beth his wife, and J. Maberly.-The estates vested in the first cousins at the death of the testator, but if they died in the lifetime of the tenant for life there was a substitution in favour of their children. The whole of the property also was converted into personalty-Scott v. Scott (22), Leeming v. Sherratt (23), Barnes v. Allen (24).

Mr. Cooper and Mr. Cooke, for other parties, argued that the gifts were vested in interest at the decease of the testator, and that the children of the first cousins would take by substitution-Salisbury v. Petty (25), Flint v. Warren (26), 2 Jarman on Wills, 75; 2 Sugden on Powers, 172, 173, 6th edit. 396; 4th edit., Leigh and Dalzell on Conversion, 128.

Mr. Greene appeared for the representatives of Mrs. Gape.

Mr. Giffard, for parties claiming under the will of E. Baskerfeild.-There was no conversion; no estate was given to the executors; a power of sale was given to them, but it was only to enable them to pay the legacies, and as they were payable out of the personal estate, there was no necessity to sell the real estate, and consequently no necessity to imply a conversion.

Mr. Teed, Mr. Calvert and Mr. Bayley for other parties.

Heron v. Stokes, 2 Dru. & War. 89.
Malcolm v. Taylor, 2 Russ. & M. 416.
Crooke v. De Vandes, 9 Ves. 197; 11
Ves. 330.

Gittings v. M'Dermott, 2 Myl. & K. 69;

s. c. 2 Law J. Rep. (N.s.) Chanc. 212.

Act, 55 Geo. 3. c. 184, considered estates directed to be sold as converted, and the cases relating to that applied to the present -Fordyce v. Bridges (27), Polley v. Seymour (28), The Attorney General v. Mangles (29), The Attorney General v. Simcox (30). If the estates once vested they could not be divested-Smither v. Willock (31), Harrison v. Foreman (32). Each of the coheirs claims a moiety of one-twelfth of the real estates by descent-Fitch v. Weber (33), Packham v. (33), Packham v. Gregory (34), Brett v. Horton (35).

Mr. Lloyd and Mr. Moultrie appeared for other parties.

Mr. K. S. Parker, in reply.

In

The MASTER OF THE ROLLS.-The points to be considered in this case are divided into two: first, what is the quality of the testator's residuary estate? Is it to be treated altogether as personal estate, or partly as real estate? And secondly, amongst whom the residue, consisting of what it may, ought to be distributed? The residuary clause is that which is to take effect after the death of his wife. general terms he has given to his wife the whole of the property during her life, with a discretionary power of selling, under some changes that may take place during her life, to be exercised, as to the real estate, in concurrence with the other executors, intending her to have the full enjoyment, as he expresses it, during her life; then he adds this clause, " from and immediately after the death of my dear wife, and not before, then I give full power to my executors, their heirs and assigns, to collect all my property together." His

property consisted partly of real estate and partly of personal estate; and the personal estate consisted partly of money in

(27) 10 Beav. 90; s. c. 2 Phill. 497; 17 Law J. Rep. (N.s.) Chanc, 185.

(28) 2 You. & C. Ex. 708; s. c. 7 Law J. Rep. (N.s.) Ex. Eq. 12.

(29) 5 Mee. & W. 120.

(30) 1 Ex. Rep. 749. (31) 9 Ves. 233.

(32) 5 Ibid. 207.

(33) 6 Hare, 145; s. c. 17 Law J. Rep. (N.S.)

Chanc. 361.

(34) 4 Hare, 396; s. c. 14 Law J. Rep. (N.S.) Chanc. 191.

(35) 4 Beav. 239; s. c. 10 Law J. Rep. (N.s.) Chanc. 371.

the funds and partly of other things, but his executors were to have full power to collect all his property together, "and sell the houses and other estates, and to convert into money all my funded property, and then to pay first the following legacies" to his godchildren, &c., first those legacies. And then he says, "I give 50l. to each of my late cousin Nehemiah Brandreth's children;" and having given those sums of money, he says, "then the whole of the remainder of my property is to be divided share and share alike to my aforesaid twelve first cousins and their children." By "property" he certainly means all that he has they are "to collect all my property together;" and one of the means of collecting pointed out is to sell the houses and other real estates. Having directed them to collect all his property, he specially goes on, "to convert into money all my funded property," separating that from the rest; but it seems to be perfectly clear that he meant to constitute one common fund, out of which they were first to pay the legacies, and then the whole of the remainder was to be divided. He had a general fund in view, as we find from a former part of his will, in which having given to his wife 2,000l., which she might appoint in a manner most agreeable to her, he says, if she does not dispose of it, it is to be added to the general fund, and as the residue" after my dear wife's decease to go share and share alike between all my first cousins." And in the codicil which has been so often referred to, he again refers to the "final division of my property after the decease of my said dear wife." I collect from the purview of this will, that the testator did intend a trust, as well as a power to have all his property converted into money, and that money it was which was to be divided among the persons who were entitled to take.

A strong part of the argument for a contrary construction is, that he directs " the whole of the remainder of my property;" and, no doubt, the word "property" will comprise real as well as personal estate. It will comprise all the testator had in any form. It is then the remainder of his property is to be divided-" then." When? When they have collected, according to their power, all his property together;

that is to be done by sale of his real estate. It appears, therefore, most reasonable to hold this to be a power to sell the real estate, and to construe this to be a conversion. It

The next question is the division. is "to be divided share and share alike to my aforesaid twelve first cousins." It is said this constituted a class, but is it an indefinite class; such a class that nobody in it can take till they are to be determined by some future event? They are not a class of that nature which this Court is in the habit of contemplating when it speaks of vesting after the death of a testator, and before the time of a division; and according to the rule, that where the gift consists in the direction to divide, and the class is indefinite, then you give it to those persons who are living to answer that description at the time the division takes place. We are not speaking of what may be a classification of things under other circumstances, but we must take "class" as it is meant on occasions of this kind, with reference to the question of the vesting of the estates of testators. I apprehend you will find that "class" is a general term applicable to several persons comprised under a general name or a general description, but indefinite in number, and individually not distinguished by name or particular designation. I think you will find the cases are of that nature; if you have persons named they do not, in that sense, constitute a class, and yet in common parlance they may very well be a class; and I think we shall find that the word "class" would not improperly apply in the view which I am disposed to take of this case. But it is not a class such as the Court is in the habit of considering a class, with reference to the question of vesting. gift is "share and share alike to my aforesaid twelve first cousins." Upon referring back, you find the testator has mentioned them beforehand, who they are, or at least what he meant. The first time that they are mentioned in the will is in the clause about the 2,000l. which the wife had power to dispose of, and then, if not disposed of, it is to be added to the general fund, and, as the residue after my dear wife's decease, to go share and share alike between all my first cousins." That would

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not help the construction much on this occasion, because he says "all my first cousins," and not "my aforesaid twelve first cousins." But they are mentioned again, in the case of a particular legacy given to each of them. We must endeavour to find from the expressions which the testator has used, and the circumstances then existing, so far as they are applicable, who he meant when he talked of his twelve first cousins, or his first cousins; one of the twelve first cousins was dead; he states that, and he makes provision for that particular state of circumstances. It can hardly be doubted, from the general construction of the will, that "all my first cousins" means his "twelve first cousins," although he has not said it, and therefore I do not rely on it as helping me in this. But in this clause of the legacies, it is clear he meant the twelve first cousins, not that he has made the gift to the twelve first cousins, because the gift is in these words, "to each of my twelve first cousins;" that leaves it still somewhat indefinite. But after giving a legacy of 1007. each to the twelve first cousins, it immediately appears afterwards, from his enumeration, that there are but eleven of them living, and although he gives it to twelve first cousins, yet he there means and expresses a substitution of the children for that deceased first cousin, as he proceeds to state, "as it has pleased God to remove one," he gives the same legacy, that is, a like sum of 100l., to the children of that one; yet, because I have only eleven cousins, but there being children of one, he says, "hence, I have allotted 1,2001. stock from my 57. per cents. to be paid to my twelve first cousins." He has not called them twelve first cousins in the early part of his will, but here, in speaking of them, he calls them the twelve first cousins, and at the end, as well as the beginning, he speaks of this legacy as if he had given a legacy to the twelfth cousin, who was dead, directing a substitution in favour of the children of that one.

A little further indication of his intention is to be found in the codicil referred to. There had been something to occasion a dissatisfaction with Mrs. Burrell, the mother of the plaintiff: he desires her to do something, and says, I direct that if

case.

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she does not consent, that the legacy given to her shall be withdrawn-revoked, I think, is the expression, which he properly uses, I hereby revoke the bequest in that Then it goes on thus, with reference distinctly to the residue, "But I do not mean to exclude her children from the benefit she might hereafter possess in the final division of my property, after the decease of my dear wife.' So that the children might take something then. My opinion is upon the construction of this, that he meant the first cousins to take vested interests immediately; that he had postponed the division till the death of his wife, but he had expressed a clear intention for the benefit of those cousins, just as if he had named them. I agree with the argument, that it is just the same when he said "the aforesaid twelve," as if he enumerated all the eleven, and, perhaps, as if he had enumerated the children of the twelfth: but still I am apprehensive that it may not be right, for it would be a substitution in that particular case; and the expression, "and their children," does not seem to me to admit, accurately at least, of the confinement of the meaning to the children of the one who was dead before: I, therefore, think, having regard to the first and the last part of the will, and looking at it all in the midst of a great deal of uncertainty, that the proper construction is, that each first cousin took a vested interest on the death of the testator, and that if any first cousin died, leaving children, in the lifetime of the tenant for life, the vested interest was divested, and the children of such deceased first cousin became entitled by way of substitution, and that the children of the first cousin who died in the life of the testator became entitled to his share.

account and distribution of his testator's estate, and prayed for a receiver; upon the answer coming in the plaintiff found that there was no outstanding estate, and that the debt of 300l. due from him alone remained unapplied. The plaintiff allowed matters to rest as they were, but the defendant gave a notice of motion, asking for the appointment of a receiver as prayed by the bill; but the application was refused without costs.

This was an application by John Hadley, a defendant, for the appointment of a receiver.

Thomas Paterson being seised of some real estate, and possessed of considerable personal estate, made his will, dated the 2nd of July 1848; he gave several legacies and directed the rest of his property to be converted into money and divided equally among all the legatees named in his will, and he appointed the plaintiff John Robinson and the defendant John Hadley his executors; and by a codicil to his will, dated the 26th of July 1848, he declared that, notwithstanding the appointment of J. Robinson and J. Hadley as executors, they should respectively account to his estate for the sums due to him from them on their respective bonds. The principal sum due on J. Robinson's bond was 300l., and the principal sum on J. Hadley's bond was 100l. together with such interest as at the time of his death might be due from them. The testator died on the 28th of July 1848, and the will was proved by both the executors. Disputes afterwards arose between the executors, and J. Robinson filed this bill, alleging that J. Hadley had alone acted in the execution of the testator's will, save so far as the plaintiff had acted by concurring in the conversion of parts of the testator's estate.

It also alleged that J. Hadley had received large sums of money belonging to the testator's estate, and that he had applied the same to his own use, or had the same in his hands, and intended to receive and invest other parts of the said testator's estate, and apply the same to his use. The bill then charged that J. Hadley ought to account, and that a receiver ought to be appointed to get in the outstanding estate.

The bill prayed that the usual accounts might be taken, and that the defendant

might be restrained by injunction from collecting or getting in any further part of the personal estate and effects of the testator, or the rents, profits or produce of his real estate, and that some proper person might be appointed to collect and get in the outstanding personal estate, and to be the receiver of the rents and profits of the real estate, and that the estate of the testator not specifically bequeathed might be realized and distributed under the direction of the Court.

The defendant put in his answer to the bill, and stated that the plaintiff J. Robinson, by a bond, dated the 15th of February 1839, was indebted to the testator in the sum of 300l. with interest.

The defendant then stated, that by a deed, dated the 15th of July 1848, he had granted to the testator during his life an annuity of 601. a-year, payable monthly by instalments of 5l., in consideration of which the testator for himself, his heirs, executors, administrators and assigns, covenanted with J. Hadley that his executors or administrators should, within one month after the decease of him, the said testator, pay unto J. Hadley the sum of 300l., with interest after the rate of 31. per cent. per annum, from the date of the indenture. The defendant then admitted the receipt of various sums of money, part of the testator's estate, and stated that he intended to receive and convert the 300l. and interest secured by the bond of the plaintiff, and also the other outstanding estate of the testator, and apply the same in payment of the debts and legacies of the said testator, and also what was due to J. Hadley in respect of the 300l. The defendant then denied that he had any unapplied estate of the testator, and submitted that the plaintiff ought to be compelled to pay the 300%. due from him. The plaintiff, upon the answer coming in, did not think proper to apply for the appointment of a receiver, upon which the defendant gave the present notice of motion.

Mr. Glasse, in support of the motion.The plaintiff, by his bill, prayed for a receiver, but he has not made any application to the Court; the only outstanding estate of the testator is in the hands of the plaintiff himself. If the application is not granted the defendant must file a cross bill;

had he waited until the hearing a receiver would have been appointed, but as this was a reasonable application, it ought to be granted-Anonymous (1).

Mr. S. James. - Before the Court can be induced to act, it is necessary to shew that some damage would be sustained; but no such case has been made by the defendant. The plaintiff had not moved for a receiver, because the whole of the testator's estate has been got in, except the 300l. due from the plaintiff himself; the testator's estate therefore could not have received any benefit from the appointment of a receiver. The present application by a defendant, before any decree has been made, is a novelty in practice; it is an attempt to controul the plaintiff in the conduct of the cause. This alone is irregular, and the motion ought to be refused with costs.

The MASTER OF THE ROLLS.-This is a singular application. J. Robinson is the plaintiff, and he and John Hadley, one of the defendants, are co-executors; and this defendant moves for a receiver. The other defendants do not join, and they take no part in the discussion. The plaintiff by his bill complains of the conduct of the defendant, and prays for a receiver, and the defendant desires that one should be appointed, but upon the answer coming in the plaintiff considered that there was no ground for the application, and he refused to apply; upon which the defendant moved, and states reasons why the application should be granted. The plaintiff said there was no authority for the course adopted by the defendant, and insisted that the Court had no jurisdiction to make the appointment at the instance of the defendant, though he had prayed for it by his bill.

I shall refuse the motion, and make no order as to costs.

vested 2,600l. on the security of four houses and three acres of building ground near Birmingham, which had been valued at 3,500l. and estimated to produce 175l. a year. The actual rent, however, produced at the time the mortgage was made was only 1051. The property was afterwards sold by the trustees, and a loss incurred of 350l. The conduct of the trustees was honest and fair and not tainted by any fraud or improper motive :Held, that the trustees were not liable to make good the loss.

Richard Jones, by his will, dated in March 1820, gave all the residue of his estate to Lewis, Neville, and Jones, as trustees, upon the usual trusts for conversion, and directed them to place out the monies arising therefrom in the funds, or at interest on some good and approved freehold or leasehold securities.

By the decree made in 1841, a reference was made to the Master in this suit, which was instituted against the trustees for the administration of the testator's estate, to inquire how and in what manner the testator's estate had been from time to time invested, and, under what circumstances any loss was sustained on the money which had been advanced by way of mortgage to William Hickin.

The Master, by his report, dated in 1849, found the following circumstances:

Mr. Lewis, on the 11th of July 1828, advanced 2,600l. to W. Hickin, by way of mortgage, on the security of certain freehold messuages, buildings and lands, situate at the Lozells, in the parish of Aston, near Birmingham. Previously to such investment, the estate was surveyed and valued by a surveyor of the name of Ebenezer Robins, who valued the same at the sum of 3,500%., and the income of it at 1757, per annum, and stated that the alterations that were going on in the neighbourhood to improve it would induce him to value it (if his own property) at 4,000l. W. Hickin in 1831, took the benefit of the Insolvent Debtors Act. Mr. Lewis and Neville were afterwards obliged, in the performance of the trusts of the testator's will, to sell the mortgaged premises. They were accordingly sold by public auction, and the purchase-money, after payment of expenses, was applied in discharge of the interest and