1847. JOHNSON v. KERSHAW. In the course of the argument his Honor referred to De Burnales v. Fuller (a). In support of plaintiffs' case, the evidence of Mr. Peet, an accountant, was tendered, containing a statement of the result of his examination, made in May, 1844, of certain account books of the partnership, between G. Wood and his deceased partner, Wales; but the account books on which he made his statement were not in evidence. If the account books had been in evidence, the accountant's statement of the result of his examination of those books, as the evidence of a person of skill, might be receivable; but, inasmuch as the books are not in evidence, I must decline to receive the deposition of Mr. Peet as to their contents, or as to the result of his examination of their contents. Mr. Wigram, in reply. The VICE-CHANCELLOR : Whatever may be the general rule, if there be any general rule, as to indulgence to a creditor under a compositiondeed, who does not claim the benefit of the deed within the time specified in the deed, that rule does not apply to a creditor who actively refuses, (if I may use the expression), to come in under or assent to the deed within the time limited, and who does not retract the refusal within that time; and I think that, upon the evidence in this suit, it is a correct conclusion to say that the plaintiffs have so conducted themselves in the present case. It appears to me that negotiations were opened which ended in a proposal by Mr. R. H. Wood, not based on an (a) 14 East, 590, n.; 2 Camp. 426. idea that the plaintiffs were to claim under the deed of March, or on the footing of the two deeds of March and April, but on the footing of the plaintiffs having a new and particular right created, as they appear to have supposed, by the deed of April; not a right to treat the trustees as having committed a breach of trust by their assignment to Mr. R. H. Wood, but a right to claim to be paid in full by Mr. R. H. Wood. If this be the true result of the evidence, and if the suit is not so constituted, and the case is not of such a nature as to entitle the plaintiffs to the benefit of the proposal made by Mr. R. H. Wood in June, 1844, as a binding agreement, the bill must be dismissed, and, as against Mr. G. Wood, with costs. Mr. R. H. Wood declining at the bar to pay the £250, the bill must be dismissed as against him, without costs. As to the trustees, their acts having been such as might confuse and mislead parties interested, the bill as against them must be dismissed, without costs. As to all the defendants, the bill is to be dismissed without prejudice to any other suit the plaintiffs may be advised to institute. 1847. JOHNSON v. KERSHAW. 1847. April 30th & A will contain- realty, in trust for A. for life, remainder to B. his wife, for life, and, after survivor, to sell and divide the shares were to DREW v. KILLICK. ELIZABETH ELCOCK, by her will, dated the 8th of June, 1835, gave and devised as follows: "I give, devise, and appoint unto George Drew, Thomas Hadden, and Joseph Gideon Slons, all those my freehold messuages or the death of the tenements and premises situate in King Street and John Street, Bermondsey New Road, Bermondsey, in the county proceeds equal- of Surrey, to hold the said messuages or tenements, ly among the children, whose ground and hereditaments, unto and to the use of them the said George Drew, Thomas Hadden, and Joseph twenty-one for Gideon Slons, their heirs and assigns for ever; but upon the trusts, and for the intents and purposes, and subject to daughters, with the directions hereinafter mentioned, expressed, and dea proviso post-clared, of and concerning the same, (that is to say) upon trust that they the said George Drew, Thomas Hadden, and Joseph Gideon Slons, and the survivors and survivor of them, and the heirs and assigns of such survivor, do and shall pay unto, or empower or permit and suffer my be vested at sons, and twenty-one or marriage for poning pay ment in the event of any shares vesting in the lifetime of either tenant for life. The will also con of stock, in trust to pay the dividends to A. for life, and, on his death, to divide the principal among his tained a bequest nephew, William Killick of Camberwell, during his life to receive and take the rents, issues, and profits of my said messuages, tenements, ground and premises at Bermondsey aforesaid, to and for his own use and benefit; and from and after the decease of my nephew William Killick, upon trust that they the said George Drew, Thomas Hadden, and Joseph Gideon Slons, or the survivors or survivor of them, or the heirs or assigns of such survivor, do and shall pay unto, or empower, permit, and suffer Rebecca, the wife of my said nephew William Killick, (in case she should survive children equal ly, the shares to vest at the same times as were before provided as to the proceeds of the realty; and there was a proviso, that, in the event of there being no child of A. and B., or all the children dying before twenty-one, or, if daughters, before that age or marriage, the proceeds of the realty and the sum of stock should be divided equally among the members of a defined class of persons who should be living at the death of the survivor of A. and B., or A.'s children or child, as according to the trusts therein before declared the case might require:-Held, that the last of these clauses must be read distributively, and that it did not give to B. by implication a life-interest in the stock. her said husband), to receive and take the rents, issues, and profits of my said messuages, tenements, ground, and premises at Bermondsey aforesaid, to and for her own use and benefit during her life; and from and immediately after the decease of the survivor of them my said nephew William Killick and Rebecca his wife, upon trust they the said trustees or trustee for the time being of this my will, do and shall, if he or they shall so think proper, but not otherwise, sell and absolutely dispose of the said messuages or tenements, ground and premises in Bermondsey, either together or in parcels." After the usual directions with respect to the sale, the will proceeded: "and I do hereby further direct and declare, that the trustees or trustee for the time being of this my will, do and shall stand possessed of, and interested in the said monies to arise from such sale of the said premises as aforesaid, and also of the rents, issues, and profits thereof, to be received from and after the decease of the survivor of them my said nephew William Killick and Rebecca his wife, until sale and disposition thereof as aforesaid, upon trust for all and every the children and child of my said nephew William Killick, lawfully to be begotten, equally to be divided between and amongst them, share and share alike, if more than one, and if there shall be but one such child, then the whole for such one child; the share or shares of such of them as shall be a daughter or daughters to become vested in her or them respectively on her or their attaining her or their age or respective ages of twenty-one years, or on the day or respective days of her or their marriage, which shall first happen; and the share or shares of such of them as shall be a son or sons to become vested in him or them respectively on his or their attaining his or their age or respective ages of twenty-one years, and to be paid or transferred at such age or ages, time or times as aforesaid, to such of the said daughters or sons as shall arrive at or attain the same after the decease of the survivor of them the said William 1847. DREW v. KILLICK. 1847. DREW v. KILLICK. Killick and Rebecca his wife; but as to such of them as shall arrive at or attain such age or ages, times or time as aforesaid, in the lifetime of my said nephew or Rebecca his said wife, the payment or transfer of his, her, or their share or shares to be postponed till after the decease of the survivor of them the said William Killick and Rebecca his wife;" and after containing the usual accruer clause, and powers of maintenance and of leasing, the will proceeded as follows: "Also I give and bequeath unto the said George Drew, Thomas Hadden, and Joseph Gideon Slons, the further sum of £1000 Three and a half per cent. Annuities, upon trust that they my said trustees, and the survivors and survivor of them, do and shall immediately after my decease cause the same to be transferred into their names, and do and shall pay the dividends and interest of the said £1000 Three and a half per cent. Annuities, as and when the same shall become due and payable, into the proper hands of my said nephew, William Killick of Camberwell, for and during the term of his natural life, to and for his own use and benefit; and from and immediately after his decease, upon trust that they my said trustees, or the survivors or survivor of them, do and shall pay, transfer, and divide the said principal sum of £1000 Three and a half per cent. Annuities, or the stocks, funds, or securities in which the same shall be then invested, unto all and every the child or children of my said nephew William Killick, equally to be divided between or amongst them, share and share alike, if there shall be more than one, and if there shall be but one such child, then the whole to be paid or transferred to such only child. "And I declare my will to be, that such children or only child of my said nephew William Killick, shall take vested interests in the said £1000 Three and a half per cent. Annuities, at such ages, days, and times, and with such benefit of survivorship and accruer, powers of maintenance and education, and with such limitations and directions as are hereinbefore directed respecting the share of |