This was a creditors' suit, in which part of the estates of the testator in the cause had been sold, and the money ordered to be paid into court. A motion had been made by the plaintiff before the Vice Chancellor, and a petition had also been presented by him at the Rolls, to have that order varied; and the motion had been refused, and the petition dismissed, with costs. The executors had defended separately, and the Master had allowed them two sets of costs, incurred upon the motion and petition. The plaintiff now presented a petition, that it might be declared that the Master ought not to have allowed two sets of costs, and that it might be referred back to him to review his report. The usual decree had been made in June 1831, by which further directions and costs were reserved.

Mr. Knight Bruce, in support of the petition, insisted, that the question of the costs ought not to be decided till the cause came on for further directions, when the Court would be able to decide whether there was any good reason for the executors defending separately; that there appeared to be no special circumstances in this case which could render such a proceeding proper on the part of the executors, and that, in the absence of any particular reason for so doing, one set of costs only ought to be

allowed; that the Master had not intended to express any opinion that two sets of costs were proper in this case, but had considered that question as determined by the order pronounced by the Court.

The VICE CHANCELLOR.-The motion was refused with costs; therefore the question of costs on this point is not reserved, and, consequently, these costs will not come into the question of general costs. It seems to me, that you are to make out that the parties ought not to have their costs separated. You obtain an order for the payment of the purchase-money; you then seek to vary that order in a manner which the Court does not choose to grant; you then virtually, though not in form, endeavour to get that which was done here reversed by the Master of the Rolls, who dismissed the petition with costs. Your case is not primá facie such a one as is entitled to the favour of the Court.

The circumstance of a tenant in common being a person of weak intellects, will not prevent the Court from making a decree for a partition as against such party.

This was a bill for a partition. A testator had devised his real estates to his three daughters, as tenants in common; and this bill was filed by two of them against the third. The defendant, who had attained her majority, was a person of weak intellects, but had not been found so by inquisition, and had put in an answer by a guardian. The question was, whether the Court would make a decree for a partition as against her.

Mr. Mylne, for the plaintiffs, submitted, that although no order could be made for a conveyance from the defendant, still the

Court could make the usual order for a commission to make partition, and that the lands should be held in severalty.

Mr. Duckworth appeared for the defendant.

The VICE CHANCELLOR said, there was no objection to make such a decree as was proposed, reserving further directions.

L.C.

Jan. 16; Nov. 15.

}

SKEELES V. SHEARLY.

the defendants had notice of her judgment before it was registered, and before the mortgage to Shearly; and also alleging, that it had been agreed between Shearly and Cook, that 1,000l., part of the 4,500l., was to be applied in satisfaction of the plaintiff's claim. One of the persons who were present at the payment of the mortgage money deposed, that the 1,000l. was retained by one of the defendants, to meet the plaintiff's claim, if the estate should prove to be liable to pay it.

The bill prayed, that it might be declared that the plaintiff, by virtue of her

ment.

The lien of a judgment creditor on the real estate of his debtor, where execution has not been taken out, is defeated by the exercise of a general power of appointment given to the debtor in the conveyance of the estate, by which the estate was limited in default of appointment, to the usual uses to bar dower; and that, notwithstanding the appointee had notice of the judgment.

This case will be found reported in 6 Law J. Rep. (N.s.) Chanc. p. 21.

The facts of it were simply these:-An estate was limited to such uses as William Cook should appoint, and, in default of appointment, the fee was limited to Cook in such manner as to bar dower. In 1828, the plaintiff, Mrs. Skeeles, obtained a judgment for 1,000l. against Cook, which was duly entered, docketed, and registered in the office for registration for the county of Middlesex; and in November 1830, the plaintiff issued out a writ of elegit on her judgment. In July 1830, Cook had appointed the property to the defendant Shearly, by way of mortgage, for securing 4,500l.; and the mortgage was not to be redeemed before 1838.

On the 22nd of November 1830, the sheriff of Middlesex extended a moiety of the estate for the benefit of the plaintiff, but did not give her actual possession o it. She, therefore, brought an action of ejectment against the tenant in possession; but being nonsuited by means of the legal estate vested in Shearly, under the appointment contained in the mortgage deed, she thereupon filed this bill, alleging that

to any incumbrance of the defendants; and that they might deliver up possession to the plaintiff, and might be restrained from setting up any legal estate to defeat an action of ejectment; or if the Court should determine that the defendants had a charge prior to her own, then that she might be at liberty to redeem such prior charge.

The argument proceeded on the assumption, that the defendants had notice of the judgment.

The Vice Chancellor dismissed the bill with costs; and the plaintiff had appealed from his Honour's decree.

Mr. Wigram and Mr. Stuart appeared for the plaintiff, and contended, first, that as Cook in effect was the unrestricted owner of the property, he could not in equity defeat the plaintiff's judgment by an execution of his power of appointment; -secondly, that the defendant having notice of the judgment, took the estate subject to the plaintiff's rights; and, thirdly, that the plaintiff was at all events entitled to redeem the mortgage.

Mr. Knight, Mr. Jacob, Mr. Bazalgette, Mr. Wakefield, and Mr. Roupell, appeared for the defendants; but

The LORD CHANCELLOR did not think it necessary to hear them, and said, he would look into the authorities before he gave his judgment; and on the 15th of November 1837, his Lordship stated, that in this case he concurred in opinion with the Vice Chancellor; that at law estates limited in default of appointment, ceased, and were defeated on the execution of the power of appointment, and that the estates appointed under the power took effect in

the same way as if they had been contained in the deed which created the power; and that, therefore, the estate of Cook which the plaintiff sought to recover in this suit, had not any longer existed after the execution of the power: that this was decided in Doe dem. Wigan v. Jones (1), and there was no authority for saying, that the same rule did not prevail in equity: that although the power under which the defendant claimed was a general power, and the property which was subject to it was subject to be applied for the benefit of creditors, yet that creditors had not so good an equity as a purchaser for valuable consideration George v. Milbanke (2). That the principle on which a recovery was held to give effect to prior charges created by the tenant in tail, did not apply here; because the estate which was sought to be affected by these charges did not exist when they were created, and the estate of the defendant never was the property of William Cook. That with respect to the second point, he considered the alleged notice of the judgment quite immaterial; that the bill supposed a species of trust was created as to the 1,000l.; but the plaintiff was no party to that transaction; and, therefore, whether the whole purchase-money was paid to Cook, or whether 1,000l. was retained to be paid to some other party, the plaintiff would obtain no lien. That with respect to the last point-namely, that the plaintiff was entitled to redeem the mortgage, it appeared by the mortgage deed that it was stipulated that the mortgage should not be redeemable till 1838. That the plaintiff's case had failed in every point; and he must, therefore, dismiss the appeal, with costs.

heir-at-law of the mortgagor :-Held, that a day was not to be reserved for the defendant to shew cause against the decree, on his attaining his majority.

This suit was instituted for the purpose of obtaining the sale of some real estate, of which an equitable mortgage had been made to the plaintiff. The mortgagor had since died, and his heir-at-law, on whom the property had devolved, was an infant. The question was, whether a day should be reserved in the decree for the infant to shew cause against the decree.

Mr. Jacob, Mr. G. Richards, Mr. Knight, and Mr. S. Sharpe, appeared for the different parties. Powys v. Mansfield (1) was cited.

Will-Construction-Gift of Residue.

A testator, after bequeathing some pecuniary legacies, and some specific articles, directed "the residue" to be given to A :Held, that A. was entitled to the general residue of the testator's estate, and not the residue of such articles only as were ejusdem generis.

A, being entitled to the residue of a testator's estate, but which was not ascertained, directed, that if any "debts" were due to her at her decease, her executors should pay them to her children :-Held, that the residue to which she was entitled passed to her children, under that bequest.

James Bainbridge, by his will, after bequeathing a few pecuniary legacies, and making several specific bequests of per

(1) 6 Sim. 657; 8. c. 5 Law J. Rep. (N.S.) Chanc.

297:

sonal articles, wearing apparel, &c., concluded his will as follows:- -"And the residue to be given to my mother Grace Bolt; my books to be equally divided between Richard and Samuel; all the expenses that may be incurred by my funeral, to be paid equally, share and share alike by Richard, Eliza, Samuel, and Mrs. Samuel Bainbridge."

The testator died in June 1827. No part of his residuary estate had been paid over to his mother, nor had the amount of it been ascertained till after her decease. By her will, dated in May 1830, she directed as follows: "if any debts due me at my decease, I request my executors will collect and pay into the hands of my children." Her will contained several specific decrees and bequests, but no gift of residue. The testatrix died in May 1834.

Two questions were submitted to the Court; first, whether the language made use of in the will of James Bainbridge, was sufficient to dispose of the general residue of his estate, or was only applicable to the residue of such things as were ejusdem generis with the articles which the testator had specially mentioned before; and, secondly, in case his general residue passed to Grace Bolt, whether it was disposed of by the bequest in her will of debts due to her.

Mr. Knight Bruce, Mr. Loftus Wigram, Mr. Turner and Mr. Wray, appeared for the different parties.

been sustained, was borne by B. alone, who afterwards, without the concurrence of D, released C, his co-surety :-Held, that D. was thereby released from the moiety of the losses payable by C.

A deed, after reciting that A. had agreed to charge certain property with all sums which B. should pay as surety for a third party, together with interest on all such payments, and all such costs, &c. as he might sustain, &c., proceeded to charge the property with the payment of all such sums, costs, &c. with interest as aforesaid :-Held, that interest was not payable on the costs, &c.

By the same deed, A. agreed that B. should insure her life, and that the costs of such insurance, and the payments for keeping the same on foot, should be paid out of the property charged; and she directed the trustees to make the necessary payments for effecting and keeping on foot the policies. The trustees did not make the payments, but the policy was kept on foot by B :—Held, that he was entitled to interest thereon, at 4l. per cent.

A trustee for a married woman, having received notice of a charge executed by her, was held personally liable for payments afterwards made to her; and that, notwithstanding the validity of the charge was disputed by her, and no application had been made for an injunction.

This bill was filed by Samuel Hodgson, for the purpose of obtaining out of the separate estate of a feme covert, the benefit of a certain security, which she had executed under the following circumstances:In the year 1824, the defendant, William Hodgson, was appointed committee of the estate of Ann Barrow, a lunatic, and on the 8th of June in the same year, he, together with Henry Hodgson and the plaintiff, Samuel Hodgson, as his surety, entered into a recognizance in the sum of 9001., defeasible on William's duly accounting for the lunatic's estate, which should come to his hands; he did not duly account, and in April 1827, he became embarrassed in his circumstances, and a commission of bankruptcy issued against him, and very soon afterwards orders were made in the matter of the lunacy requiring him to pay considerable sums of money into court; he was desirous to supersede the commission

of bankruptcy, and to relieve himself from the pressure of the orders. No order had been made against the surety, but from some transaction subsisting between William and Henry Hodgson, it seemed that William thought he had a right to call on Henry to pay. No transaction of that kind was subsisting between William and the plaintiff Samuel, and it was thought desirable to induce Samuel to pay voluntarily his share at least of the debt in the lunacy. The defendant Susannah, the wife of William, was entitled for her life, for her separate use, to the residuary estate of Rice Pritchet, of whose will the defendant Daniel Letsam was executor; and on the 20th of June 1827, Susannah executed a deed-poll of that date, whereby it was recited, among other things, that two orders had been made for the payment, by William Hodgson, of 160l. 16s. and 537l. 9s. 1d., respectively, which sums William Hodgson, by reason of his bankruptcy, was unable to pay, and that the plaintiff Samuel Hodgson was desirous to pay his moiety of those sums, and of what further balance should be found due to the estate of the lunatic, Henry Hodgson being to discharge the other moiety thereof; and that Susannah had agreed to charge her life interest in Pritchet's estate, by way of security to Samuel Hodgson, and to give the executors authority to pay him, out of the rents of the estate, all such sum and sums of money as he might be liable to pay, and should pay, as well for his moiety or share of the said several sums of 160l. 16s. and 5371. 9s. 1d., so due and owing by the said William Hodgson, as such committee of the estate of the said lunatic, as of all such further sum and sums of money as should be found due and owing to the estate of the said lunatic, on passing the further accounts of the said William Hodgson, together with interest on all such payments by him, the said Samuel Hodgson, and all such costs, charges, and expenses, as he may sustain, pay, incur, or be put unto, in consequence of his being liable as a surety for the said William Hodgson. Susannah also agreed that an insurance on her life for 400/. should be effected, and that the annual premiums for keeping the same on foot, should be paid out of her life estate; and further, by means of her life interest, and

the rents and annual produce of the residue of the separate estate and the insurance, to indemnify and save harmless Samuel Hodgson of and from any further or other payment, which he might be compelled to pay in any respect whatever, in regard to the other moiety of the sum due, or to be found due, to the lunatic's estate. The deed-poll then witnessed, that Susannah charged all her life interest to pay and make good all and every such sum and sums of money, costs, charges, and expenses whatsoever, as he the said Samuel Hodgson should be obliged to pay, expend, incur, or be made liable to, as such surety as aforesaid, with interest as aforesaid on all such payments, and to save harmless, and fully indemnify him, the said Samuel Hodgson, his executors and administrators, as well from his own part, or share, or contribution of or towards the said several payments and liabilities, but also for or in respect of the other moiety, in case he should be compelled to pay the same, or any part thereof; and she directed the executors to pay out of the rents yearly, until the money intended to be secured should be repaid, the sum of 50l. a year, and such further sum as should be required for effectuating or keeping up the policy of insurance; and then there was a proviso, that Samuel should prove the amount of what he should have to pay as surety, as a debt against the estate of William, and apply the dividends in reduction of the security, and that when all this had been paid, the policy should be assigned to trustees for Susannah. The plaintiff, in pursuance of the agreement, with a view to which this deed had been executed, and in discharge. of his recognizance, paid several sums of money in respect of his being surety for Henry Hodgson. Henry Hodgson did not appear to have paid anything, so that Samuel's payment was not confined to his own contributory share, but was made in respect of the whole debt due from William; and as William paid nothing, and as the commission against him was according to the intention, before the execution of the deed, superseded, Samuel received nothing from any one in respect of his payment.

After the execution of this deed, some. negotiations for a varied security took place, but they did not appear to have