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Moore v. Vinten.

MOORE v. VINTEN.

Trustee. Stat. 11 Geo. 4, and 1 Will. 4, c. 60.—Practice. 1841: 31st May.

A woman who was sole trustee for sale of real property, married a man who absconded and had not been heard of up to the hearing of the cause. The Court decreed a sale, and that the husband should be declared a trustee within the 11 Geo. 4 & 1 Will. 4, c. 60, s. 19; but declined to appoint a person to convey in his room, under the 8th section, on the ground that he was not the trustee "last known to have been seised;" there being a joint seisin in him and his wife. Proof of search for a trustee under the 24th section of the stat. 11 Geo. 4 & 1 Will. 4, c. 60, may be given, at the hearing of the cause, by affidavit.

KNIGHT BRIDGE, by his will, after bequeathing a trifling legacy and directing payment of his debts out of his real estates in case his personalty should be deficient, and after appointing Esther Gregson, who was his wife's daughter, John Lee and Richard Blizard, executrix and executors of his will, gave, devised and bequeathed all the residue of his real and personal estate unto and to the use of the said Esther Gregson, John Lee and Richard Blizard, their heirs, executors, administrators and assigns, according to the nature of the property, upon trust to sell the same in such manner and at such time as they, or the survivors or survivor of them should think fit; and, after pay- [*162] ing the expenses of the sale, upon trust to invest the

produce in the funds, and pay the dividends to the testator's wife, Esther Bridge, for her life; and, after her decease, upon trust to stand possessed of the said funds and securities and the dividends thereof, in trust for the testator's three children, Knight Bridge, Mary Moore and Elizabeth Beeson, and for his wife's two chil dren, Elizabeth Mills, and the said Esther Gregson, in equal shares; and, in case any of the said legatees should die without issue in the lifetime of the tenant for life, his or her share to go to the others.

Knight Bridge, the testator's son, died without issue in the tes tator's lifetime.

Moore v. Vinten.

The testator died in January, 1836. His widow remained in possession of the real estate during her life, and died in. August, 1837.

In February, 1836, Esther Gregson alone proved the testator's will. The other executors did not renounce probate, but they never interfered in the testator's affairs, and executed a deed of disclaimer of the trusts of the real estate.

In July, 1836, Esther Gregson married Thomas Vinten, who, in December, 1837, absconded, and had never been since heard of

It appeared that part of the testator's real estate, which consisted of several houses and gardens, had been sold since Mrs. Vinten's marriage, and the money received by her husband; and he had absconded with it.

[*163]

*The object of the bill was to have the remainder of the property sold, and the produce secured for the parties entitled to it.

The cause now came on for hearing; and, in support of the case made, by the bill, as to the absconding, continued absence and impossibility of finding the husband, the wife's answer and also an affidavit of search was read; and the only question was, what order could be made with reference to the execution of the trust for sale.

Mr. Wakefield and Mr. Collyer, for the plaintiff:-The husband being a trustee within the 19th section of the 11 Geo. 4 & 1 Will. 4, c. 60, it is competent for the court, under the 24th section, to receive proof, by affidavit, that the husband cannot be found: De Crespigny v. Ketson.(a)-[The Vice-Chancellor: There is no doubt about that: I settled the practice in that case.]-Then, the husband being a trustee within the meaning of the Act, and

(a) In Chan. Aug. 1839.

Moore v. Vinten.

it being unknown whether he be living or dead, the court will appoint a person to convey in his room, under the 8th section; and will do so by the same decree which declares him to be a trustee.(a) That a person who is merely a trustee by operation of law and who cannot be found, may be declared a trustee, under the Act, for the sole purpose of appointing a person to convey in his room under the 8th section, is apparent from Beale v. Ridge.(b)

Mr. G. Richards and Mr. Selwyn appeared for Mrs. Vinten, and offered no opposition.

*THE VICE-CHANCELLOR:-I doubt whether you can [*164] bring the husband within the 8th section of the Act.

In order to do this, you must show that he is the trustee "last known to have been seised:" but, here, there is a joint seisin in the husband and wife. You had better simply take a decree for sale, and let the husband be declared a trustee within the meaning of the Act. Perhaps you will hear of him again, before a conveyance is required; and then all further difficulty will be at an end.

(a) See Walton v. Merry, ante, Vol. VI., p. 328.

(b) 4 Y. & C. 248, cited.

CASES IN CHANCERY,

BEFORE THE

VICE-CHANCELLOR.

HEMINGWAY v. FERNANDES.

Practice.-New Orders.—Plaintiff.-Amended bill.

1841 3d June.

Although a plaintiff has amended his bill under au order not expressing that he does not require a further answer, he may (if no answer is filed within the time allowed by the 10th Order of 1833, and he thinks proper to waive the further answer) file a replication under the 14th Order, although that order applies, in terms, to those cases only in which the order to amend expresses that no further answer is required.

By the 10th General Order of 1833, a defendant is allowed five weeks in a town cause and seven weeks in a country cause, to plead, answer or demur, not demurring alone, to an amend ed bill to which the plaintiff requires an answer: and, under the 14th General Order, if a plaintiff obtains an order to amend without requiring a further answer, (a) and amends accordingly, he is at liberty, after the expiration of eight days, to file a repli cation or set down the cause for hearing on bill and answer, unless the defendant has previously served an order for time to answer, or taken out and served a warrant for time to answer the amended bill.

(a) If the plaintiff does not require a further answer, the order to amend ought to contain a statement to that effect; otherwise it is irregular. Boddington v. Woodley, ante, vol. IX, p. 380.

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