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against an agent, unless he charges collusion and misconduct, as between the agent and the principal.
In the argument, some reliance has been placed on collateral allegations,supposed not to be covered by the plea : such as the allegations, that the commissioners were expressly ordered to pay the plaintiff's demand; that they coinmunicated these orders to the defendants; and that the defendants have in their custody various papers and documents, from which the truth of the case made by the bill would appear. The objection, which is only one of form, cannot be maintained; for the plea itself is a denial of these allegations.
the Court could no longer interfere, and that an order upon any of the parties was inconsistent with the order of reference.
To this it was replied, that the application was against the receiver ; and that although to save expense to the estate, the duties of receiver had been intrusted to the defendant, he was not on that account entitled to any privilege or indulgence. He had the balance in his hands only as receiver, and not as party; and the reference had no concern with the duties of the receiver.
Vice-Chancellor was clearly of opinion, that the receiver ought to pay the balances into Court, and that the order of reference was no objection to the present application.
NOBI. V. LORD WALSINGIAM. December
Nov. 13. S Where one of the parties in a cause is 15,0001. being charged upon certain appointed receiver, and afterwards, by lands by way of portions for younger chila consent order, all the matters in dispute in
dren, in equal shares, subject to the apthe cause are referred to arbitration, this pointment of it among them by the father ; order and the pending reference will not be one of the children, in consideration of a any objection to making such application large sum advanced to her in conteniplato the Court, as may be necessary, in order tion of her marriage, by her father, who to compel the party who is receiver, to pay
was the then tenant of the premises, rein to the credit of the cause such sums as
leases to him and his heirs all her interest the Master shall have reported due from
in the lands; this does not operate as an him, in his character of receiver.
extinguishment of her part of the 15,0001., This was a suit relating to partnership
but the father will take that part as a puraccounts, in the progress of which the de- chaser. fendant, who was one of the partners, had The father being entitled, as a purbeen appointed receiver. The reason of his chaser, to dispose of part of the 15,0001., appointment was, that he offered to dis- by his will bequeaths the whole of il to his charge the duties of the office without three daughters, who were not then adremuneration. Before the cause came to a vanced; shortly afterwards one of them, A., henring, an order was made by consent, having married, and having received from referring all the matters in dispute to arbi- him 10,0001., he, by a codicil reciting that tration, but that order had not yet been circumstance, revoked the appointment of acted upon; nor, although a considerable the 15,0001. made by him in his will, so far interval had elapsed, was it as yet drawn only as respected A. and her proportion of up.
the same, and not further : Hell, that the In the mean time, the party, who was two remaining daughters were entitled to receiver, hail, subsequently to the order, the whole 15,0001., and that the codicil passed his accounts in the Master's office, was not merely a revocation of the gift and a considerable balance had been re
to A. ported to be in his hands.
By a settlement made on the marriage Mr. Bickersteth now moved that the of Paul Cobb Methuen, dated the 6th of balance should be paid into court.
April 1776, to which his father, Paul MeMr. Stinton, contrà.
thuen, was a party, considerable estates The objection to the motion was, that were conveyed to certain uses. Among
these uses was a term of 500 years, which amongst the second and other younger sons was limited to two trustees upon trust, in of Paul Cobb Methuen who should attain case there should be two or more children the age of 21, in such shares as their father of the intended marriage, other than an should think expedient. This 20,0001., eldest or only son, to raise by sale or the testator declared, when so paid, was mortgage, or otherwise, the sum of 15,000l. to be accepted by the second and other for the portions of such two or more chil- younger song of Paul Cobb Methuen, in dren, in such shares and proportions as full satisfaction of his and their share of Paul Cobb Methuen, by any writing or the sum of 15,000l. provided for the porwritings under his hand and seal, executed tions of younger children by the aforesaid in the presence of two or inore witnesses, marriage-settlement; which 15,0001. was or by his last will and testament or codicil to be left to be shared amongst the rethereto, executed in the presence of two or maining younger children. more witnesses, might direct and appoint. In Paul Methuen died in 1795. default of appointment, the sum of 15,0001. In May 1904, Matilda, one of the daughwas to be divided equally among them ; ters, intermarried with the Honourable the shares of the sons being payable upon George de Grey, now Lord Walsingham. their attaining respectively the age of 21, Previous to that event, her father, by deed and the shares of the daughters upon their poll, dated the 12th of May, and so exeattaining that age, or being married, which cuted as to be a due execution of the should first happen. With respect to the power in his marriage-settlement, apshares of the daughters, it was further pointed to her 3000l. as her share of the provided, that, if any daughter attained 15,000!. Upon her marriage, he paid that age, or married in the lifetime of Paul 2000l, to the husband, and settled 5000l. Cobb Methuen, her share of the money as her portion ; in consideration of which should thenceforth be deemed a vested in- sums, she and her husbund executed a deed terest, but should not be payable till six poll (which was executed also by Paul months after the decease of Paul Cobb Cobb Methuen), purporting to be an asMethuen, unless he should, by writing signment to Paul Cobb Methuen of the under his hand, otherwise direct, and that sum of 3000l. which had been appointed from his death it was to bear interest at to her, and of all the right and interest of the rate of 4 per cent. per annum.
her husband therein. It was also declared, that if Paul Cobb Ann Christian, another of the five daughMethuen should in his lifetime settle or ters, attained 21, and, in March 1808, died give, unto or for any child or children of intestate. Her father took out letters of the marriage entitled to portions under the administration to her. trusts of the term, any money, lands or By his will, dated the 12th of October goods, towards their advancement in mar- 1909, executed so as to be a valid execuriage, or otherwise, such money, lands and tion both of the power contained in his goods, were to be taken in satisfaction, in marriage-settlement, and of the power whole or in part, of the portions therein- given by his father's will, Paul Cobb Mebefore provided, unless Paul Cobb Me- thuen directed the 20,0001. to be raised out thuen should, by writing under his hand, of the estates on which that will charged signify the contrary.
it; and this sum lie apportioned in shares The marriage took place shortly after- of 10001., 90061, and 10,0001., among wards. There were issue of it, nine chil- his three younger sons respectively. He dren-four sons and five daughters. then directed, that, "in further performance
Paul Methuen (the grandfather of these of the will of Paul Methuen, the sum of children), by his last will, dated the 10th 15,000l., provided by his own marriageof April 1793, empowered and directed settlement to be raised and paid unto his his devisees in trust, upon the request or younger children, should be paid to his consent of Paul Cobb Methuen, by deed daughters only, (except to his eldest daughor will, and not otherwise, to sell and dis- ter, Matilda, the wife of Lord Walsingpose of certain real estates, and out of the ham, to whom, upon her marriage, he had purchase-money to pay 20,0001. to and paid 70001. in lieu of any share she might have been entitled to in the 15,0001.), in daughters, Catherine Matilda, and Cecilia equal shares and proportions, and in such Penelope, afterwards married. In 1818, manner, and with such benefit of survivor- after the marriage of Catherine with Mr. ship and accruer, as the same was directed Plumptre, a deed was executed, to which by the settlement to be paid to his younger the brother, Paul Methuen, was a party, child or children."
and in which the moiety of the 15,0001. Another sum of 6000l. was bequeathed was treated as being the ascertained proamong his daughters in similar words. perty of Catherine, and of her husband in
By a deed poll, dated the 15th of June her right. Subsequently, however, various 1813, Thomas Anthony Methuen, the se- doubts arose with respect to the rights in cond son, in consideration of a sum of that sum of money acquired by the several money paid to him, released to Paul Cobb
younger children of Paul Cobb Methuen Methuen, and his heirs, all his right and under the deeds, wills, and codicils which interest in the premises charged with the had dealt with it. To ascertain these payment of his portion as a younger son. rights, the bill was filed by Cecilia Pene
In June 1815, a marriage being in con- lope, and revived by her and her husband, templation between Lord Edward O'Brien Mr. Noel, against the proper parties. and Gertrude Grace, another of the daugh- The prayer of it was, that the trustees of ters, her father agreed to give her 10,0001. the term might be ordered to raise the sum as her portion. In performance of this ar- of 15,000l, by sale or mortgage, and that rangement, she, by a deed poll, dated the
the plaintiffs might be decreed to be enti1st of March 1815, released to him and tled to the moiety of that sum, with inhis heirs all her right, title and interest, terest, at 4 per cent. from the time of the in the hereditaments charged with her decease of Paul Cobb Methuen. portion as one of his younger children. The defendant, Paul Methuen, the broThe marriage between her and Lord Ed- ther, insisted by his answer, that in conseward O'Brien took place shortly after- quence of the release from Gertrude Grace wards; and the 10,000l. was paid.
(afterwards Lady Edward O'Brien), and On the Jst of April 1815, and prior to the revocation by the codicil of the bethe solemnization of the marriage, Paul quest to her contained in the will, Mrs. Cobb Methuen made a codicil to his will, Plumptre and Mrs. Noel were entitled only so executed and attested as to be in pur- to two-third parts of the 30001. which had suance of his power; and by that codicil
, been appointed to Lady Walsingham, (the (after mentioning the intended marriage, other third part belonging to Paul Cobb and reciting, that in contemplation of it Methuen's personal estate,) and also to he had paid 10,0001. to Gertrude Grace, her equal third parts of the remaining or to her benefit, as a marriage portion), 12,0001.* the testator, " in consideration of such pro- Mr. Horne, was for the plaintiff : vision so made for his said daughter, Ger- Mr. Sugden and Mr. Spurrier, for Paul trude Grace, did thereby revoke and annul
Methuen, the brother: such direction and appointment so by him Sir Giffin Wilson, for an infant who before maile, as in or by his said will or was interested in the estates charged with otherwise, with respect to the several sums the portions, and for whom it was conof 15,000l. and 60001., so far only as re- tended, that the releases of Thomas Anspected his daughter, Gertrude Grace, and thony Methuen and Lady Edward O'Brien, her share or proportion of the same re- operated to extinguish their shares of the spectively, but not further, or otherwise 15,0001. with respect to his said daughters, except The questions discussed in the arguMatilda de Grey."
ment were, Paul Cobb Methuen died in 1816, leav- Whether any and what part of the ing, besides the two married daughters, 15,000l. was extinguished for the benefit other two who were unmarried. His eldest of the estate ? son, Paul Methuen, who was also his resi
* It was also insisted, that a sum of 2,4001. duary legatee, took out administration with
ought to be deducted from this 12,000l. ; but that the will annexed. The two unmarried point was not contended for in argument.
Whether Paul Cobb Methuen acquired will, or that the other two daughters should by purchase any part of the 15,0001. take the whole 15,0001.:-whether, in fact,
Whether the effect of his codicil upon the codicil was merely a revocation of the his will was to revoke the bequest to Lady bequest to Lady Edward O'Brien, or wheEdward O'Brien, and leave her third part ther it was the testator's intention, that the undisposed of, or to give the whole of the whole of the 15,000l. should go to Mrs. 15,000l. to the two other daughters ? Plumptre and Mrs. Noel? Upon comparing
The principal cases cited were, Folkes y. the words of the codicil with those of the Western, * and Pitts v. Jackson. +
will, and giving full effect to both, it apVice Chancellor.-My opinion is, that pears to me, that it was not the intention these two ladies are entitled to have this of Paul Cobb Methuen to die intestate with sum of 15,000l. divided between them, and respect to any part of the 15,000l., and that a declaration to that effect must be that the true construction is, that the whole * made. This conclusion does not depend of that sum goes to Mrs. Plumptre and on a single point.
Mrs. Noel The first question made is, with regard With respect to the judgment of Sir to Lady Walsingham's portion--whether William Grant in Folkes y. Western, which her father was to be considered as a pur- in the argument Counsel endeavoured to chaser of it. It is clear, from the instru- impeach so far as it related to the point of ments, that he was intended to be so ; and a father acquiring or not acquiring as a purmy opinion is, that he was a purchaser of chaser, a right to, or an interest in, the that sum of 3000l.
portions of younger children ; upon that The next question regards the portion point I concur entirely with that judgment. of Lady Edward O'Brien. Upon her mar- I have entertained doubts with respect to riage her father gave her 10,000l. ; and another point in that judgment, viz. wheshe executed an instrument, which was in ther, as the power of appointment was given form a release of her interest under her to the husband and wife, and the survivors marriage-settlement. On the whole, my of them, and the wife in that case survived opinion is, that this transaction amounted the husband, the husband could, by any act to an assignment of her portion to him, of his, defeat the wife's power of appointand that he thereby acquired a right to the ment,and cause the only other younger child disposition of that sum of 3000).
of the marriage (exclusive of the advanced By his will made before Lady Edward daughter), to take the whole fund, O'Brien's marriage, Paul Cobb Methuen gave the 15,000l. equally amongst all his daughters, except Lady Walsingham. His
1824. intention then was, that Lady Edward
Nov. 13. should take her one-third part of that sum; for, exclusive of Lady Walsingham, Specific performance. --Indemnity.--there were three other daughters then
Costs. living. Lady Edward O'Brien having mar
Executors sell by auction, in nine lots, ried subsequently, having been advanced sundry houses, which the testator during by him, and having assigned to him her his life, held by lease under the Crown, and share of the portion provided by his settle- of which they, after his death, obtained a ment, he alters the arrangement which he new lease, subject to one entire rent of 243l.; bad made; and this he does by a codicil,
the printed particulars mention that the on the construction of which, in reference sale is by executors, and that the nine lots to the bequests in the will, the most diffi
are all held under one lease, and at one encult question in the cause turns. For upon
tire reserved rent: Decreed, upon a bill that codicil a doubt arises, whether he filed by the vendors, and an answer, submitmeant merely that Lady Edward O'Brien ting to perform the contract upon an indemshould not take the 5000l. given her by the nity being given,-that the purchaser of one
lot, with respect to which the particulars * 9 Vesey, 456.
stated that the apportioned rent for it was + 2 Bro, C. C. 56. 521., was entitled to have an indemnity
WEST V. WILD.
the executors against his liability for the for the payment of the remainder of the whole reserved rent, and the breach of any purchase-money. of the covenants in the original lease.
Afterwards, when the draft of the lease In such a case the defendant is entitled from the executors to him was prepared, to have his costs, up to and including the two difficulties arose. The purchaser obhearing.
jected in the first place, that what he had Sir Elijah Impey having been, at the bought was to be subject only to an apportime of his death, possessed of a lease from tioned rent of 521.; and therefore, inasmuch the crown, of sundry houses for a term as the crown might come upon the lessee of of years, which would expire in the month that part of the premises, for the entire of February 1815, his executors, Mr. West reserved rent of 2431, 13s., that he was entiand Mr. Lichfield, applied to the crown tled to have an indemnity from the vendors to grant a new lease of the premises. Ac- against this liability. In the second place, cordingly by an indenture dated the 24th he said that he would be liable to eviction, of August 1810, and made between his late if any of the covenants in the original lease Najesty of the one part, and Mr. West and were broken, and therefore that he was Mr. Lichfield (who were therein described entitled to have a covenant or an indemas the executors of Sir E. Impey,) of the nity against the breach of these covenants other part ; his Majesty demised to West · by the original lessees. The executors reand Lichfield, their executors, administra- fused to comply with either of these detors and assigns, the messuages therein mands. They offered to enter into a covedescribed, to hold the same, from the 27th nant for the payment of the rent reserved day of February 1815, when a former lease by the crown ; but more than that they thereof would expire, for the term of 225 would not give. days and 52 years, at a yearly rent (during In the course of the correspondence on the 59 years), of 2681. 13s. This lease the subject, Mr. Wild offered to ! recede contained the usual covenants on the part from his demand, if they would make an of the lessees; and upon breach of any of abatement in the price. "I must indulge a covenants, the crown might re-enter and hope," said he, in a letter addressed to the determine the estate of the lessee.
executors, you will make me that West and Lichfield subsequently re- liberal deduction from the amount, (i. e. of assigned one of the houses to the crown ; the purchase-money), that will satisfy me and the rent of 2681. 13s. was thereupon with a common covenant, and enable me reduced to 2431. 13s.
to give a suitable indemnity to any person In November 1821, the executors sold who may succeed me on the premises." these leasehold premises by public auction, The bill was filed by Mr. West, the surin nine lots. In the printed particulars the viving executor of Sir Elijah Impey, for a sale was stated to be by order of the exe- specific performance of the contract. cutors of Sir Elijah Impey; and the nine The defendant, by his answer, stated, lots were described as held under one lease that he was, and always had been, ready from the crown, at a rent of 2431. 13s. per and willing to perform the contract, on annum. Lot 4 was stated to consist of two having a good and sufficient security from houses; and the description of this lot in the plaintiff to indemnify him in case of his the particulars concluded with these words : eviction from the premises, by reason of “ The apportioned rent for these houses per any breach of the covenants in the original annum, 521.” One of the conditions of sale lease, and in case also of his being obliged provided, that the purchasers, on pay. to pay more of the entire rent reserved ment of their purchase-money respectively, to the crown, than the sum of 521. “ should have leases of their respective Mr. Lorat, was for the plaintiff : lots, at their own expense, from the ex- Mr. Horne, for the defendant. ecutors, with tlie like covenants and condi- The plaintiff contended, that he was not tions contained in the original lease." liable to be called upon for an indemnity,
At the sale, James Wild was declared the because all that he had done was in his purchaser of lot 4, at the price of 1255l., character of executor. It was only as exepaid the deposit, and signed an agreement cutor that he had any estate or interest in