The true principle is, that, for all purposes of injunction, the master's report is considered conclusive, subject always to the revision of the court.

The order nisi must be discharged, on the admitted ground, that the order ought to have been absolute in the first instance.

AT THE ROLLS.

1823. Dec. 16.

}

COCHRANE V. CHAMBERS.

A cause ought not to be set down in the paper of further directions when only a separate report has been made, and there is no general report.

In January, 1823, a separate report had been made in this cause, and a petition was presented upon that report. At the hearing of the petition, before Mr. Baron Graham and two masters, the objection was taken, that the master had no authority to make such a report; that it was in truth a report involving the whole subject of the suit, and that the petition in effect asked for a decree, which could not be had, till, after a general report, the cause came to be heard upon further directions.

The court decided, that it should be sent back to the master to review his report.

Afterwards this order was recalled, and another order was made, directing that the cause should be set down forthwith, to be heard on the master's report.

In pursuance of this order, as it was understood by the plaintiff, the cause had been set down in the paper of further directions, and was now called on.

Mr. Sugden, having begun to state the case for the plaintiff,

Mr. Horne objected, that a cause could not be set down generally on further directions, when no general report had been

made.

For the plaintiff, it was insisted that this was the course prescribed by the order which had been made. If that order was wrong, it ought to have been appealed from.

Mr. Horne replied, that the defendant relied upon the plain principle, that a cause could not be heard on further directions, till a general report was made. The order which had been made did not preclude or remove this objection,

Where a person creates an equitable mortgage, and dies intestate before he has conveyed the legal estate, leaving an infant heir, the equitable mortgagee can obtain only a modified decree against this infant,

An equitable mortgage was made by articles of agreement, in which the mortgagor covenanted to execute a legal mortgage. The title deeds were subsequently deposited with the mortgagee; but, before he procured a conveyance of the legal estate, the mortgagor died intestate, leaving an infant heir.

The bill was filed to give effect to the equitable mortgage.

The master had found the fact of the agreement to mortgage the estates in question, and the amount of the sum due upon that equitable mortgage.

Mr. Beames stated that the case was involved in some difficulty, in consequence of the heir being an infant. Spencer v. Bryes* was, however, a case in point, and he should be contented with a decree in a form similar to the decree that was made there.

The Court gave the plaintiff such a decree. It directed, that, unless the principal, interest, and costs, were paid within a given time, the plaintiff should hold and enjoy the mortgaged premises, as against the defendant, until he attained the age of twenty one years; and the defendant, upon attaining that age, was to convey the premises according to the agreement.

vour of A., devises Blackacre specifically, and gives the rest of her real estates to trustees in trust for A.: a bill for the execution of the trusts of the will is filed by A.; but, in the prosecution of the suit, no order is asked or made with respect to the devised estates; and the decree, on further directions, relates merely to costs, and to the raising of the pecuniary charge out of all the estates of the testatrix: Afterwards A. files a bill of revivor and supplement against both the real and the personal representatives of a deceased defendant, who had been in possession of Blackacre, charging that he and they had received the rents and profits of a tenement as being part of Blackacre, though in truth it was part of the premises devised to A.: Held, that the character of the suit was not changed by the limited decree which the plaintiff took, and that such a bill of revivor and supplement cannot be demurred to as being multifarious, in relation to the matters affected by the previous proceedings.

Sarah Morris, under a power reserved to her in her marriage settlement, devised all her real estates, subject to her husband's life interest therein, to trustees, upon trust, after her husband's decease, to raise thereout 1000l. for Jane Traherne, and subject thereto upon trust for Thomas Morgan for life, remainder to his issue in tail, remainder to Jane Traherne for life, remainder to her issue in tail, with an ultimate remainder in fee to Robert Morris the husband.

The testatrix made several codicils to

her will, the effect of which was, among other things, to give to Jane Traherne the ultimate fee which had been previously limited to Robert Morris, and to devise to him a tenement called Penyrheol, and to Thomas Morgan a tenement called Dan y lan.

Sarah Morris died in 1790, and Robert Morris in 1793. Thomas Morgan then entered into possession of Dan y lan, as devisee in fee, and of the other estates, except Penyrheol, as tenant for life. He dying in 1804 without issue, Jane Traherne, besides being entitled to the sum of 1000l. charged upon all the estates of Sarah Morris, became likewise, as to the whole of these estates, except Dan y lan, and Penyrheol, tenant for life, with remainder to her issue in tail, and ultimately

to herself in fee. Dan y lan was taken possession of by one William Phillips, who claimed it by a title derived under the will of Mrs. Morris's father.

In Hilary Term, 1805, Jane Traherne, who was then an infant, filed her bill by her next friend against the necessary parties, among whom was William Phillips, stating these facts, and praying, that the will and codicils of Mrs. Sarah Morris might be established, and the trusts thereof carried into execution; that the proper accounts might be taken, and that directions might be given for raising the sum of 1000l, with interest.

William Phillips, in his answer, insisted, that Sarah Morris was only tenant for life of Dan y lan, and that that tenement, though included in her marriage settlement, was not subject to the uses or trusts

of her will.

On the 25th of November, 1811, a decree was made:* in pursuance of which, the master, on the 24th of March, 1814, reported that Sarah Morris, at the times of making her will and codicils, and at her death, was seized of the estates mentioned in her marriage settlement, and amongst others of Dan y lan, with a power of appointing them.

On the 8th of July, 1817, the cause was heard on further directions, when a decree was made,+ which confined itself merely to giving directions for raising the sum of 1000l. and apportioning it among the different estates which were subject to the charge. In 1822, the present bill, which was a bill of supplement and revivor, was filed by Jane Traherne. It stated, that William Phillips had taken possession of and received the rents and profits of a tenement called Aberkeddy, as being part of Dan y lau; that Aberkeddy was part of the estates that had belonged to Sarah Morris, but was no part of Dan y lan; that the plaintiff was entitled to Aberkeddy under the general devise or appointment to her, contained in Mrs. Morris's will; that Wil

William Phillips died in December, 1811, shortly after the original decree was pronounced; and the suit was prosecuted for some time without having been revived against his real and personal representatives. The bill of revivor and supplement, which was filed after the decree on further directions, did not state the date of his death,

† 4 Vesey Jun. 370.

liam Phillips died some time since, intestate and that she had brought an ejectment for the recovery of Aberkeddy against his co-heiresses at law, who where in possession of it, when she discovered, that he, during the pendency of the suit, had, for the purpose of defrauding the plaintiff, levied a fine of both the messuages by the one name and description of Dan y lan, so that she was unable to proceed in her ejectment, and was obliged to discontinue the same.

The prayer was, that the proceedings, which had become abated by the death of William Phillips, might stand revived against his real representatives; that it might be declared that Aberkeddy was not a part of Dan y lan, but passed to the plaintiff; that an account might be taken of the rents and profits of Aberkeddy received by Phillips in his lifetime, or by his real representatives since his death, and that what might be found due to the plaintiff on such account, might be paid to her.

Subsequently, the bill of supplement and revivor was amended by making Sarah Phillips a party to it. She was the personal representative of William Phillips, and was brought before the court in respect of the account of the rents and profits of Aberkeddy, which had been received by William Phillips during his life.

To the bill and amended bill of revivor and supplement, Sarah Phillips put in a demurrer, which assigned, as cause of demurrer, that the bill was exhibited for several distinct matters and things.

Mr. Bell and Mr. Wilbraham were for the demurrer.

Mr. Hart and Mr. Roupell, for the bill. The argument for the demurrer was in substance the following: Though the suit was originally framed with a view to the execution of all the trusts of Mrs. Morris's will, and though the plaintiff, in that suit so framed, might have asserted her claim to Aberkeddy, as arising under those trusts, yet the suit, from the mode in which it was prosecuted, acquired a totally different character. Ultimately, it became a mere suit for raising the sum of 1000l., and apportioning that charge among the estates which were liable to it. The plaintiff had chosen to waive all, except this one part of her case. No account was decreed of the rents and profits received by Phillips. The

decree on further directions related merely to costs and the raising of the charge. That decree defined the objects of the suit; and the plaintiff was undoubtedly entitled to have the proceedings revived, in order to give effect to that decree. But her bill of revivor and supplement embraced an object not touched upon in the decree, nor at all connected with any matter which the decree comprehended. She now asserted, that Aberkeddy was no part of Dan y lan. How was that claim connected with any question that had been agitated or determined in the former stages of the suit?

Further, the bill alleged, that a fine had been levied of Aberkeddy and Dan y lan under the denomination of Dan y lan, which rendered it impossible to bring an ejectment. But if this fine was a good legal bar, it must likewise be a good equitable bar; and consequently the plaintiff had no right to come into a court of equity to claim against it.

In reply to the first ground of demurrer, it was contended, that the plaintiff might seek, by her bill of revivor and supplement, any relief which she might have had under her original bill; that the original bill included all the trusts of Mrs. Morris's will; that the plaintiff's title to Aberkeddy arose under that will; that it was therefore open to her to assert that title in the present suit.

With respect to the second objection, it was replied, (and the reply was admitted to be satisfactory), that the plaintiff had only a trust estate, and consequently was entitled to the aid of a court of equity; and further, that what she sought from the defendant who now demurred, was, that this defendant should, as personal representative of Phillips, account for the rents and profits received by him; a relief which could be had nowhere except in equity.

Vice Chancellor.-This is a bill filed by a plaintiff, who, under a will and codicils executed by Mrs. Morris by virtue of a power reserved in her marriage settlement, claims as residuary devisee of the estates comprised in that settlement, and who also claims as the devisee of a sum of 1000l., which was to be raised, not only out of the estates which she herself took as devisee, but out of all the estates comprised in Mrs. Morris's marriage settlement, some of which that lady had devised specifically.

H

Mrs. Morris had made the interests of her devisees equitable interests: the plaintiff, as a devisee of an equitable estate, had a clear right to the assistance of this court; and she called for that assistance by a bill, which prayed the execution of all the trusts of the will and codicils of Mrs. Morris.

After various proceedings had in the suit, the plaintiff files a bill of supplement and revivor, in which she says, " I find, that I have rights under Mrs. Morris's will, of which I was not aware till now. The deceased defendant, Phillips, who claimed an interest in Dan y lan, (one of the estates comprised in my testatrix's marriage settlement, and liable to contribute part of the charge of 1000l., but specifically devised by her), took possession and received the rents and profits of a tenement called Aberkeddy, which he pretended was a part of Dan y lan, though in truth it was not so, but was included in the estates devised to me. I therefore claim, that the real representatives of Phillips shall deliver up to me possession of this particular estate, and account to me for the rents and profits of it, which they have received, and that his personal representative may answer, out of Phillips's assets, what is due to me in respect of rents and profits taken by Phillips himself."

If the case stood simply so, the bill of revivor and supplement would be only furthering the object of the original bill. But it is said, that, although this might have been proper, according to the original frame of the suit, yet the plaintiff has so prosecuted it, as to narrow her right; for neither at the first hearing of the cause, nor when it came on upon further directions, did she pray any assistance from the court with respect to the estates of which she was residuary devisee. She was satisfied with a decree, which gave her the right only to call upon the estates, of which she was not devisee, to contribute to raise the charge of 1000l.; she thus altered the character of the suit, and she cannot again extend it to the execution of all the trusts of Mrs. Harris's will.

I am not satisfied by that argument. If the trustees, with the consent of the other devisees, put this lady into possession of the estates to which she was equitably settled, she wanted no assistance from this

court; she probably was in possession, and being in undisputed possession, did not think it necessary to take any directions on this subject in the decree. But that can never alter the character of the suit, nor deprive her of the right, when in the course of it she finds that she has not been in possession of all the estates devised to her, to bring the additional matter by way of supplement before the court. If the other devisees had resisted her title to the devised premises generally, the decree in the original cause must have extended to the devised estates; and in that case, it is admitted, that she might have brought this further charge against Phillips. Can she be placed in a worse situation, because the trustees and other devisees allowed her to enjoy, as she believed, all the premises which had been devised to her?

Considering, therefore, this suit as instituted for the execution of the trusts of Mrs. Morris's will, and the plaintiff's title to Aberkeddy, as a matter included in the execution of those trusts, I cannot sustain this bill of revivor and supplement. Demurrer over-ruled.

}

1823. Nov. 18. S

that he has no right to be admitted a partner at any time, unless his conduct is such as to render him not unfit for the situation.

The testator gave to his trustees and executors a sum of 33,3331. 6s. Sd. 3 per cent: consuls, bank annuities upon trust, to pay to his widow an annuity of 1000l. a-year during her life; then, immediately after his death, upon trust, that they should transfer to the testator's nephew, William Forbes Stuart, one moiety of the said sum of 33,3331. 6s. 8d. stocks; and upon further trust, as to the sum of 16,6661. 13s. 4d. the other part and remainder of the said sum of 33,3331. 6s. 8d. bank annuities, that his trustees and executors should stand possessed thereof, upon trust, for his nephew Donald Gordon, until he should have attained his age of 25 years; and the testator directed his said executors and trustees, and the survivor of them, to transfer the same to Donald Gordon for his own use and benefit, when and as soon as they should in their discretion think proper; and in case Donald Gordon should die without lawful issue, before receiving the bequest, the said sum of 16,666l. 13s. 4d. was to sink into and become part of the residue of the testator's estate. Afterwards the testator, in the event of the death of William Forbes Stuart without issue, devised certain freehold premises to trustees, upon trust, to apply the profits thereof to the use of Donald Gordon, until he should attain his age of 21 years, and afterwards to him in fee. He then ordered the trade, in which he was concerned, to be carried on after his decease, by William Forbes Stuart, with a capital of 10,000l. out of the personal estate, or such other capital as might be sufficient for that purpose; and continued in the following words: "I direct and request, that the said William Forbes Stuart do and shall take under his care and protection, and educate and support the said Donald Gordon, until he shall have attained a proper age to be bound apprentice; and when, and so soon as he shall have attained that age, then I direct, that the said William Forbes Stuart shall bind the said Donald Gordon apprentice to himself; and from and after the said apprenticeship shall have expired, or so soon after as the said William Forbes Stuart shall in his judgment think the said Donald Gordon

fit and capable, he the said William Forbes, shall take the said Donald Gordon into the said trade and business, as a co-partner therein, and that the said Donald Gordon, shall have one-third part or share of the profits of the said business with the said William Forbes Stuart; it being my particular will and desire, that the said trade and business shall be always carried on in the name, or under the firm of James Stuart and Co., and no other." The residue of the personal estate was bequeathed to William Forbes Stuart. Donald Gordon was about 12 years of age at the filing of the bill.

The first question was, whether, from the death of the tenant for life, till Donald Gordon attained the age of 25 years, the interest of that moiety of the stock which was bequeathed to him, belonged to him. Mr. Wingfield and Mr. Roupell were for the plaintiff, Donald Gordon.

Mr. Shadwell and Mr. Barber for the residuary legatee.

For the defendant were cited.
Palmer v. Mason, 1 Atkins, 505.
Herle v. Greenbank, 3 Atkins, 697, 718.
Mackell v. Winter, 3 Vesey, 536.

Master of the Rolls.-In considering this case, three views of it present themselves. First, Is the interest of this portion of the testator's property, during the minority of this infant, to go immediately to the infant? Secondly,-Is it to go immediately to the residuary legatee? Thirdly,-Is the determination of the right to the interest to be suspended, till it is finally seen what the event may be with respect to the legacy itself?

In the first place, I do not think that this case can be decided on authority. The words employed here, are very different from those which are commonly used in wills. The only use of authorities in such a case, is to furnish us with general principles, which we may take along with us in considering the whole frame of the will. This is a case of a legacy, clearly not vested. The testator constitutes a capital composed of stock, yielding a precise revenue of 1000l. a year; and he directs this annual revenue to be paid to his widow. After her death he divides the stock; giving one moiety of it to William Forbes