemption of, under Lands Clauses Act, 279, 280 LAW OF PBOPERTT AMENDMENT ACTS (22 & 23 Viot. c. 35, and 23 & 24 Tict. 0. 38), 310 investment under, in what seonrities, 314 jurisdiction under, how far administrative, 14 part of the statutory administrative jurisdiction, 265 powers conferred on the Court by, 311 of investment conferred by, 311 direction and advice conferred by, 315 construction o^ 315, 316 principle and objects o^ 15 LEASES AND SALES OF SETTLED ESTATES ACTS (19 & 20 Vict, c. 120, and 21 & 22 Vict. c. 77), 305 application of the Acts, simple case, 307 concurrently with the ordinary jurisdiction, to , effect a sale, 308 double, in one sale, 308, 309 of proceeds of sale under Act, 310 conversion effected by, 309 jurisdiction under, how far administrative, 14 part of the statutory administrative jurisdiction, 265 principle and objects of, 15, 306 LEASE, covenants in, contingent breaches, no indemnity now considered necessary, 109 of infant's and/eme coverte's lands, under 1 Will. IV. c. 65, 305, n. renewal of, by trustee, raises constructive trust, 210 LEASEHOLDS, for years, are assets in hands of executor, 69 for lives, assets in hands of executor, when, and when real assets, 69 legal assets, 77 LEGACIES, abatement of, 110, n.. Ill admission of assets for, what constitutes, 61, 63, 108, 119 appropriation of, 113 assent to, 113 n. iNDfix. 345 LEGACIES— coniwmetZ. certificate of amount due for, 113 charged on real estate, not secured by appropriation of assets, 113 demonstrative, 111 considered specific, for purposes of administration. 111 duty, payment of, 138 n. general, order of payment, 108 infant's, paid into Court, 261, 278 interest on, 113 order of payment, next after debts, 91, 97, 101, 108, 112 payment of, in course of administration, 101, 108, 112, 113 before debts, executor is liable personally, whetlier he act with or without notice, 108 residuary, order of payment of, 108, 112 specific, order of payment of, 110 LEGAL ASSETS, distinguished from equitable, 74 — 76 what, 75—79, 135—137 equity of redemption, 76, 77 equitable reversion in stock, 77 general personal estate, 135 leaseholds for lives, 77 real estate, descended, or specifically devised or appointed, quoad specialty creditors only, 136, 137 but not further, 78, 121, 135, 136 not real or personal estate charged only, or devised or be- queathed in trust for debts, 135, 136 trust of lands, 86 LEGATEE, entitled as of course to account of testator's estate, 34 — 36 infant, payment into Court of the legacy, under 36 Geo. III., 261, 278 Trustee Belief Acts, 278 inquiries as to, 30 marshalling in favour of, 127 paid improperly, liable to refand, 42, 110 when to be paid, and how, 108, 112, 114 LEGATEE, RESIDUAET, 114 bill by, on behalf of himself and others, 59. See Legatee's Suit. and heir, rights, 112, 114 inqniries as to, 29, 30 payment to, order of, 108, 112, 114 refunding for debts, 110 LEGATEE'S SUIT, for administration of assets, single or general, 54, 59, 60 decree in, 29, 30, 60, 321 LESSOE, contingent breach of covenant with, will not support creditor's suit, 28 n. $i€ JNPEX;, LIMITATIONS, STATUTE OP, in creditor's suit, debts from executor or aAministrator, if liiijT^, are rerired by jp-ebarte or letters of administration, 107 LOCKE KING'S ACT (1? & 18 Vict. c. U3J(, 130 LUNACY, jprisdiction in, not purely administrati<7e; 15 LUNATIC, estates o^ conreyances, leases, moifligages, and sales of, MS n. trustee or mortgagee, divesting lof estates from, S90, 29%. See trustee Aids. appointment of new lamstee in place of, 292 — 297 MAINTENANCE. See Infant, Gmrdicm. of infant, 244, 248, 249 MARITAL RIGHT to personal estate of wife, 299 MARRIAGE, gift to husband of wife's personalty, 299 gifts in furtherance of, good charitable ^fts, 146 infant's, see Infant, Ir^fmta' Settlement Acts. in contempt Of Court, 244, 304 settlement pursuant tp articles^ 221 — 226 usual powers in, 225 — 226 MARRIED WOMAN. See Feme Covertt. MARSHALLING, assets among creditors and legatees, principle of, 124, 125, 127 in favour of legatees, 127 to meet vendors lien (m pui'ahased estate, 129 not ordered in favour of charities, 127 n., 190 . legatees of personalty, against devisees of realty, 127 n. MISTAKE, admission of assets on a, 62 n., 64 MIXED FUND of real and personal estate, for payment of debts, 13^ MORTGAGE, inquiries as to, 88, 320, 323 investment on, now authorised for trust funds, 315 formerly not authorised, but not necessarily called in, ol2 jurisdiction in, not strictly of an administrative character, 17 payable out of personal estate, primd facie, 128, 129 new rule introduced by Locke King's Act, 130 old rule prevails in mortgages of per' Bonalty, 131 See Mortgagee. DSDEX. 847 MOETGtAGEE, concurring or not In sale of mortgaged estate, when miier adiDaioistra- iion, xides as to, 89, 320, n. costs in administration of mortgagor's assets, 95, 96 creditor's suit by, 96 infantj lunatic, or out of jurisdiction, mortgaged property may be divested under Trustee Acts, 290 infant heir, or de-risee of, wiere debt paid, is trustee -sfithjn tbie Trustee Act, 291 party to administration must elect whether he •will join in sale or not, 89, 320, n. sale cannot be ordered -without Tiis consent, except aiibjeot to the mortgage, 320, n. See Trustee Act. * MORTMAIN ACT (9 Geo. II. c. 36), 150 et seq, 185 et seg. course of administration under it, 191 its effect estimated, 151 operation, 191 form of bequest to prevent partial failure of charity gift, 191, 192 gifts prohibited by, of judgment debts, 188 leasehold land, 188 money proceeds of testator's land, 186, 187 money proceeds of other land, if charity can take it as land, 187, 188 jmoney to purchase land, 192 or to build church, &c., 193 moorings in river, 188 mortgages of tolls aad rates, 188 lands generally, 184— 186,. 189 gifts not prohibited by, pure personalty, 184, 185 shares in public compainies, 189 not bringing &esh land into Mortmain, 193 school, to establish, 193 good in one alternative, 194 marshalling not afiplicalde to avoid or mitigate the effect of Act, 190 rule for apportioning pure personalty, and other, and avoiding charity gift pra Icmto, 291 MULTIFARIOUSNESS no longer objected to a suit for administration of real and personal estate together, 38, u. * NEXT OF KIN entitled to administer estate of intestate, 25 inquiries as to, 30, 324 See Distribuiion, Statutes of, NOTE, unsealed, debt on, payment in course of administration, 106 NOTICE, constructive of a trust, purchaser -with, bound, 209 purchaser without, not bound, 209 348 INDEX. OEDER of application of assets in payment of defets, 135 See Admmistration, Assets, Debts, Decree, Legatees, Priorities. OUTSTANDING, estate, inc[niry for, 29 got in, 33 PARTITION, effected by application of Trustee Act, 29 PAETIBS, rules dispensing with, in suit for administration, 28 to suit for administration, 23, 24, 27, 28 PARTNERSHIP, jurisdiction in, not purely administrative, 15 PAYMENT into Court, in suit for administration of assets, 83 motion for, on answer, 83 order for, on Chief Clerk's certificate, 83 under Trustee Relief Act, see Trustee Relief Act. out of Court, 243 of costs of administration, first claim in the administration, 91, 92 debts, in course of administration, 91, 97, 101 et seq. funeral and testamentary expenses, in like course, 91, 97, 100 legacies, m like course, 91, 97, 101, 108, 112, 114] legacy, admission of assets for all legacies, when, 108, 109 debts, when, 62, 108. See Legacy, Priorities. wife's share or legacy to husband, 250 PERPETUITIES, rule against, stated, 233 — 235 period limited by, 235 PERSONAL ESTATE, administration of, 29, 31 on summons, 46. See Administration Suit,. Cre- ditor's Suit. exonerated from its primary liability to debts and legacies, when, 128, 135, 136 primarily liable to debts and legacies (general rule, 121), 135, 137 l-ERSONAL R^RESENTATIVE, appointed by Court, 24, n, (a) necessary party to suit for administration of assets, 23, 26 who is personal representative, 24 — 26 what sufficient, 24. See Exeauior, Admmistrator. PETITION, for administration of charities, under Sir S. Bomilly's Act, 176 fund, paid into Court under Trustee Relief Act, 266, 277 appointing trustees, under Trustee Acts, 284, 287, 288 by executors under Sir George Turner's Act, 45, 61, 52, n. for vesting orders toder Trustee Act, 284, 288, 292 INDEX. 349 POUCY, LIFE ASSURANCE, money administered under Trustee Relief Act, 278 vesting right to sue on, under Trustee Act, 290, 291 POOR, charity for, good within the Statute of Ciharitable Uses, 146 POWERS, of appointment exercised, are assets, 73, 87, 122, 136 not exercised not assets, 73,136 statutory, of admiuisti-ation, conferred on the Court of Chancery, 253, 256, 267, 258, 283, 284 PRACTICE. See Account, 4idmmistraiion, £iU, Chamlers, Decree, Inquiries, Petition, Smnmons, dec, PREFERENCE, obtained by creditor fiUng a bill for his own demand only, 65 how far executor csin give a preference, between creditors of equal rank, 61, 62, 99. See Priorities, PRIORITIES, of application of assets, inter se, 90, 97, 119, 121, 128, 135 claims on assets generally, 91, 96 costs of the various parties, inter se, 95 creditors, as between, do not obtain with regard to equitable assets, 75, 108 creditors of equal rank, inter se, 99 Crown debts, 101 debts (generally) over legacies, in administration of assets, 91, 97, 101, 108 debts inter se, 101 to Crown, 101 by judgment, 102 if registered, 103 of record, 102 rent for, 105 simple contract, 106 special contract, 105 special statute, 101 statute and recognizance, 102 voluntary bonds and covenants, 107 wages for, 107 enforcement of, 98, 99, 108 legacies, generally, 108 demonstrative, same as specific. 111 general, payable after specific, 108 residuary, last paid, 108, 114 specific, first paid, 108, 110 See Exoneration, Marshallvag, Personal Estate, Seal Estate. PRISONERS, gift to redeem, a good charity, 146, and see 162 850 nsEBX. PROBATE, conclusive, on -wfakt^xAatB, 24, m. (c) notiagainst Ihelr, .322, n, must be obtained before decree, 24 revives debt from executor, barred by statute, 107 PKOCEDUKB, form of, for administration of assets, ii PEOOP OF WILL. See Will, EskMishmmO. PUBLIC BUKDENS, gift in ease of, good cbaritable gift, 146 PUBLIC TRUSTS. See Charity, Trmts dumiaUe, PUBLIC WORKS, gift for, good cbamtable gift, 14S PURCHASE, by agent, solicitor, or trustee for sale, set aside, 268, '269 solicitor of trustee for sale bold bad, on application under Trustee Relief Acts, 268 trustee for sale, raises cojjstrucfivie trust of the benefit arising thereby, 210 PURCHASE MONET of real estate, whether payable into Court under Trustee Belief Acts, 277, 278 RAILWAY COMPANY. See Lomdi Clames Oonsolidathn Act. RATES. See Pullic Bvird^ns, Taxes. REAL ESTATE, administration of, 30, 37, 46, 47, 84, 112. Bee Administration Sait. not on suit by single creditor, 57 appointed, liable to debts, 7S, 87, 122, 137 assets for payment of debts, 38, 78, 84, 85, 87, 112, 123, 136 charged with debts in exoneration of personal estate, 87, 134, 136 descended, its UabiUty to debts, 84, 119, 1^2, 133, 135, 136 and afterwards settled or aliened, 86 . devised, its liability to debts, 85, 119, 122, 135 in trust for payment of debts, 135 is specific, as between the devisees, and the legatees of the personalty, 112 eqiiitable assets for debts, when, 78, 123, 136 inquiry as to, 88, 320, 323 liability order of, for payment of debts and legades, 122, 136 mortgaged, sale of, 89 order of payment of debts out of, 121, 122, L36 sale of, SO, 88, 320, ju. ordered on summons, when, 46, 47 specifically devised, iow fer liable to dabts, 136 INDEX. 351 SEAL "EST k'!^— continued. snmmons to administer, when applicable, 46, 47 title to administer, by creditor or beneficiary, 37, 46 trustee, 39, 46 trust of, legal assets, 86. See Assets, Seal. RECEIPT OF ASSETS, necessary before executor or administrator is chargeable, 74, 79 which might have been received but were not,, not (Jiarged against executor, unless on special case, SO constructive, by executor, 81 EECOGNISANOE, debt by, 104 REDEMPTION of prisoners, gift for, a good charity, 146, 162, 163 suit, not strictly of an administrative character, 17 REFUND, Ii^tees and next of kin liable to, for payment of debts, 42, 109 REGISTRATION of judgment necessary to insure priority, 103 BELATOB, in adminiafiration of charities, 172, 173 need not be personally interested, 173 RELEASE, question of, cannot be tried in summons-suit, 49 RENEWED LEASH, subject to trusts affecting original lease, 210 RENT, account of, 30, 321 n. not directed until deficiency shown, 321, n. debt for, ranks with specialty debt, 105 priority of, over simple contract debts, 105 held pur awter vie, assets for payment of debts, 71 REPRESENTATION of estate of testator or intestate, devolution o^ 28 REPRESENTATIVE, ^ appointment of by the Court, 24, n. (a) RESIDUE, administration of, 11 4 according to will, 114 undisposed of, title to, 115 distribution under Statutes of Distribution, 115, 116 ; Appendix B. See Distrihuiwn, Statutes of. executor, when entitled to, 8, 115, 116 liable to creditors, before property specifically given, 135 . 352 INDEX. RESIDTJE— continued. undisposed of, real estate descends to heir, 115 Crown takes, when, 115, 116 primary fund for costs of administration, 94 RBTAINEE of his debt by executor or administrator, right of, 107 EEYERSIONAKT interest of female infant, cannot be bound by her marriage settlement, 300, 304 except under the Infants' Settlement Act, 305 EOMILLT'S (SIR JOHN) ACT, making real estate liable to simple contract debts, 38, 78, 85, 124, 136 ROMILLT'S (SIR SAMUEL) ACT, for administration of charities on petition, 176 liberal construction now put upon it, 178 SALE OF SETTLED ESTATES, see Leases and Sales of Settled Estates Act. SALE, of real estate in administration suit, 30, 88, 320 n. authority of Court of Chancery, to order, 241, 242 when directed, 30, 88, 241, 242, 320, n., 322 costs of suit, for, 242 creditora suit, in, 30, 88, 320, n. ' debts, to raise, 242 SCHEME, for administration of charity, construction of, 195, 196 direction of, in what oases, 158, 160, 176, 194 by Charity Commissioners, 182 by Court, 176, 182, 185, 194 settled in Chambers, 185 varied by Court, when, 197 what it is, 195 for cypres application of charity funds, 158, 160, 162, 163 SCHOOL, gift to found, good charitable gift, 146 subject to the Mortmain Act, 193 SECURING ASSETS, part of the object of the administration, 83 by payment into Court, 83, 84 securing legacy payable infuturo, or annuity, 113 SEPARATE ACCOUNT, fund carried to, 243 SETTLEMENT, marriage, in pursuance of articles, 221—226 INDEX. 353 SETTLEMENT— c(m«iBMec2. post-nuptial, voluntary and ineffectual against creditors, or subsenuent purchasers for value, 299 rectification of, must be by regular suit for the purpose, 273 on ward's marriage, 302 ■wife's equity to, 250 — 252 See Infomt, Infants' SetiUment Act, and Feme Covert. SHAKES in public companies, when within the Mortmain Act, 189 et seq. SiaN MANUAL, application of charitable gifts by, 144, 157 — 160 SIMPLE CONTEACT DEBT, what, 105 «... payment of, in course of administration, 106 See Debt. SOLICITOR to trustee for sale, purchase by, set aside, 268 SPECIAL OCCUPAKT, heir taking aa, estate is assets by descent, 70 of copyholds, 71 of rents and incorporeal hereditaments, 71 SPECIALTY DEBT, what, 105 to the Crown, 101 payment of, in coarse of administration, 105 rent, debt for, ranks as, 105 priority of, 105 See Debt. SPECIFIC BEQUESTS AND DEVISES, effect of, in withdrawing property from creditors, 133 liable to pay debta, (rateably), 136 STATUTE, debts by, 104 See Debt. STATUTES OF DISTRIBUTION. See Distnbwtvm. STATUTES OF LIMITATION. See LimUatiom. STATUTORY ADMINISTRATION. See Administration Statuiory, Lands Clauses Consolidation Act, Trustee Acts, Trustee Relief Acta, ifcc, and Table of Statutes, ante, p. xxvii. STAYING PROCEEDINGS, where two concurrent administration suits, 50 STOCK, bant, and bank annuities, investment of trust fands on, 315 SUMMONS, suit by, for administration of charities, 182 personal estate, 46 real estate, 46, 47 854 INDEX STMUOmS— continued. suit by, doctrine- of aJmiasion of Jtssets; not appKcaBle to, 49 inapplicable to breaoi of trust, 48 or -wilfnl defanlt cases, 49 on any special case,, 4'9 ■where release is in issue, 49 on questions as to properliy BpBciiealty be- queathed, 50 on qiuestions of disputed construction,. 50 cannot be instituted by executor or administrator, 50 but for order under Sir Gt. Turner's Act,, may now be insti- tuted, 62 when applicable, and when not generally, 5^ parties to, 27, n. SUPERSTITIOUS USES, gifts to, illegal, 150 TAXES, gifts in ease of, good ohanAtble gifts, 146 TESTAMENTARY expenses, what, and in what order payable; 100 THELLUSSON ACT, provisions of, 239 THELLUSSON CASE, 232, 238 TITLE to administer assets of deceased, person in Court, s£ creditors;. 34 beneficiaries under wiU, 34 next of kin, 34 executors, 34 — 89 trustees, & TRADE, ; jgifts in promotion of, good charitable gifts, 146' TRUST, administration of, origin of administration generally, 5 early instances of, 4, 5 one of the principal branches of aidministitittroll, 10, 141 and administration of assets; distinction between; II assumed by the Court of Chancery,, on administiation decree,, 33, 100 breach of, not proper subject of summons decree,. 48 charitable, origin of jurisdiction over, 142,, 143 what, 145, 14ff constructive, defined by Lord Hardwiote,. 203 by Mr.. Lewin,, 204- early authority on, 205 raised in fevour of person payingpurchase money, 203, 207 on purchase by trustee for sale on his own account, 210, 211 renewa,! of lease by trustee, 210 purchase, incomplete, 211 rule stated, 211 INDEX. 355 TKTJST— continued. establishment of, in course of administration, 201 executory, defined, 217 — 228 execution of, by the Court, 218, 219 difference between marriage articles and wills, 221 — 3 heirlooms, relative to, 228 express or implied, 202 express, what expression sufficient, 215, 216 implied, by law, when, 202, 204 property held in, not assets for purposes of trustee's estate, 73 public or private, 141 of real estate, legal assets for debts, 86 resulting, 201, 212, 213, 215 in default of declaration, 204, 212 on failure of directions to convert fund into money, or vice vend, 213 See Chantable Gift, Charily. TRUSTEE, appointment of new, in ordinary coarse, 285 under Trustee Acts, 284, 292—297 in place of trustee abroad, 290 — 293 declining to continue, 285, 293, 294 delinquent trustee, 285, 288, 289, 292, 294—297 infant, 256, 290—293 lunatic, 290—293 trustee refusing to convey, 291 — 293 retire, 285 whose survivorship is uncertain, 291—293 without heir, 291—293 bankrupt, removal of, 288, n, breach of trust by, cannot be redressed by summons suit, 48 costs, liable to pay, if needlessly or capriciously instituting, or causing suit, 40, 41, 92, 93, 273, 275, 277 costs, charges, and expenses, entitled to, out of fund administered, 92 Court of Chancery becomes, on decree made for administration, 32, 33, 100 disputing the trust, cannot be removed on petition, 289 executor, when a trustee, and when not, 8, 11 entitled to protection of Court, 39, 41, 50, 109 infant, divesting of trust property vested in, 256, 290, 291 liability to account, 40, 43 for costs of administration improperly instituted or caused by him, 40, 41, 92, 93, 273, 275, 277 for co-trustees, 81 after distributing estate, for subsequent claims, 42, n. {d) lunatic, order divesting estate from, 254, 290, 291 payment by, into Court, 83. See Trustee Relief Act. refusing to convey or transfer, vesting order may be obtained on petition, 291 A A 356 INDEX. TRUSTEE— ... Shelford's Real Property Statutes. Sixth Edition. The Real Property Statutes passed in the Bieigns of King William IV. and Queen Victoria, including Prescription, Limitation of Actions, Abolition of'Fineg, .&c., Payment of Debts, Wills, Judgments, the Trustee Acts, and Leases and Sales of Settled Estates. With copious , Notes and Forms of Deeds. Sixth Edition, with lyany Alterations and Additidns. By Leonard Shelford, Esq., of the, Middle Temple, Barrister-at-Law. 12mo. Price 1^ 5s. boards. , 1856. Steer's Parish Law. Third Edition. Being a Digest of the Law relating to the Civil snd^ Edelesiastical Government of Parishes, Friendly Societies, &c., &c. ; and the Relief, Settlement and Removal of the Poor. Considerably enlarged and altered, by Henry John Hodgson, Esq., Barrister- at- Law, Recorder of Ludlow, late Fellow of Trinity GdHege, Cambridge. In 1 vol. 8vo, Price 11. 8s. cloth. 1857. Davidson's Concise Precedents. Fifth Edition. Concise Precedents in Conveyancing, adapted to the Act to amend the Law of Real Property, 8 & 9 Vict. c. 106 ; with Practical Notes and Observations on the Act, arid on the Act for the Cesser of Attendant Terms. By Charles Davidson, Esq., of Lincoln's Inn, Barrister- at-Law, and late Fellow of Christ's College, Cambridge. 12m0v Price 9a. boards. 18S7. J^ htftifini I'liiii iifii"ifririii t r i iii I'lirMii'ii^lVi