charged with the payment of my just debts, funeral expenses, and the legacies hereinbefore bequeathed, to the use of my son Joseph Kirkman, Thomas Owen, William Ashlin, and John Robins, their heirs, executors, administrators, and assigns, respectively, for all such estate, term and interest as I shall have therein respectively at my decease, upon the trusts hereinafter mentioned concerning the same; and I give and bequeath all shares and promissory notes in and from the Grand Junction Canal Navigation, of which I shall be possessed at my death, and all the share or shares, estate and interests which I have of and in the trade or business of a brewer, which I now carry on in partnership with John Bittleston and James Williamson, and my books, pictures, plate, linen, china, household goods and household furniture of every kind which shall be in or about both my dwelling-houses, the usual place of my residence in town and country at the time of my decease, and also all my stocks, monies, securities for money, and all other my personal estate not herein before disposed of, subject to and charged with the payment of my debts, funeral expenses, and the legacies herein before by me given, unto and to the use of my son Joseph Kirkman, and the said Thomas Owen, William Ashlin, and John Robins, their heirs, executors, administrators, and assigns respectively, for all such estates, term, and interest as I shall have therein respectively at my decease, and according to the several tenures and qualities of such estates and property respectively, upon the trusts hereinafter mentioned, viz., the books, pictures, plate, linen, china, household. goods, and household furniture of every kind, which shall be in both my said dwelling-houses at the time of my decease, upon trust from and after my decease to allow my said wife to have and enjoy the use thereof during her life, for her own absolute benefit, without any controul whatsoever; and my will is, that so soon as conveniently may be after my decease, my said trustees do cause a true and exact inventory to be made and taken of all the said books, pictures, plate, linen, china, household goods, and household furniture, and two copies to be made of such inventory; one to be delivered to my said wife, and the other to be kept by my trustees, which last copy

shall be signed by my said wife at the foot of a receipt thereunder written, for the articles therein specified, at and before the time of her taking possession thereof; and I declare that my son Joseph Kirkman, and the said Thomas Owen, William Ashlin, and John Robins, their heirs, executors, administrators and assigns, shall stand seised and be possessed of and interested in my said estate at Berkhampstead, and the said books, pictures, plate, linen, china, household goods and household furniture, (subject to the life estate and interest of my said wife therein,) and all other my said freehold, copyhold, and leasehold estates, shares and notes in the Grand Junction Canal Navigation, and personal estate whatsoever herein before devised and bequeathed to them, upon trust, by and out of the rents and annual income of my said freehold, copyhold and leasehold estates, or by mortgage and sale thereof, or of any part thereof, or by all or any of the said means, or by and out of the annual produce of my said personal estate, or by sale or other disposition thereof, or of any part thereof, or by such other ways and means as they shall think fit and more advisable, to raise and levy the sum of 8,000l. for the benefit and portions of all and every my child and children, living at my deceaes, or born afterwards, (other than and except my eldest son, the said Joseph Kirkman the younger,) equally to be divided between or amongst them, for the benefit of them; if more than one, share and share alike; and if there shall be but one such child, then for the benefit of such only child." The will then proceeded as follows:-" and subject to the several trusts herein before declared, I direct that my said son Joseph Kirkman, and the said Thomas Owen, William Ashlin, and John Robins, their executors, administrators, and assigns, shall stand and be possessed of and interested in my said real and my said residuary personal estate, upon trust, by and out of the rents, issues, and annual produce thereof, or by mortgage, sale, or other disposition thereof, or of any part thereof, or by all or any of the same means, or by such other ways and means as they shall think fit and more advisable, to raise and levy yearly one annuity of 3651. free from taxes and clear of all other deductions whatsoever, and pay the same into the proper hands of my said dear wife; and subject to the trusts here

inbefore declared for my said wife's benefit during her life, and subject to the payment of the said sum of 8,000l., and to every estate, trust, and interest herein before mentioned, and all powers, provisoes and directions in this my will contained respecting my said real estate and my said residuary personal estate, I declare and direct that my said son Joseph Kirkman, and Thomas Owen, William Ashlin, and John Robins, their heirs, executors, administrators and assigns respectively, shall stand seised and be possessed of and interested in all my said real and all my residuary personal estate whatsoever, in trust, to pay to or permit and suffer my said son Joseph Kirkman and his assigns to receive and take the interest, dividends and annual produce, and the rents, issues and profits of the same real and personal estate, for and during the term of his natural life; and from and after his decease, subject to and charged and chargeable with all dower, right, title, and claim of dower and thirds, of freebench, and customary or widow's share, and thirds or moiety at the common law or by virtue of the Statute of Distribution, which any widow of my said son Joseph Kirkman may have, or claim out of and from or upon all or any of the said real and personal estates, in case my said son Joseph Kirkman during his life and at his death had been absolutely seised and possessed thereof in his own right, for any estate of inheritance or otherwise, and had died intestate and not indebted, in trust for all and every or such one or more of the children of my said son Joseph Kirkman, lawfully to be begotten, whether born in his lifetime or after his decease, at such time or times and in such parts, shares and proportions, and subject to such conditions, restrictions and limitations over, to or for the benefit of all or any of such children as he, my said son Joseph Kirkman, from time to time by any deed or deeds, writing or writings, to be by him sealed and delivered in the presence of and to be attested by two or more credible witnesses, or by his last will and testament in writing, or any codici or codicils thereto, or any writing purporting to be his last will and testament or codicil, to be signed and published by him, in the presence of and to be attested by three credible witnesses, shall direct or appoint;

and in default of, and in the mean time, and until such direction or appointment shall be made, in trust for all and every the child and children of my said son Joseph Kirkman, lawfully to be begotten, in equal shares, if more than one as tenants in common, and not as joint tenants, and for their respective heirs, executors, administrators and assigns for ever; and I do hereby direct, that in case my said son Joseph Kirkman, or his assigns, shall punctually pay the said sum of 8,000l. as portions for my younger children, when and as the same portions shall respectively become payable under the directions of this my will, and every part thereof, and the interest monies hereinafter directed to be paid in respect thereof, and also the said annuity of 365l. to my said dear wife for her life, and every part thereof, at the times and in manner hereinbefore mentioned, and until default shall be made in some of the said payments, the trustees for the time being of this my said will shall from time to time and at all times permit and suffer or allow my said son Joseph Kirkman and his assigns, during his life, to receive and take the rents, issues, and annual produce and income of my said real and personal estate, and of every part thereof, (subject as herein before mentioned,) to and for his and their own absolute use and benefit, without any hindrance, interruption or disturbance whatsoever; and in case my said son Joseph Kirkman shall with his own monies pay or advance the whole or any part of the principal of the said sum of 8,000l., then and in such case and to that extent he shall be and remain a creditor upon the real and personal estate herein before made liable to the raising and payment thereof, and he or his executors, administrators or assigns shall and may have the amount of the principal so to be advanced by him raised and levied by the ways and means aforesaid, by and out of the said real and personal fund to and for his own use and benefit, together with the interest thereof." The testator then directed interest after his decease at the rate of 31. per cent. per annum to be paid by his son Joseph Kirkman, on such of the portions of his daughters and younger sons of and in the sum of 8,000. as should not be payable at the testator's decease, or until the death of his wife, whichever event should first

happen, and after his wife's decease the testator directed 5l. per cent. to be paid on the portions so long as the same should not be payable; and he appointed his son Joseph Kirkman, and the said Thomas Owen, William Ashlin, and John Robins, and his wife, executors and executrix of his will, and gave to each of them the sum of 100l. on condition of their respectively acting in the trusts and execution thereof, but not otherwise.

The testator died on the 14th of September 1803. All the executors joined in proving the will, and received the legacies given them thereby. Thomas Owen died in the year 1816, and his executors (the defendants Richard Booth and Richard Owen,) proved his will. On the 5th of November 1816, a commission of bankrupt was issued against Joseph Kirkman the son, and the defendants George Thackrell and Benjamin Tomkins were chosen the assignees of his estate and effects. The testator's widow died in 1824; William Ashlin died in the year 1826 intestate; and the defendants Ann Ashlin and Maria Fielder became his legal personal representatives. John Robins died in May 1831; and the defendants James Reid and Thomas Bramall proved his will shortly afterwards. Joseph Kirkman the son died in June 1831 intestate, having as a trustee received no part of the testator's estate subsequently to his bankruptcy, and never having executed the power of appointment given him by the testator's will. Soon after Joseph Kirkman's death, his son (the plaintiff) William Kirkman attained twenty-one, and the bill was filed in July 1845, by William Kirkman and two of his sisters, who had subsequently attained their majority, against the legal personal representatives of the testator's executors, with the exception of the testator's widow; the other children of Joseph Kirkman the son, and his assignees, seeking the execution of the trusts of the testator's will, and praying that accounts might be taken of the personal estate of the testator possessed by the executors, or which but for their wilful neglect or default might have been received by them, and that an account might be taken of the profits realized by the executors by the carrying on of the brewery business with the assets of the testator

after his death, and that it might be declared that the testator's estate was entitled to the benefit of such profits. A like account was also prayed of the testator's freehold, copyhold, and leasehold estates, and the disposition thereof; and it was asked that the defendants might be charged with all losses resulting generally to the testator's real and personal estate from their wilful neglect or default; and that the amount of the testator's residuary real and personal estate which might have been realized by a sufficient investment thereof, according to the directions and trusts of the testator's will, and the amount to which the plaintiffs were entitled in respect thereof might be ascertained.

The testator, at the date of his will, carried on the brewery business in copartnership with two other persons, but between that time and his decease he purchased the interest of his co-partners in the business for a sum of 26,000l., payable in annual sums of 3,000l., and thereby he became sole owner of the business, and at the time of his death the brewery business was carried on by the testator and Joseph Kirkman the son, who continued to carry on the same from the decease of the testator until the year 1816. Joseph Kirkman the son occasionally consulted his co-executors touching the same; they, however, took no precaution to preserve the property in the brewery for the benefit of the children of Joseph Kirkman the son; neither did they take any steps to realize the brewery property. From the year 1803 till the year 1816, the brewery property was left under the sole controul of Joseph Kirkman the son, who made considerable profits therefrom, but no investments were ever made of such profits or of any part thereof. At the time of the bankruptcy of Joseph Kirkman the son, the value of the brewery property was 10,000l. In the year 1807 it was mortgaged for a sum of 7,500l., consisting of a sum of 4,500l. remaining due on a former mortgage originally made for 14,000l., and a further sum of 3,000l. advanced by a person named Clarke. The brewery continued in the possession of the assignees from the date of the bankruptcy until the year 1824, and there was no attempt made during that period either to sell or mortgage the same. In the year 1824 the brewery premises having become dilapidated, the

equity of redemption therein was released to the mortgagee. In the year 1815, W. Ashlin, one of the trustees, had become a creditor of Joseph Kirkman the son, and in July of that year an assignment was executed by Joseph Kirkman the son alone to Ashlin, of certain houses the property of the testator, situate near the brewery, for the residue of the unexpired term of years therein, in consideration of the sum of 450l., consisting of 300l. the amount of a debt then due to Ashlin by Joseph Kirkman, and of 150l. cash paid to Joseph Kirkman by Ashlin, and the rent of those houses for the term of ten years then next ensuing was 75l. a-year. The testator was, at his death, possessed of furniture, plate, linen, fixtures, &c. which he specifically bequeathed to his wife for life, and on her death the same legacies to form part of his residuary estate. The testator directed an inventory to be taken of the furniture, &c. by the trustees, and signed by his wife; but that direction was not complied with, and no part of the furniture, &c. or of its proceeds was forthcoming. The executors also converted a sum of 2,990l. 8s. 10d., being the balance of a debt due from the testator's estate to one of his partners, into a debt of 5,000l., 31. per cent consolidated bank annuities. The testator, at his death, was also possessed of certain canal shares, some of which the executors did not realize until the year 1810, having previously paid out of the testator's estate the calls made from time to time in respect thereof, and by reason of the non-payment of the 8,000l. legacy given to the testator's younger children, no less than three suits in equity were instituted at different times against the trustees relative thereto, in none of which the trustees admitted assets, and which were eventually compromised by payment to the respective legatees of less sums than the full amount due in respect of their claims. The executor Robins had received a large sum of money in respect of commission charged by him for business done for the testator's estate as an auctioneer and estate agent.

Mr. Turner and Mr. J. Baily, for the plaintiffs, contended that the executors, having accepted the legacies given them by the will, as the condition of their administering the testator's estate, and being clothed

with the execution of the trusts of the will, were not justified in leaving the testator's property in the possession of one only of their body, but on the contrary were all bound to take care of it for the cestuis que trust; that the plant, stock, and gear of the brewery were a wearing-out interest, producing a much larger income than could arise from permanent securities, and therefore ought to have been sold by them within a reasonable time after the testator's death; that if the testator had intended that the brewery business should be carried on by the trustees, he would also have intended that they should be indemnified in doing so, but inasmuch as at the date of his will he was in partnership with two other persons in that business, he could not at that time have intended that the trustees should carry on the business; that the enumeration in the will of the testator's property was simply for the purpose of vesting it in the trustees; that when the testator meant anything to be enjoyed in specie he had clearly expressed himself to that effect, as in the instance of the gift of the furniture, &c. to his wife; that the testator never could have intended that the 8,000l. given to his younger children should be merely a charge on the annual income of his estate, for until sale the testator directs the rents to go in aid of the sums directed to be raised out of his estates, and in a subsequent part of his will he speaks of the residue of his personal estate; that part of the testator's estate might have consisted of promissory notes; and if so, he could not have intended that any part of his estate should remain outstanding on such security, and that his son Joseph should receive the interest of 51. per cent. arising from such security, instead of the interest to arise from the proper investment of the monies to be received by the trustees on such notes becoming due and payable; that the conversion of the leasehold premises ought to have taken place at the end of one year after the testator's death; that the fact of the youngest of the plaintiffs having attained the age of twenty-one years in 1841, was a complete answer to any observations that might be made relative to the lapse of time since the deaths of the respective executors and trustees; that in cases where the property bequeathed is of small value, executors

abstaining from filing a bill ought to receive the protection of the Court in every possible manner in which it could be afforded them, but the case was otherwise where the property bequeathed was considerable; that the plaintiffs were entitled to the inquiries sought against Robins's estate, notwithstanding his assets had been paid away or distributed, as his executors still continued to represent his estate, and must be parties to any suit instituted against the legatees of Robins.

Mr. Walpole and Mr. Micklethwait appeared for some of the defendants having the same interest as the plaintiffs.

Mr. Stinton appeared for the widow of Joseph Kirkman the son.

Mr. Roupell and Mr. Francis Bayley, for the defendants, the personal representatives of William Ashlin, Thomas Owen, and John Robins, contended that a sale was only an alternative proceeding; that the testator's intention must be collected from the state of his affairs at the date of his will, although the state of things at his death must govern the construction of his will; that the gift of the brewery was of the brewery as it stood at the time of his death, and was a specific gift which the son Joseph was to take the produce of without interruption, subject, however, to the charges created by the will; and the duties of the trustees were only to take effect on the failure of the son Joseph to comply with the directions contained in the will; that the words used by the testator in the present case were stronger than those found in Pickering v. Pickering (1) and Collins v. Collins (2); that the fact of the brewery business being carried on at the testator's death in the name of the testator and his son Joseph, manifested an intention that the latter should carry it on after the testator's death; and he was put into possession of the business as the specific legatee of it, and if so, all question as to wilful default was at an end; that the transaction as regarded the lease of the houses to William Ashlin was between Joseph Kirkman the son and William Ashlin only, and the executor Thomas Owen had no knowledge thereof, neither was he privy to the conversion of the debt

(1) 2 Beav. 31; s. c. 8 Law J. Rep. (N.S.) Chanc. 336. (2) 2 Myl. & K. 703.

of 2,9901. 8s. 10d. into a debt of 5,000l. consolidated bank annuities; and, therefore, as regarded Thomas Owen's estate, at least, there could be only a decree against his executors for a general account; that the executor J. Robins having died in the year 1831, and his estate having been afterwards administered in this court, it ought to be held discharged from the plaintiffs' demands; that the present claim against the estate of the executor William Ashlin, who died in the year 1826, was one of extraordinary hardship, and ought not to be countenanced by the Court; that as between Joseph Kirkman the son and William Ashlin, the transaction as to the leasehold houses, the term in which expired during Joseph Kirkman's lifetime, was a fair one if Joseph Kirkman the son and tenant for life had the right of enjoyment of them, there being no trust in the will for conversion; that as regarded the conversion of the balance of 2,9901. 8s. 10d. into a stock debt of 5,000l. 31. per cent. consolidated bank annuities, Joseph Kirkman the son received the whole of the testator's personal estate, and the rents and profits of his real estates, and W. Ashlin advanced to Joseph Kirkman the son, 450l. out of his own monies on a particular transaction, and so far the stock was W. Ashlin's; but there was some mystery connected with that transaction which could not at the present distant date be explained; and as regarded the amount of commission paid to the executor J. Robins as an auctioneer and estate agent, the same must have been paid to some other auctioneer if he had not been employed.

Mr. Turner, in reply.

The case of Knatchbull v. Fearnhead (3) was also cited in the course of the argument.

The MASTER OF THE ROLLS.-There is great difficulty as well as hardship in this case on both sides. The bill seeks an account of the estate of a testator, a large part of whose property consisted of stock in trade, who died forty-two years before the filing of the bill. Having appointed executors and trustees, one of them survived the testator thirteen years, the widow twenty-two years, Ashlin twenty-four years, Robins twentyeight years, and the son who was also an

(3) 3 Myl. & Cr. 122.