1792. ATTORNEY- t. The Haber and TONNA. that he might make leases, provided he reserved rents sufficient for the purposes of the charity. He did afterwards make a lease of it to his relation, reserving £175 a year. When these objects were satisfied the trusts were secured, as far as it was confined to £175 a year; and then the general trusts in the first deed were to be executed. With respect to the heir, there could be no intention in dasher's Company his favour. It is argued on the ground of omission, because there is nobody else to take: but here, by the deed, there is somebody to take. In the usual case the surplus results to the charity; it is not necessary to look further for objects: it must be applied for the benefit of the charity, either to extend it to new purposes, or which is better, to increase the present provisions. The charity being limited for a time, the accumulation must go to the purposes of the charity. There is no such necessity that we must decree it to the heir for want of objects, and therefore there is nothing resulting to him. Therefore there must be an account of the rents and profits, &c. The other Lord Commissioners assenting, a decree was pronounced accordingly (a). (a) That there is no resulting trust for the heir at law, vide also Ex parte Jortin, 7 Ves. 340. The Attorney-Gemeral v. Wansay, 15 Ves. 234. As to the application of the doctrine of [ 113 ] MR. WATTS . MARTIN. 15th November. R. Solicitor-General moved that an estate, which had been Sale. Bidding sold before the Master in separate lots, might be again put opened. up to sale in one lot, a considerable advance having been offered, and the Master's report having only been confirmed nisi. The residuary legatee and the trustee appeared, and consented. The purchasers of the lots opposed the motion. The Court allowed the hardship of the case; but observed, that as the residuary legatee and the trustee consented, they could not refuse the motion, as the former purchasers might claim and be satisfied the expences they had sustained in consequence of the former sale before the Master (a). (a) For the doctrine and cases upon this subject vide Prideaux v. Prideaux, ante, vol. i, 287. 1792. 17th Nr.mber. Lords Commis sioners, Eyre, Ashhurst, and Wilson. A creditor having (h) Ex parte WHITE in the Matter of WHITE, a Bankrupt. THE petition of the bankrupt stated the commission of bankruptcy in 1779, that the credtior proved a debt, and in 1785 received a dividend; afterwards, in 1792, he brought an action, against the bankrupt, and held him to bail, and took an assignment proved under a commission and of the bail-bond. The prayer was, that the creditor might not received a divi- proceed at law against the bail, he having received a dividend under the commission, or that such order might be made as the Court should think fit. dend, to proceed at law against the bankrupt or his bail, must refund the dividend. 2 Ves. jun. 11. 20th November. Lords Commis Ashhurst. Great length of time raises a preBumption that a legacy has been paid. Mr. Stanley, on behalf of the creditors said, that upon repaying the dividend he might proceed at law. Mr. Abbot, in support of the petition, to shew that though this rule might apply as to the bankrupt himself it would not as to his bail, cited Aylett v. Harford, 2 Bl. Rep. 1317. Lord Commissioner Ashhurst.-Having acquiesced three years, I think he ought to be bound. Lord Commissioner Wilson.-It seems to be the admitted principle that, upon refunding the dividend, he may proceed, and this case seems within the rule. Lord Commissioner Eyre.-I think it must be bound by the general rule. The common order was made that, on refunding the dividend, he might be at liberty to proceed. (h) S. C. 2 Ves. jun. 9. under the name of Wright, S Ves. 1. JONES . TURBERVILLE. sioners, Eyre and LEWELLIN WILLIAMS made his will, dated 25th of October, 1748, and therein gave " to his daughter Elizabeth Williams the sum of £200, to be paid her within one year after his decease by his executors, thereinafter named." He also gave several other charitable and pecuniary legacies, and gave the residue of his real and personal estates to Richard Tuberville, and Richard Powell for payment of debts and legacies, and, after payment thereof, he gave the same to his son Philip Williams, and appointed Turberville and Powel executors. Where an estate is charged with debts and legacies, a creditor by bond is not admissible evidence that the legacies are not paid. By By indenture, dated the 31st of October, 1748, said testator conveyed to Turberville and Powel, and their heirs, &c. premises situate in Broughton Gifford, Wilts, in trust, to pay the debts and legacies of the said testator, in case his personal estate should not be sufficient; the personal estate to be first applied: and after raising sufficient to pay the same, to the use of Elizabeth Williams (his wife) for life; remainder to the use of Mansell Williams (the younger son) in fee. Llewellin Williams, the testator, died the 17th of November following, leaving Elizabeth his wife, and Philip and Mansell his sons, and Elizabeth his daughter (who afterwards married the plaintiff) surviving him. The executors proved the will. Elizabeth Williams, the widow, who was entitled for life (subject to the payment of debts and legacies) to the estate at Broughton, died the 23d of July, 1775, Philip the son and heir (a minor at the death of his father) took the principal part of his real estate under a settlement, and entered into possession of a leasehold estate under the idea that it was freehold; and having by will given all his personal estate to the defendant Catherine, died 1st of September, 1772, leaving the defendant John Williams, a minor, the son of his brother Mansell, his heir. Mansell Williams the younger son of the testator (to whom his mother had made over her interest in the Broughton estate, subject, &c.) received_the rents till his death, 23d of July, 1771; he left a widow, Jane Williams, and John Williams his heir at law, and heir to the testator; Jane Williams received the rents of the trust estate, in right of her son John, till he attained his age of twenty-one in 1778, and then John entered into possession, and has remained so to the present time. This was a bill filed by the plaintiff Jones, as administrator of his late wife Elizabeth, the testator's daughter, on behalf of himself and the other unsatisfied pecuniary legatees of the testator, against the widow and executrix of Turberville, the surviving trustee and executor of the testator, the representatives of Powel, and the Williams's, for the legacy to his late wife, and for proper accounts, and that other unsatisfied legatees who should come in and contribute to the suit, might be paid their legacies. The defendants, in their answers, relied upon the length of time that had elapsed, as a presumption that the legacy had been paid. The evidence that was read was of declarations of Elizabeth Jones, that her legacy had not been paid, and of other persons interested in the subject. Joanna Williams, the principal witness, spoke to a declaration of Philip Williams, that the legacy had not been paid, and that he blamed his brother Mansell for its not being so; but in the same deposition she said that there was a bond debt due from the estate of the testator to her and her sister, with a great arrear of interest which remained unsatisfied, and she believed there were other bond sreditors unpaid. 1792. JONES v. TURBERVILLE. [116] 1792. JONES t. TURBERVILLE. [ 117 ] This evidence was offered as raising a presumption that the legacies were not paid; but being objected to by the defendant's counsel, the Lords Commissioners thought it inadmissible, as paving the way for the recovery of her own demand. Mr. Mansfield and Mr. Stratford for the plaintiffs, argued, that if length of time raised a presumption that legacies had been paid, circumstances might be adduced to repel that presumption. But, Lord Commissioner Eyre said, that he thought the analogy to the statute of limitations ought to prevail in these cases, and that after so great a length of time no legatee ought to recover; and by way of example to others, he thought the bill ought to be dismissed with costs against all the defendants. But, Lord Commissioner Ashhurst thinking it would be hard on the plaintiff, who had probably lost his legacy, and had been perhaps ill advised, to charge him with costs: The bill was dismissed, as against the defendant Catherine, with, and against the other defendants, without costs (a). (a) For the doctrine and cases upon the subject of length of time, vide Deloraine v. Brown, ante, vol. iii. 633. S. C. 2 l'es. jun. 23. 24th November. Lords Commis sioners, Eyre, Ash hurst, and Wilson. Exceptions will lie to an award, but they must be to matters on the face of it, and not to matters of fact, of which the arbitrators are the proper judges. DICK V. MILLIGAN. THERE being complicated mercantile accounts between the parties, they had, by consent, been referred to arbitrators, who were to take them in the same manner as before the Master, but there was a provision that the award should be final between the parties. An award was made. Exceptions were afterwards taken, because the arbitrators had not stated the balances of the particular accounts, from which they had drawn the general balance. The first question agitated was, whether exceptions would lie to an award. This question was argued much at large, but was reducible to this: That the exceptants relied on the cases of Cressly v. Carrington, 1 Vern. 469, and Hide v. Cooth, 2 Vern. 109. that exceptions will lie to an award. In support of the award it was argued, that the award was final, being by judges appointed by the parties. Lord Lord Commissioner Eyre (a few days after the argument) pronounced the opinion of himself and the other Lords Commissioners, to be, that exceptions would lie to an award, but that this was open to objections to the nature of the exceptions. And on this day the exceptions were opened, when it appearing that they were to the facts of the case, and particularly to the arbitrators having drawn a general balance, and not having stated the particular balances, or how that general balance arose. Lord Commissioner Eyre gave his opinion to the following effect When we made up our minds, that exceptions may be taken to an award, we only meant that some exceptions might be taken, but we agree that nothing that goes to the facts in the award, can come on by exceptions. It was argued, that this was a reference to arbitrators, to be conducted in the same manner as it would be before the Master; and there are words in the reference that seem to point at this; but we are of opinion that it was not a reference of this kind, and that it is impossible that it should be the same as a reference to the Master, because there is a radical difference between such a reference and an award; the Master, in a reference to him, being only the Minister, and the Court the judge; but arbitrators are clearly the judges of matters of fact. There is a clause too in the reference, that the award shall be final; whereas nothing done before a Master is final. The only question that remains is, whether it was necessary that the arbitrators should set forth in schedules the balances of the particular accounts, which make the general balance; and this we think unnecessary. If all the allowances and disallowances are set forth, nothing would result from it; the Court could make no order. The arbitrators say they have considered the accounts, and find that such a balance is due. Why require them to make a more particular award than is common in these cases? There is a distinction between an award that is to be final, and one that is only to find a particular fact; when the reference is to be final, and all the accounts are before the arbitrators, the Court can only dispose of the costs. It would be of mischievous consequence, if wherever the Court sends complicated accounts to arbitrators, they should set out all the particulars, it is much better that the award should be made in the short way it is. Lord Commissioner Ashhurst.-In mercantile transactions, the reference to merchants is more competent than to the Master of the Court. It would be nugatory to consider the arbitrators, as only being in the situation of the Master.. This is a common reference, except the words, that the accounts are to be taken in like manner as before a Master. At the same time it is provided that VOL. IV. H the .1792. DICK v. MILLIGAN. [ 119 ] |