1836. DENTON v. DAVY. the 22nd day of May 1821, made between the said James Davy and Stephen Denton, by his said attorney, and Charles Gatfield, by his said attorney, of the one part, and the said John Coley, of the other part, the said John Coley covenanted with the said James Davy, and the said Stephen Denton and Charles Gatfield, their heirs, executors, administrators and assigns, that he would, in the year 1821, ship to such ports or places in Great Britain, to some good and substantial merchant and merchants as he the said John Coley should elect, 50 tierces of coffee, of the average weight of 750 lbs. the nett weight, and also that he would in the year 1822, ship 150 tierces of coffee, and that in every year succeeding, until the whole of the six bonds should be paid, he would ship 200 tierces of coffee, the proceeds of the shipments to be paid to the said James Davy, and the said Stephen Denton and Charles Gatfield, trustees as aforesaid ; and the said James Davy, and the said Stephen Denton and Charles Gatfield, covenanted, on their part, not to proceed against the said John Coley on account of the said bonds for the space of 12 years from the date of that indenture. That the said James Davy departed this life some time in the year 1825, leaving the appellant, Stephen Denton, and Charles Gatfield, the surviving trustees under the testator's will, and that John Coley continued to ship the annual crops of coffee made on the said plantations, in liquidation of the monies secured under the mortgage; but that, at the time of the death of the said James Davy, there was a very considerable sum of money due on the said securities, and still remained due thereon. The bill then stated, that although Davy had the management, and appropriated the crops until the sale to Coley, he never accounted to Denton and Gatfield, or to the devisees of the said Henry Palmer. That although the appellant, Denton, was entitled to a moiety of the commissions on the crops up to the time he quitted the island, and he and Gatfield were each entitled to a third of the commissions on the sale of the plantations, yet Davy never accounted to them for their share of the same, but in his accounts with the trust-estate, charged higher commissions than were allowed him by law. That in 1825 Davy, being in England, tendered certain accounts with the testator's Henry Palmer's estate, which, being unsupported by vouchers, and many of the charges appearing improper, the complainants, Denton and Gatfield, refused to sanction. And the bill charged, that most of the accounts of the crops, and of their appropriation, appeared to have been recorded after the period required by law. That Davy charged the estate with his own individual commissions at the rate of six per cent. on the annual crops, and also with commissions at the same rate, amounting to 2,4007., on the purchase-money of the plantations, which sum was charged in Great Britain without giving the testator's estate credit for the current premium on bills; that Davy was entitled only to a moiety of the commissions at six per cent. on the annual rents, and that the appellant, Denton, was entitled to the other moiety, and that the complainants, Denton and Gatfield, were entitled to share equally with Davy in the commissions on the sale to Coley. The bill then stated the will of James Davy, appointing the respondents, James Lewis Davy and John 1836. DENTON v. DAVY. 1836. DENTON 1. DAVY Davy, his sons, and John Coley, with others, his executors. That the testator afterwards departed this life; and probate was granted, with the will annexed, in Jamaica, to the three executors abovementioned. That by indentures of the 3d & 4th March 1826, the respondent, John Davy, barred his estate tail in one individual moiety of the real estate and shares demised to him by his father, the said James Davy. And the complainants submitted their right to an account of Davy's intermissions with the testator's estate, offering to account themselves, and insisting, that they were entitled to be paid the commissions improperly retained by Davy, together with any balance due from Davy to the estate of Henry Palmer, and prayed that it might be declared and decreed by the Court, that the charges made by James Davy, for his own individual commissions on the annual rents, profits and proceeds of the real and personal estate of the testator, Henry Palmer, and on the sale of the plantations, slaves, stock and premises to the respondent, John Coley, were excessive and illegal; and that the complainant, Stephen Denton, was entitled to a moiety of the commissions on the annual rents, profits and proceeds of the testator's real and personal estate, at the rate of 61. per cent., during the period he resided in the island after the testator's decease, and that James Davy was only entitled to the other moiety of such commissions; and that the complainants, Stephen Denton and Charles Gatfield, were entitled to share equally with him in the commissions on the sale of the testator's estate to the respondent, John Coley; and that it might be referred to one of the Masters of the Court to take an account of the actions and transactions, receipts, payments and disbursements of James Davy, with the said testator's real and personal estate; and that, in taking such account, the said Master might be directed not to allow the estate of James Davy any other or greater amount of commissions, than at the rates thereinbefore stated, and prayed that it might also be, and stand referred to the Master to take an account of the actions and transactions, receipts, payments and disbursements of them, the complainants, with the real and personal estate of the testator; and that the Master might also take an account of the excess of commissions; and that the respondents, James Lewis Davy, John Davy and John Coley, or some or one of them, might either admit assets of their testator, the said James Davy, in their hands, sufficient to pay the amount to be reported due to the complainants, in respect of the excess of commissions which had been so retained by the said James Davy, with interest as aforesaid, as well as to pay to them, the complainants, in the character of trustees, what might be ascertained and reported to be due to their testator's estate, on the result of the accounts to be taken of the actions and transactions of James Davy, with the said testator's real and personal estate, together with the complainants' costs of suit, or that the Master might be directed to take an account of the real and personal estate of James Davy come to the hands of the respondents, James Lewis Davy, John Davy and John Coley, and of their actions and transactions therewith, and that they might be directed to come to such accounts; and that it might be decreed that the respondents, James Lewis Davy, John Davy and John Coley, should pay the complainants out of any assets out of the estate of 1836. DENTON v. DAVY 1836. DENTON v. DAVY. James Davy in their hands, the several sums to be reported due from the estate of James Davy on the several accounts before prayed, with interest and costs, or in default of payment thereof, or if the personal estate of James Davy should prove insufficient for payment of the sums to be reported due to the complainants, with interest and costs, that a sufficient part of the real estate and slaves of James Davy might be sold for the purpose of paying the complainants. To this bill the respondents filed their answer, admitting the will and death of the testator, Henry Palmer, and the probate thereof as alleged in the bill, and then said that they had heard and believed that the appellant, Stephen Denton, did not act or qualify as Palmer's executor until the end of 1819, when he qualified; that he did not after that time act, but left the island of Jamaica in the spring of 1820. That upon Henry Palmer's death, James Davy had the exclusive possession and management of the several estates and properties in the bill named, until the sale to Coley, and they denied that Denton ever entered into possession, or exercised any control over the same; and in proof thereof they set forth a letter from James Somerville, the acting overseer of the estates of Palmer, wherein he stated that he was employed by the late James Davy, and continued acting as overseer until they were sold to Coley, when he gave up the charge, and that no other person than James Davy interfered with him in the management of those properties. They admitted that Ann Palmer and Stephen Denton quitted the island at the time in the bill mentioned; but they positively denied that Davy, Denton and Gatfield entered into the agreement for the sale |