XXXIV. Decree by the Lord Chancellor reversing an order of dismission made by the Master of the Rolls, and directing inquiries as to the application of certain trust-monies and the acts of the trustees thereof relative thereto, and in case the Master should find that either of the trustees had committed a breach of trust, then the Master to state in what such breach of trust took place, and whether the cestui que trust knew of the trustees' liability in respect of such breach of trust previously to her executing a power of attorney. (Walker v. Symonds, 3 Swanst. p. 2, 44.) [The decree on further directions is inserted postea, p. 398.] That the order of dismission made on the hearing of this cause be reversed, and that it be referred to Mr. Thompson one &c. to inquire and report in whose hands the trust-money mentioned in the pleadings had been since the year 1782, and when the same should appear to have been placed out on any security or securities, to report on what security or securities the same was placed out; And it was ordered that the Master should state specially and particularly the nature of such security or securities when the same were not government or real securities, and also report in whose custody possession order or disposal the instruments of security were from time to time, and that the Master should also inquire and report what were the acts of each of the trustees respectively as to the receipt and placing out of the trust-money from time to time and the possession of the securities for the same; And it was ordered that such inquiry should be made not only as to the acts of the trustees respectively, but as to the consent permission or privity of each of the trustees respectively to any act of the others or other of them; And that the Master should inquire and report whether the trustmoney was at any time and for what time in the hands of any of the trustees without security, and whether the same was so with the consent privity or permission of the others or other of them, and in case upon such inquiries it should appear to the Master that the defendant William Symonds deceased or Thomas Griffith by any act neglect or default committed any breach of trust in respect of which they or either of them were or was answerable personally for the trust-money or any part thereof, that the Master should state in what such breach of trust took place; And it was ordered that the Master should inquire and report whether the plaintiff Loveday previously to her executing the power of attorney in the pleadings mentioned had any knowledge or notice that by reason of such breach of trust they or either of them were or was so answerable; and it was ordered that the Master should state all special circumstances; And for the better discovery of the matters the parties were to be examined upon interrogatories &c., and his Lordship reserved the consideration of costs and of all further directions until after the Master should have made his report, and any of the parties were to be at liberty to apply to the court as they should be advised.-Reg. Lib. B. 1811, fol. 1211. *XXXV. Decree on further directions, over-ruling exceptions which had been taken to the Master's report, and declaring that the assets of two deceased trustees were liable to make good a breach of trust by the decree declared to have been committed by the deceased trustees, reserving liberty to their representatives to use the names of the plaintiffs in any proceedings which they might be advised to take against other persons upon giving an indemnity to the plaintiffs to be settled by the Master; an account directed to be taken of principal and interest due in respect of the trust-money, and of the plaintiffs' costs, the same to be paid out of the assets of the two deceased trustees;—the bill dismissed as against one defendant without costs, but without prejudice to any ulterior proceedings. (See the preceding decree, and 3 Swanst. p. 79.) The decree ordered that the exceptions be over-ruled as insufficient, and that the sum of £5 deposited with the register &c. be paid to the plaintiffs, and his Lordship declared that the late defendant William Symonds and Thomas Griffith were proved to have committed a breach of trust in respect of which they were answerable personally for the trust-money in question, and that under all the circumstances of the case the plaintiff Loveday Walker ought not to be considered as having relinquished or barred herself from the right to consider them as being so answerable for the said breach of trust, or as having bound herself to accept such provision only in respect of the trust-money as she or William Symonds and Thomas Griffith were or might be entitled to under the trusts of the indentures of lease and release of the 24th and 25th days of March 1797, but that under such circumstances either the plaintiff Loveday Walker under the true construction of the said indentures remained entitled to charge William Symonds and Thomas Griffith personally, or if she was not so entitled under such construction she was not bound to take the benefit of such provisions and relinquish her demands against them personally on account of such breach of trust; And his Lordship declared that William Symonds and Thomas Griffith having made themselves by having executed the said indenture of release and other acts creditors of the defendant Isaac Harris, as in the said indenture of release is mentioned, and the plaintiff Loveday Walker not having been bound to accept the benefit of their demands as such creditors, the plaintiffs were entitled to have such payment made out of and such account directed as thereinafter was ordered and directed as to the assets of William Symonds and Thomas Griffith respectively, without compelling an account to be taken of the assets of Nicholas Donnithorne deceased, which appear to be included in the trusts of the said indenture of release, or enforcing in the said suit any demand which by the plaintiffs or on their behalf could be enforced under the trusts of that indenture, but with such liberty reserved to the respective representatives of William Symonds and Thomas Griffith as thereinafter provided; And it was ordered that it be referred to the Master to take an account of what remained due to the plaintiffs for principal and interest of the trust-money in question, and that the defendants William Symonds and Thomas Cooke out of the assets of the late defendant William Symonds deceased, and the defendant John Lilly out of the assets of Thomas Griffith pay what the Master should find to remain due for principal and interest on taking the said account, into the bank with the privity of the Accountant-General, to be there placed to the credit of the cause, "The plaintiff's account," subject to the further order of the court, and the plaintiffs were to be at liberty to make such application to the court touching the same as they should be advised; And in case the defendants William Symonds and Thomas Cooke should not admit assets of William Symonds deceased sufficient for the purpose aforesaid, then they were to come to an account before the Master for his personal estate come to their or either of their hands &c. and unless the defendant John Lilly should admit assets of Thomas Griffith, It was ordered that the Master do take an account of his personal estate come to the hands of John Lilly his executor &c.; And his Lordship declared that in case after having satisfied what they were liable to pay under the directions thereinbefore contained, the defendants William Symonds and Thomas Cooke and John Lilly as 399. such representatives respectively as aforesaid or any representative of Symonds or Griffith respectively should be advised to make any claim or demand against the assets of Nicholas Donnithorne deceased, or against the trust-premises or the trustees in the said indenture of release contained and named, or against the defendant Isaac Harris, which it should be necessary or they should be advised to make in the names of the plaintiffs or any of them, they were to be at liberty to use the names of the plaintiffs or any of them in any such proceedings, they giving to the plaintiffs a proper and sufficient indemnity against the costs and expenses of all such proceedings; And it was ordered that such indemnity be settled by the Master if the parties differ about the same; And it was ordered that it be referred to the Master to tax the costs of the plaintiffs, and that such costs when taxed be paid by the defendants the executors out of the assets of their respective testators; And it was ordered that the plaintiffs' bill as against the defendant Harris be dismissed without costs between the plaintiffs and him, but such dismissal was to be without prejudice to any such proceedings as aforesaid for the benefit of the representatives of the other deceased trustees, either in their own names or those of the plaintiffs or any of them thereafter to be taken relative to the matters in question; And for the better taking of the said accounts the parties were to produce before the Master all books &c.; and the Master was to be at liberty to make a separate report or separate reports of any of the matters aforesaid; And his Lordship reserved the consideration of all further directions until after the Master should have made his report, and any of the parties were to be at liberty to apply to the court as there should be occasion.-Reg. Lib. B. 1817, fol. 1977. XXXVI. Decree for an account of a testator's personal estate (Earl of An account to be taken of the personal estate pos-. sessed by the plaintiffs and defendant, also of the testator's debts, fune cies; Decree that it be referred to the Master to take an account of the personal estate of the testator Richard Cantillon deceased which has been received by the plaintiffs the Earl and Countess of Stafford and the defendant F. Garvan or any of them or by any other person by their or any of their order or for their or any of their use; Let the Master likewise take an account of the said testator's debts and funeral expenses, and of the annuities and other legacies ral expenses, angiven by the will, and what is due for the arrears of such annuities; nuities, and legaAnd let the Master compute interest on such of the legacies as carry the Master to interest from the end of one year from the said testator's death compute interest at the rate of 4 per cent.; And let such personal estate be applied in payment of the said testator's debts funeral expenses annuities and other legacies in a course of administration; And in taking of the accounts of the said testator's personal estate against the said by the executor during the plaindefendant F. G. in case the Master shall find any account stated tiff's minority between him and the administrators during the minority of the not to be unraplaintiff the Countess of S. (2), he is not to unravel the same; And it being insisted on in the cause that there was a debt due from the executor dethe testator at the time of his death to the said defendant F. G., declare that the said defendant is not entitled to claim both his on such legacies as carry interest; accounts stated velled; clared not entitled to claim both his debt and (2) The executors Garvan and Stoper had renounced probate, and letters of administration with the will annexed were granted during the minority of the testator's daughter, and for her benefit, to the testator's widow, who had intermarried with F. Bulkeley. |