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The testator's personal estate being insufficient to pay his debts, his real estates were ordered to be sold, and the proceeds applied in payment of his debts remaining unsatisfied.

The Vice-Chancellor held that the Defendant, who was one of the unsatisfied creditors and also a trustee and executor of the will, was entitled to retain his debt out of the proceeds of the sale; and that his right was not prejudiced by the proceeds having been paid into Court (a).

Mr. Campbell appeared for the Plaintiff.

1844: 19th January.

Retainer. Trustee. Debt. Debtor and creditor.

A trustee of real estates sold the testator's for payment of debts, is entitled to retain a debt due to him

from the testator, out of the proceeds; and his right is not prejudiced by the proceeds having been

Mr. De Gex and Mr. Winstanley appeared for the paid into Court.

Defendants.

(a) See Loumes v. Stotherd, 1 Sim. & Stu. 458; Player v. Foxhall, 1 Russ. 538; Chissum v. Dewes, 5 Russ. 29; Langton v. Higgs, ante, Vol. V. p. 228.

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1844: 19th Jan.

Will.

Construction.

Trustee.
Legacy.

Testator

WALSH v. GLADSTONE.

C. R. BLUNDELL, esq., the testator in the cause, appointed John Gladstone, Robert Gladstone, and Thomas Robinson to be the executors and trustees of his will; and gave, to each of them who should prove and act, a legacy of 3007.; but, if any of them should die without having acted, or should refuse or decline to act, the legacy or legacies intended for him or them, were to go to the trustee or trustees who, under the power for that purpose contained in his will, should be appointed in his or their place. The will afterwards provided that, in case all or any of the said trustees, or any trustee or trustees to be refuse or decline appointed under that proviso, should die or be desirous to act, the lega

3007. to each of
his three trus-
tees and execu-
tors who should
prove and act:
but if any of
them should die
without having
acted, or should

cies intended for them, were to go to the trustees, who, under the
power for that purpose contained in the will, should be appointed in
their place. Two of the trustees died in the testator's lifetime,
and two new ones were proposed by the surviving trustee and
appointed by the Master in compliance with the decree in a suit
for administering the testator's estate. Held that they were not
entitled to the legacies intended for the deceased trustees.

Power to appoint new trustees.—Construction.-Trustee.
Testator, after appointing three trustees of his will, provided
that, if they, or any of them, or any trustee or trustees to be
appointed under that proviso, should die or be desirous to be dis-
charged, or go to reside beyond sea, or neglect or refuse or be-
come incapable to act, before the trusts should be performed, it
should be lawful for the surviving, continuing or acting trustees or
trustee for the time being or the last acting trustee, to nominate
a new trustee or trustees; and that the trust property which
should be or have been vested in the trustee or trustees so dying,
desiring to be discharged &c., and should then be subject to the
trusts of the will, should be vested in the new trustee or trustees
jointly with the surviving or continuing trustee or trustees, or
solely, as the case might require. Two of the trustees died in the
testator's lifetime. Query, whether new trustees could be ap-
pointed under the power? her &
Andre 15 din 375

itiller v Priddon / Del. Maen. & Gor. 344. E of Lonsdale v Beckett 4 DeG. VS. 74.

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