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Anon. In the matter of 52 Geo. 3, c. 101.

I think that the plea is not liable to either of the objections which have been insisted upon in argument, and that it is a good plea, and must be allowed.

[Plea allowed, with liberty to amend.

[*262]

1841: 17th June.

*ANON.

Taxation.-Solicitor and client.—Costs.

If a person out of the jurisdiction, petitions for the taxation of his solicitor's bill, he must give security for the costs of the taxation, and also for the balance that may be found due from him.

THE Vice-Chancellor ruled that, where a person who is out of the jurisdiction of the court, petitions to have his solicitor's bill taxed, he must give security, to be approved of by the master, for the costs of the petition, and also for the balance that may be found due, from him, on the taxation.

IN THE MATTER OF 52 GEO. III. c. 101.

1841 25th June.

Charity-Trustees.

On a petition for the appointment of new trustees of a charity, the court directed that, in the deed appointing the new trustees, a power should be inserted, for appointing new trustees in future.

THIS was a petition, presented under Sir Samuel Romilly's Act, for the appointment of new trustees of charity-property.

Mr. Goodeve appeared in support of the petition; and, at his request,

Lumsden v. Fraser.

The Vice-Chancellor ordered that, in the deed appointing the new trustees, provision should be made for the appointment of new trustees in future. [1]

*LUMSDEN v. FRASER.

[*263]

1841 25th June.

Heir and executor.-Intermediate rents.

An agreement was made for the sale of an estate at a future time. Before that time arrived, the vendor died intestate. Held, that the rents accrued between the vendor's death and time for completing the contract, belonged to the vendor's heir, and not to his executor.

A CONTRACT was entered into for the sale of an estate, which was to be completed at a future time. Before that time arrived, the vendor died intestate as to the estate agreed to be sold. On his death, his heir entered into the receipt of the rents of the estate, and continued to receive them until the time for completing the contract arrived. The question was whether he was entitled to retain the rents which he had received, or ought to account for them to the vendor's personal representative.

THE VICE-CHANCELLOR:-If a contract for the sale of an estate is to be performed at a future time, and, before that time arrives, the vendor dies, the law casts the whole legal estate upon his heir in the meantime: and if, by virtue of the interest which so devolves upon him, he receives the rents of the property until the time for performance of the agreement arrives, the question is whether any equity then arises, to the personal

[1] In Bowles v. Weeks, 14 Sim. 91. The court decided that, on an application for the appointment of new trustees of a will, it would not direct a power to be inserted in the deed for the appointment of new trustees toties quoties. The Vice-Chancellor said, that if he were to give the direction, he might affect the interest of unborn parties.

Christian v. Devereux.

representative of the vendor, which entitles him to what the heir has received ?

The law favors the heir rather than the executor: and my opinion is that what the heir has received, he is entitled to keep.

Mr. Knight Bruce, Mr. Stuart, Mr. Sidebottom, Mr. Daniel and Mr. W. K. Bayley were counsel in the cause.

[*264] *EDWARD JOSEPH CHRISTIAN v. JAMES EDWARD DEVEREUX, THE COMMISSIONERS OF CHARITABLE DONATIONS AND BEQUESTS IN IRELAND, and others:

and

THE COMMISSIONERS OF CHARITABLE DONATIONS AND BE QUESTS IN IRELAND v. JAMES EDWARD DEVEREUX, and others.

Stop-order-Stamp on letters of administration.-Administrator. 1841: 8th July.

A. claimed a fund in court, as his father's administrator; but the letters of administration were not stamped to a sufficient amount. The court refused to grant him a stop-order, until he had procured the letters to be sufficiently stamped.

Statute of Limitations (3 & 4 Will. 4, c. 27.)-Residue.

The word "legacy," in 3 & 4 Will. 4, c. 27, s. 40, includes a residue or share of a residue semble.

Executor.-Residue.

An executor is entitled to a residue or share of a residue bequeathed to him, although he has not proved the will.

A PETITION presented by Edward Joseph Christian, the plaintiff in the cause first above mentioned, stated the will and codicil of James Fanning, deceased, dated respectively in 1802

Christian v. Devereux.

and 1804, under which (as the petition stated) and in conse quence of Januarius Fanning, one of the residuary legatees, having died in the testator's lifetime, Edward Christian and the defendant, Devereux, who were the other residuary legatees and the executors of the will and codicil, became entitled to the whole residuary personal estate of the testator. The petition then stated that the testator died in 1806, and that, in 1817, Devereux alone proved the will and codicil, and took upon himself the whole execution thereof; that Devereux afterwards made divers assignments of his share of the testator's residuary estate, by indentures, the dates and substance of which were stated, and thereby severed the joint-tenancy which had existed, between him and Edward Christian, in the testator's residuary estate, and he and E. Christian thereby became tenants in common thereof: that the bill in the cause secondly above mentioned, was filed for an account of what was due in re- [*265] spect of a bequest made, by the testator, for the benefit of the poor of certain parishes in Ireland; that, pursuant to orders made in March, 1823, and in May and July, 1827, certain sums had been paid into court, in the last-mentioned cause, and invested in the three per cents.; and that, by the decree in that cause, dated the 8th of August, 1827, the master was or dered to take an account of what was due in respect of the charitable bequest in the testator's will: but that no account of the testator's personal estate was directed to be taken, nor was any inquiry directed to be made as to the testator's debts; and that such account had never been taken, nor had any such inquiry ever been made: that the master, by his report made in pursu ance of the decree, found that the sum of 34,2867. consols was due in respect of the charitable bequest; and, by an order of the 2d of June, 1841, made, in the secondly above-mentioned cause, on the petition of the plaintiffs in that cause, the report was confirmed, and it was ordered that 34,2867. consols, part of 46,2867. 14s. 8d. like stock standing in the name of the accountant-general in trust in the last-mentioned cause, should be transferred to the plaintiffs in that cause.

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Christian v. Devereux.

The petition then stated that Edward Christian was not made a party to the last-mentioned suit, or to any suit concerning the testator's estate and effects: and that he was never informed, by Devereux or by any other person, that he had any interest therein, or was entitled to any gift or benefit under the testator's will and codicil, or either of them; that the last-mentioned suit was instituted and carried on wholly unknown to Edward Chris

tian, and was so framed and conducted as that no in[*266] quiry was directed or advertisement published *so as to give him any chance of hearing of that suit; that, towards the latter part of his life, he resided at Hammersmith, and died about the 20th of February, 1837, intestate; and, on the 25th of June, 1841, letters of administration to his estate were granted to the petitioner, who was one of his children: that the petitioner remained totally ignorant of the matters aforesaid (excepting Edward Christian's death and intestacy) until the beginning of June, 1841, when he was for the first time informed thereof; and, thereupon, took out the letters of administration: that the Commissioners of Charitable Donations, &c., had full knowledge that Edward Christian was entitled as before mentioned: but, acting in collusion with Devereux, they abstained from making him a party to the suit instituted by them, and never gave him any notice thereof: that Devereux had possessed property and effects of the testator to the amount of 6,000l. and upwards, which he had applied to his own use: that he well knew that Edward Christian was entitled as before mentioned, but he never, in his answer put in in the last-mentioned suit, suggested or referred to Edward Christian's rights and interests, or suggested that he should be made a party to that suit, or gave him any notice thereof or informed him that he was in any way interested therein or in the property the subject thereof: that the sum of 46,2867. 14s. 8d. consols still remained in court in trust in the secondly above-mentioned cause: that, if that fund should be paid out, the petitioner would be deprived of the means of recovering the share of the testator's estate and effects which he was entitled to: that he had applied to Devereux to account for the testator's personal estate and effects, and also had requested

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