The Vice Chancellor made an order restraining Dr. Moffatt from prosecuting the action already commenced against the administratrix in respect of the above claim, for which Dr. Moffatt had brought in his charge under the decree; and also from commencing or prosecuting any other action in respect of the said claim, and that the costs of Dr. Moffatt in respect of the said action up to the time at which he had notice of the decree should be paid to him by the defendant, the administratrix, and the costs of the defendant of this motion be paid to her by Dr. Moffatt. On the 9th of February 1849 a motion was made on behalf of Dr. Moffatt by way of appeal before the Lord Chancellor that the order of the Vice Chancellor of England might be discharged or varied so far as to permit Dr. Moffatt to prosecute his said action, so far as might be requisite for the purpose of ascertaining what was justly due and owing to him from the estate of the testator in respect of such his claim; or that the Court would, notwithstanding the injunction aforesaid, give permission to Dr. Moffatt to prosecute his said action in so far as might be requisite for the purpose of ascertaining what was justly due and owing to him from the testator's estate in respect of his said claim, he, Dr. Moffatt undertaking to proceed in such action with due diligence, and not to sue out execution without the leave of the Court. Mr. Pole, in support of the appeal motion.-Where the ascertainment of the claims of a party can be more effectually had by litigation in the Scotch courts, this Court will allow the party to prosecute his action in Scotland to a verdict, with stay of execution-Jones v. Geddes (1). Here the Master will have to decide questions of Scotch law. The order of the Court below is also erroneous in directing the creditor to pay the costs of the application to stay proceedings-Jones v. Jones (2), Lord Portarlington v. Damer (3). The LORD CHANCELLOR.-On the principal question the party appealing has failed, for he is asking that which is con (1) 1 Phil. 724. (2) 5 Sim. 678. (3) 2 Phil. 262; s. c. 16 Law J. Rep. (N.s.) Chanc. 370. trary to the practice of the court. A decree for the administration of an estate is a judgment for all the creditors; and all must go in before the Master, and establish their claim. If any difficulty arises in the Master's office the Court may direct an action to be brought; but that case has not yet arisen. There is no specialty here, except that the cause of action arose in Scotland, and the witnesses are in Scotland. If I were to allow Dr. Moffatt to proceed, then every creditor whose debt arises abroad must be allowed to proceed notwithstanding a decree for administration of a testator's estate. Mr. Roundell Palmer and Mr. Cotton, contrà, as to the costs of the motion below. In this case the creditor against whom the injunction was granted had gone in and claimed the benefit of the decree; and then insisted upon his right to proceed in the Scotch courts. Upon this ground the Vice Chancellor thought that as he had improperly rendered the application necessary, he ought to pay the costs-Beauchamp v. the Marquis of Huntley (4). The LORD CHANCELLOR said, that as the creditor's conduct, after taking the benefit of the decree, had rendered the motion necessary, he ought to bear the costs of it. That the Vice Chancellor's order was right in all respects; and that the present application must be refused with costs. } MILLER v. PRIDDON. V.C. Feb. 21. Settlement-New Trustees-Appointment. A settlement contained a proviso that in case either of the trustees should die or become unwilling to act in the trusts, it should be lawful for the acting trustees or trustee for the time being, or the executors or administrators of any surviving trustee, to nominate any fit person to supply the place or places of the trustee or trustees respectively so dying or becoming unwilling to act. On the death of one trustee the survivor executed a deed, reciting that he was desirous of retiring from the trust, and that he had appointed another person to be a (4) Jac. 546. trustee in his place, and conveying the trust property to such new trustee :-Held, that the surviving trustee had power to nominate a sole trustee to act in his place, and that the appointment by recital was good. Held, also, that a joint and several receipt for purchase-money given by three persons, only one of whom had power to give a receipt, was a valid receipt by such one who had power. The bill stated that by a voluntary settlement, dated the 30th of October 1813, William Priddon duly conveyed to James Priddon and Thomas Storey, their heirs and assigns, certain freehold, leasehold, and copyhold property, in the county of Lincoln, upon trust out of the rents and profits thereof, or by sale or mortgage thereof, to raise a sum of 1,000l., to be paid to the children of Alice Milner, in manner therein mentioned; and subject to the trusts for raising the said sum of 1,000l., the said freehold, leasehold, and copyhold premises were to be held in trust for William Priddon the younger and Edward Priddon (the two sons of the settlor), in equal shares, as tenants in common, their heirs and assigns absolutely for ever. And it was declared, that it should be lawful for the trustees, James Priddon and Thomas Storey, or the survivor of them, his heirs and assigns, at any time or from time to time, at the request of William Priddon the younger and Edward Priddon respectively, their heirs and assigns, to sell or dispose of all or any part of the said premises, and convey the same to the purchaser or purchasers thereof as they should direct, discharged from all the trusts, powers, provisoes, and declarations by the said deed declared; and it was further directed that every receipt which should be given by the said trustees James Priddon and Thomas Storey, or the survivor of them, his heirs, executors, administrators or assigns, or his or their agents or agent, for any money advanced upon mortgage or received upon the sale of the estates, should be sufficient discharges for such sums of money. And it was also provided, that in case Priddon and Storey, or either of them, or any trustee or trustees to be appointed under the said provision in their place, or the place of any of them, should die or become unwilling or unable to act as the same should happen, it should be lawful for the said W. Priddon the elder (the settlor), during his life, and after his decease for the acting trustees or trustee for the time being under the said settlement, or for the executors or administrators of any surviving trustee, to nominate any fit person or persons to supply the place or places of the trustee or trustees respectively so dying or becoming unwilling to act as aforesaid; and that upon such appointment the trust estates should be conveyed in the usual manner to such new trustee or trustees. The bill then stated that in March 1815 the moiety of Edward Priddon in the settled estates was, for the valuable considerations therein mentioned, duly conveyed to and absolutely vested in William Priddon the younger, subject to such trusts as then remained to be performed; that Storey, one of the trustees of the settlement, died in the year 1828 without ever having acted in the trusts thereof; that William Priddon, the settlor, died in the year 1829; that by indentures of lease and release dated the 30th and 31st of December 1831, which recited that Priddon, the surviving trustee, was desirous of resigning and being discharged from the trusts of the said indenture of settlement, and had, with the approbation of William Priddon the younger, nominated and appointed Robert Cooke as a fit person to be appointed a trustee in his place, James Priddon, at the request of William Priddon the younger, confirmed unto Robert Cooke, his heirs and assigns, all the freehold, leasehold, and copyhold property comprised in the said indenture of settlement; and it was thereby declared that Robert Cooke should stand possessed of the same upon the trusts of the settlement. The bill alleged that the appointment of Robert Cooke as sole trustee of the settlement and the conveyance made to him of the trust estates constituted a breach of trust on the part of James Priddon, and rendered him liable to any loss which might accrue in consequence of such appointment; and it stated that James Priddon died in November 1839, having by his will appointed William Priddon the younger his executor; that in the year 1840 the freehold and leasehold property comprised in the said settlement was purchased by private contract by the defendants, William Medley and Robert Medley, William Wilkinson and Edward Dodson, and that after such contract an objection was taken on behalf of the purchasers to the power of Robert Cooke to sell the same and to give discharges for the purchase-money, upon the ground that his appointment as a trustee was not a proper appointment; that in consequence of such objections being raised an indenture was executed, by which the defendants Robert Cooke and Edward Holmes were appointed trustees by William Priddon the younger, in his capacity of executor to James Priddon, the surviving trustee of those originally appointed. That after the execution of such last-mentioned deed the several purchases were completed, and the purchasedeeds were executed by Robert Cooke and Edward Holmes; and Robert Cooke, Edward Holmes, and William Priddon gave a joint and several receipt for the purchase money. The bill was filed on behalf of the children of Alice Milner, who stated that no part of the 1,000l. provided for them by the settlement had been paid; and it prayed that the copyhold estates which had not yet been disposed of might be sold, and the proceeds applied as far as they would extend in payment of the said sum of 1,000l. and the interest due thereon, and it prayed a declaration that the freehold and copyhold estates which had been vested in the purchasers were still liable to the payment of the said sum of 1,000l. and interest, and that a sufficient portion of them might now be sold, in order to raise such part of the amount as should not be satisfied by the proceeds of the copyhold estate. Mr. Bethell and Mr. Malins, in support of the bill, contended that the appointment of new trustees was defective, inasmuch as it should have been made in the stead and place of James Priddon, the surviving trustee, and of Thomas Storey the deceased trustee, and that two trustees should have been appointed by James Priddon, pursuant to the directions in the settlement, and that the subsequent appointment of two trustees by the executor of James Priddon was also invalid. Mr. Stuart and Mr. Shapter, contrà, contended that the appointment of new trustees was valid, and that the sole trustee, Robert Cooke, having joined with the new trustee, E. Holmes, and with William Priddon, in a joint and several receipt had given a valid discharge to the purchasers for the purchase-money. The following case was cited—Hulme v. Hulme (1). The VICE CHANCELLOR was of opinion that the language of the settlement clearly contemplated the appointment of a sole trustee by the surviving or continuing trustee, and that the appointment of the new trustee by recital in the deed of December 1831 was valid. As to whether the sole trustee having joined with Holmes and Priddon in a joint and several receipt, a valid discharge had been given for the purchase-money, he considered the maxim of the law to be superflua non nocent, and the purchaser having had a discharge from Cooke and Holmes jointly, had received a discharge from Cooke solely. The bill must, therefore, be dismissed as against the purchasers with costs. His Honour further considered that the plaintiffs had no right to require the copyhold estates to be sold, as sufficient had been raised by sale of the freehold and leasehold property to satisfy the charge in their favour. By a marriage settlement, trustees were directed to pay the income of certain trust funds to the husband and wife for their lives, and, after the death of the survivor, to divide such funds between the children and issue of the marriage to be transferred and paid unto sons at twentyone, and to daughters at twenty-one or marriage. There were three children of the marriage. One of them attained twenty-one and died in the lifetime of the tenants for life, leaving children and grandchildren; another attained twenty-one and died in the (1) 2 Myl. & K. 682. lifetime of the tenants for life, without children, and the other attained twenty-one, survived the parents, and had children :— Held, that the trust funds vested in the children of the marriage, as they attained twenty-one, and that the surviving child and the representatives of the deceased children were entitled to them. By a settlement, dated the 23rd of February 1784, and made on the marriage of George Gordon and Ann Fischer, certain funds were assigned to trustees, upon trust, to pay the income to George Gordon for his life, and after his decease, to Ann Fischer for her life. The trusts of the funds after the death of the survivor were then declared as follows:-"to pay, divide and apply the principal to, amongst, and equally between all and every the children and issue of the said George Gordon, to be by him begotten on the body of the said Ann Fischer, if more than one share and share alike, to be transferred and paid unto such of them as shall be a son or sons at his or their respective age or ages of twentyone years, and to such of them as shall be a daughter or daughters at her or their age or ages of twenty-one years or day or days of marriage respectively, which shall first happen after the decease of the survivor of the said George Gordon and Ann Fischer." The settlement contained a proviso as follows:-"that the interest, dividends and produce of the said principal sum or a competent part thereof shall, in the mean time and until the same shall have become due and payable to the children and issue of the said then intended marriage as aforesaid, be applied, paid and disposed of, towards and in their and each of their education and maintenance." There was a declaration "that if there should be no child, or, being such, all of them should happen to die in the lifetime of the said George Gordon and Ann Fischer, or the survivor of them," the trustees should hold the funds upon the trusts therein mentioned. There were three children of the marriage, John, George, and Helena Frances. John attained twenty-one, and died in the lifetime of the tenants for life, leaving children and grandchildren. George attained twenty-one, and died in the lifetime of his parents, without ever having had a child. Helena Frances attained twentyone, survived her parents, and had children. The bill was filed by Helena Frances, for the purpose of ascertaining to whom the trust fund belonged. Mr. Bacon and Mr. J. H. Law, for the plaintiff. Mr. Wigram, Mr. Swift, Mr. Martelli, and Mr. Lloyd, for the other parties. The following cases were cited Wyth v. Blackman, 1 Ves. sen. 196. Whiting v. Force, 2 Beav. 571; s. c. 9 Law J. Rep. (N.s.) Chanc. 345. Practice-Letter Missive, Service of, out of Jurisdiction-33rd Order of May 18452 Will. 4. c. 33. and 4 & 5 Will. 4. c. 82. Quære, whether in a suit not concerning lands, stocks, or shares within the statutes 2 Will. 4. c. 33. and 4 & 5 Will. 4. c. 82, the Court is empowered either by those statutes or the 33rd Order of May 1845, to order service of a letter missive on a defendant out of the jurisdiction. In a suit instituted in respect of alleged breaches of trust of a certain will, one of the defendants was a peer who resided in Ireland, and had no residence in England. The plaintiffs were desirous of serving him with a letter missive, but it was doubtful whether the Court had jurisdiction to order such service. Mr. Southgate, for the motion, said that the case was not within the statutes 2 Will. 4. c. 33. and 4 & 5 Will. 4. c. 82, because the subject-matter of the suit could not be said to relate strictly to lands, tenements, or hereditaments situate in England or Wales, or to any charge, lien, judgment, or incumbrance thereon, or to any money vested in any government or other public stock, or shares in public companies or concerns, or the dividends or produce thereof. It had been held in Whitmore v. Ryan (1), that the 33rd Order of May 1845 (2) gave the Court discretion to permit the service of subpoena on a defendant out of the jurisdiction in any suit whatever; but that Order was entirely silent on the subject of letters missive. In the case of Hunt v. Lever (3), the Court had permitted service of subpoena, by sending it under cover to the person to whom the defendant had directed his letters to be sent. WIGRAM, V.C. said that the motion appeared to him to be a very reasonable one, and that by analogy to the practice of serving subpoenas it ought to be granted. As however the case did not come within the statutes referred to, and letters missive were not expressly mentioned in the General Orders of May 1845, his Honour declined to make the order, but requested that the point might be mentioned to the Lord Chancellor (4). M.R. March 23; ATCHESON v. ATCHESON. Baron and Feme-Will-Joint Bequest -Wife's Equity for a Settlement. A legacy was bequeathed to a husband, his wife, and children. Upon a suit to determine the rights of the parties, it was held that the husband and wife were entitled to one share. Under a similar bequest in the same will the wife claimed to be entitled to a settlement out of the whole share to which the husband and wife were entitled: (1) 4 Hare, 612; s. c. 15 Law J. Rep. (N.s.) Chanc. 232. (2) Ord. Can. 297; 14 Law J. Rep. (N.s.) Chanc. 288. (3) 5 Ves. 147. (4) The necessity of mentioning the point to the Lord Chancellor was obviated by the return of the defendant within the jurisdiction. -Held, that the wife was not entitled to a settlement out of the whole share, as the husband was not entitled to the whole in her right; that their interest was a joint tenancy, modified so as to make their rights contingent; that it was not payable to the husband during the life of his wife, or to the wife during the life of her husband, and that the whole share ought to be carried over to the joint account of the husband and wife, and that the dividends must be paid to the husband during their joint lives, with liberty for all parties interested to apply. Elizabeth Bree, by her will dated the 7th of May 1840, gave, devised, and appointed all her real and personal estate to George Whieldon, R. Gordon, and J. W. Harrison, whom she appointed her executors, their heirs, executors, administrators and assigns, upon trust thereout to pay all and every the legacies, which she might bequeath by any codici or codicils thereto. She afterwards made two codicils to her will, dated respectively the 31st of August 1841, the first of which, among other legacies, contained the following bequests: "To Robert Shank Atcheson, his wife and children, 14,000l. This legacy is in consequence of the unremitting care and attention, with counsel, of the said Robert Shank Atcheson during the trials and troubles of my blessed child after her marriage. To Captain Robert Gordon, his wife and children, 3,000l. To William Saltwell, his wife and children, 3,000l." The testatrix died on the 15th of March 1845, and her will and codicils were subsequently proved by George Whieldon and Robert Gordon alone, J. W. Harrison having died in the lifetime of the testatrix. On the 17th of March 1824, Robert Shank Atcheson intermarried with his wife Catherine, by whom he had three children, who were all living at the death of the testatrix, two had since attained the age of twenty-one years, and the third was still under age. On the 31st of July 1845, Robert Shank Atcheson, in consideration of two sums of money, amounting together to 2,2891., executed an indenture, by which he assigned all share and interest in the said legacy whatsoever, assignable by him, |