1837. PALMER v. BARRETT. possession of the said slaves as the only qualified and acting trustee and executor in the island of the Will of the said Samuel Barrett, and that the said Richard Barrett might be at liberty to apply the sum of 2,0297. 28. 3d. in his hands as such Receiver as aforesaid, on the 2d of June 1828, the date of the Master's last report, and all further sums since received by him from that time to the discharge of the said receivership in a due course of priority as the executor of the said Samuel Barrett, to the payment of his debts, and the legacies and annuities given by his Will, and that the recognizance of the said Appellant, Richard Barrett, as such Receiver, might be delivered up to him to be cancelled, and that the said Richard Barrett might be allowed to retain out of the monies then in his hands, his costs out of purse, incurred in that application. The prayer of this petition was opposed by the Respondents on two grounds: first, because the identity of the ninety-two slaves, and forty slaves, and their survivors and increase, had not been ascertained in compliance with the directal order of the 21st May 1808-an inquiry into which was then pending in the Muster's Office: and, secondly, because as they alleged the balance due to the estate of Edward Barrett was a lien and charge as well upon the said ninety-two slaves and forty slaves, as upon all other the real and personal estate of the said George Goodin Barrett; and the respondents further prayed for further directions and inquiries before the Master, upon points stated in their affidavits, filed in opposition to the petition. Upon the hearing of this petition, the Chancellor not only dismissed the petition, with costs, but proceeded, contrary to all the rules of practice known in this country, to engraft upon the order of dismissal the directions asked for by the Respondents. The grounds upon which the petition was dismissed do not appear, and their Lordships cannot find, in the reasons suggested by the affidavits filed in opposition to the petition, nor in the arguments urged at the bar, any sound objection to the prayer of the petition. The slaves in question having been formerly delivered up to the receiver by the Respondent's agent without any objection on the score of identity, must be taken to be the slaves adjudged by the decree to belong to Samuel Barrett's estate, for to such only did the order under which the delivery was made extend; and their Lordships do not consider themselves at liberty to inquire into the rights of the representatives of Edward Barrett to become the purchasers of any of the slaves in question under the covenants in the lease of 1789, or into their right to any lien upon the slaves in question, either as creditors or executors. Their Lordships look upon those questions as finally set at rest by the decree of the 2d of February 1820; and after the declaration and direction of that decree, can only regard the appointment of a Receiver of the rents and profits of those slaves, as made for the protection of those parties, who had already been declared entitled to the immediate possession of the slaves themselves, and not as placing those rents and profits in medio between the litigant parties, so as to entitle the Respondents to insist upon the continuance of the Receiver, until the accounts should be finally settled. Their Lordships will, therefore, advise Her Majesty that the order of the Chancellor of the Island, bearing date the 5th of February 1835, should be reversed, and that an order should be made for the discharge of the Receiver, and 1837. PALMER v. BARRETT. for the transfer of the balance in his hands, after making all just allowances to the account of the trustees of Samuel Barrett, with the usual directions. The second order appealed from was made on the 26th of March 1835, refusing, with costs, an application made by the Appellants by way of motion, that it should be referred to James Gayleard, esq. the Master in the said cause, to peruse and settle the draft of the conveyance and release from the heirs inheriting the real estate of George Goodin Barrett, under his Will, to the heirs of Edward Barrett, inheriting the Oxford and Spring estates in Trelawny, in pursuance of his Will, of all their estate, right, title, and interest, of and in the several parcels of land and premises, purchased by and in the name of the said George Goodin Barrett, for the use of the Oxford estate, from Simpson, Miller, Mead, and Others; and also Lancaster Penn, and all other lands in the said parish of Trelawny, which the heirs claiming under the Will of the said George Goodin Barrett, might lawfully claim as a consideration for the release of the debts (if any), due from the estate of the said George Goodin Barrett, to the estate of the said Edward Barrett, according to the condition contained in the Will of the said Edward Barrett, and the decree of the said Courts of 2d of February 1820; and that the said Master should be directed not to proceed with that part of the decree of the 21st of May 1808, which directed "an account to be taken and stated of all the estate, real and personal, of the said testator, George Goodin Barrett, deceased, and of what the same consisted, and how the same had been disposed of, and what had become of the same, and also an account of the actions and transactions of the said Edward Barrett, deceased, in and about the affairs and concerns of the said George Goodin Barrett, deceased, respecting all and every the real and personal estate of the said testator, George Goodin Barrett, deceased, during the time he was in possession thereof; and also an account of all and every, the actions and transactions of the said Henry Waite Plummer and Thomas Bourke, in, about, and concerning the personal estate of the said testator, George Goodin Barrett, deceased, since the death of the said Edward Barrett, deceased, and an account of all and every, the actions and transactions, receipts, payments, and disbursements of the said defendant, Leonard Parkinson, in, about, and concerning the real estate of the said George Goodin Barrett, deceased, during the time he had been in the possession of the same, and in receipt of the rents and profits," when and also with that part of the decree consequent on the aforesaid accounts which directed that "in taking and stating the said accounts of the actions of the said Edward Barrett, deceased, respecting the estates and concerns of the said testator, George Goodin Barrett, deceased, during the time he was so as aforesaid in the possession thereof, in the manner thereinbefore directed, the said Master should charge to the debit of the said estate of the said Edward Barrett, deceased, in the general accounts of his transactions, as executor of the said George Goodin Barrett, deceased, the amount of the valuation in the pleadings mentioned of fifty steers, also belonging to the estate of the said George Goodin Barrett, deceased, and taken and removed by the said Edward Barrett during such his possession and management of the real and personal estate of the said George Goodin Barrett, deceased, from the penn belonging to the 1837. PALMER v. BARBETT. 1837. PALMER v. estate of the said testator, called Thatchfield, to the penn belonging to him the said Edward Barrett, deBARRETT. ceased, called Retreat, as in the pleadings stated." The prayer of this application was also obviously and avowedly based upon the decree of the 2d of February 1820, but proceeds upon the assumption that that decree had a much more extensive effect than really belongs to it. Upon looking back to the Will of Edward Barrett, and to the circumstances under which it was made, it is obvious that the provision for the release of the debts due from the estate of his son George Goodin Barrett, as the consideration for the conveyance of the property mentioned in his, Edward Barrett's Will, was made under the belief that he had become the purchaser of the two classes of slaves which he had caused to be valued by the appraisers named by him, while standing in the double capacity of lessor and personal representative of his son, the deceased lessee; and although he had taken an erroneous view of the effect of this valuation, it is clear, that the debt which he intended to release and devise by his Will to the heirs of George Goodin Barrett, was the balance of the sum originally due from George Goodin Barrett, after deducting the value of the slaves in question; and if their Lordships had not found themselves restrained by the closing declaration in the passage of the decree of 1820 already cited, they would have thought the justice of the case and the intention of the testator best consulted, under the circumstances, by declaring that the Appellants in repudiating the Respondent's claim to the slaves as purchased by Edward Barrett, and in adopting the proceedings already referred to, had waived the option tendered to them under Edward Barrett's Will, |
