1855. Feb. 8. By indenture, E. D. of the EDWARD DOD, Administrator of EDWARD DOD, deceased, THIS was an action by the plaintiff, as administrator cum testamento annexo of Edward Dod, of Calveley, against the defendants, as executors of Ralph Dod, of Chorley.-The declaration stated, that by an indenture, made the 28th of March, 1795, between Elizabeth Dod, widow, and John Dod, of Chorley, and Edward Dod, of Calveley (executrix and executors of Edward Dod, deceased, late of Chorley), of the one part, and Ralph Dod, of Chorley, of the other part, reciting that the said Edward Dod, of Chorley, by his last will, dated the 2nd of January, 1786, after making cerchildren, and tain bequests, gave all the rest and residue of his personal the resi due of his per sonal estate equally amongst his also directed that his daughter M. should only receive 5001. estate, money, and debts to him owing, equally amongst his several children, John, Edward, Ann, Samuel, Ralph, Richard, and Mary: he also directed that his daughter at the age of Mary should only receive 500l., part of her share of his personal estate, when she arrived at the age of twenty-one of her share twenty-one, and that his executors should place out the remainder at interest, to be paid her during her life, and, after her death, such remaining principal to be equally divided amongst her children; and, in case of her death without issue, amongst such of the testator's children as should be then liv ing: that E., one of the executors, purchased a farm, which he conveyed to R. D., in consideration of 20007.; that there was in the hands of the executors 16201., of which 4008. was in trust for M.; and that the executors had agreed with R. D., that the said sum of 16007, should be received by him and applied towards the payment of the purchase-money of 20007. for the said estate, and should remain in his hands, with interest at 41. 108. per cent.; and that R. D. should also be chargeable with such principal money from time to time as might become payable, agreeably to the will of the testator: It was witnessed, that, in consideration of the said sum of 1600l. trust money, so by these presents lent to R. D. as aforesaid, R. D. covenanted with the executors to pay them, for the use of the testator's children, interest for their respective shares at the rate of 41. 10s. per cent.; and also to pay such principal money as might become payable, from time to time, agreeably to the recited will. Then followed a power to receive the rents or sell the premises on default in payment of the interest or principal; also a covenant by R. D. to pay the interest and principal to the executors for the use of the testator's children; and a covenant by the executors, that R. D. might, on payment of interest, retain in his hands the said sum of 16001., agreeably to the will of his late father. All the other children of the testator died in the lifetime of his daughter M., who died without issue. The administrator of the surviving executor having brought an action against the executor of R. D. to recover the 400l.:-Held, that this was money lent, which the defendant was bound to pay to the plaintiff, and not to the adminis trator de bonis non of the original testator. years or day of marriage; and did further direct that his executrix and executors should place out at interest the whole of Mary's share, and continue the same at interest during her minority, and the remainder of her share to continue at interest, to be paid her during her life; and after her death, he directed such remaining principal money *to be equally divided among her children when his executors and executrix should think fit; and in case of her dying without leaving lawful issue, the remainder of her share to be equally divided amongst such of his children as should be then living, &c.: that the said testator, Edward Dod, died without having altered or revoked his will; that afterwards the said Edward Dod (party thereto), one of the executors of his father Edward Dod, purchased a farm, which he conveyed to the said Ralph Dod, his heirs and assigns, or in trust for him or them, for the consideration of 2000l.: that Ann Dod married S. Harrison, and that Mary Dod married G. Reade, and had then received their then distributive shares of their respective legacies, so payable under the will: and that there appears to be now in the hands of the said executrix and executors the full sum of 16207., viz. 9007. in trust for Richard Dod, 3201. in trust for Ann Harrison, and 400l. in trust for Mary Reade; and that the said Elizabeth Dod, John Dod, and Edward Dod, the executrix and executors as aforesaid, have consented and agreed, to and with the said Ralph Dod, that the said sum of 1620l., the undivided shares of the said Richard Dod, Ann Harrison, and Mary Reade, shall be received by him the said Ralph Dod, and be applied by him towards the payment of the said purchase money of 2000l. for the said estate, and shall remain in his hands, with interest, payable after the rate of 4l. 10s. per cent. to the said executrix and executors, or to the said Richard Dod, Ann Harrison, and Mary Reade; and that the said Ralph Dod shall also be chargeable with such principal money or monies, from time to time, as may become payable agreeably to the will of the 1855. DOD V. DOD. 1855. DOD v. Dod. said testator, all interest for the said principal sums having been paid to the day of the date hereof.-The indenture then witnessed, that for and in consideration of the said sum of 16201. trust money so by these presents lent to the said Ralph Dod as aforesaid, he the said Ralph Dod, for himself, his heirs, executors, and administrators, doth covenant, promise, and agree, to and with the said Elizabeth Dod, John Dod, and Edward Dod, executrix and executors as aforesaid, that he the said Ralph Dod, his heirs, executors, administrators, or assigns, shall pay unto the said executrix and executors, or the survivors of them, for the use of the said Richard Dod, and to the said Ann Harrison and Mary Reade interest for their respective shares at the rate of 41. 108. per cent. per annum; and also shall and will pay such principal money or monies as may become due and payable, from time to time, agreeably to the said recited will.— Then followed a proviso, that on default in payment of the interest or principal in six months after demand, the executrix and executors might receive the rents, or sell any part of the premises that would pay the interest and principal.— The indenture also contained a covenant by Ralph Dod for payment to the said executrix and executors of the interest and principal for the use of the said Richard Dod, Ann Harrison, and Mary Reade, as the same might become payable; and also a covenant by the said executrix and executors, that the said Ralph Dod might, on payment of the interest, retain in his hands the said sum of 16201., "agreeably to the will of his late father."-The declaration then recited, that the said Elizabeth and John Dod died in the lifetime of Edward Dod, of Calveley, and that the sums of 900l. and 320l. were respectively paid in satisfaction of the covenants in the said indenture; and that the sum of 400%, part of the said sum of 16207., was part of the personal estate of Edward Dod, of Chorley, deceased, and mentioned in the recitals of the indenture as the remainder of the share of the said Mary, and no part of the said sum of 500l., which she was to receive at the age of twenty-one, or on her marriage; and that all the other children of Edward Dod, of Chorley, died in the lifetime of the said Mary, who was his daughter, and who died without leaving issue; and that, in the events aforesaid, the said 400l. was not, upon the death of the said Mary, bequeathed or disposed of by the said Edward Dod, of Chorley, and the same, within the meaning of the covenant in the said indenture, became, upon the death of the said Mary, payable to and amongst divers persons, and a reasonable time for the payment thereof elapsed after the death of Mary and before the suit. The declaration then alleged as a breach, the nonpayment of the principal sum of 400l. by the said Ralph Dod, or his heirs, executors, administrators, or assigns. Demurrer and joinder. Hugh Hill (Simpson with him) in support of the demurrer (Jan. 24).—The questions are, first, whether the defendants, as executors of Ralph Dod, are under this deed liable to pay the principal sum of 400l.; and if so, secondly, whether they are liable to pay it to the plaintiff. Those questions depend entirely on the construction of the contract entered into by Ralph Dod. By that contract he is to retain the principal money on payment of interest; but he is to become chargeable with such principal money as may become payable, agreeably to the will of the original testator. Now Mary Reade died without issue, having survived all her brothers and sisters. The will, therefore, does not provide for the application of this money. It is a lapsed legacy, and the law gives it to the next of kin of the original testator. Therefore, assuming that the defendants are liable to pay this 400l., they are only liable to pay it to a party claiming as administrator de bonis non of the original testator. [Alderson, B.-How can the principal be paid agreeably to the will, when the will does not provide for its 1855. DOD v. DOD. 1855. DOD v. DOD. payment in the events which have occurred?] The defendants are not liable to pay the amount, except to the party legally entitled to it, and the plaintiff ought to have shewn that he is the true party to whom the payment must be made. The declaration ought to negative the fact of there being any other claimant. First, it was Cowling (Holland with him) contrà. never intended that Ralph Dod should keep the 400l. The deed is inartificially drawn; but it is clear from its terms that the parties considered it as a loan. The testatum part of the deed commences by stating that the money was lent, and that is the consideration for its repayment. The subsequent clauses only shew the terms on which the loan was made, and the security for it. [Parke, B.—If it can be collected from the whole instrument that the money was to be repaid to the plaintiff's testator, there is no defence.] It is treated as a loan of trust money, payable either to the trustees or the cestui que trust. The transaction amounted to a devastavit, and probably, in order to conceal its real nature, the deed was thus framed. [Alderson, B.-Ralph Dod was to retain the money so long as should be "agreeably to the will," but no longer; and that limited time has expired.-Parke, B.-The money is treated as a loan, and that imports that it is to be repaid.] The Court then called on Hugh Hill in reply.-The covenant is to pay the money to the persons entitled under the will of the original testator. Events have occurred which the parties never contemplated, and by which this money has become a portion of the undisposed residue of the testator's estate. Therefore the person entitled to recover it is the administrator de bonis non, who would be bound to distribute it amongst |