1847. ROBINSON

v.

BELL.

case, that the personal estate was not represented at all. does not apply here, where the only question is as to the sufficiency of the representation.-[The Vice-Chancellor.— Is protection afforded to the real estate by such a repre sentation as this?]-It enables the real representative to recover what he has paid from the complete personal representative, when assets are obtained which enable any one to take out a complete administration. If the contention on the other side could be maintained, it would follow, that where there had been a succession of administrations, no decree could be made unless there were a complete personal representative of every successive administrator before the Court. Such a rule would be an absolute denial of justice in many cases. The Eccle siastical Court will not grant complete administration o a statement that there are no assets, which is the substance of the plaintiff's case here. A creditor has a right, in such a case, to have the real estate applied, and equity, in giv ing effect to that right, affords the persons interested in the real estate, the utmost protection consistent with convenience. This is accomplished by there being before the Court a party having the authority conferred by the letters of administration, which are conclusive until they are recalled. [They also cited Aitkin v. Ford (a), and Carthorn v. Chalie (b).]

Mr. Wigram, in reply. The proposition cited from Lord Redesdale is altogether unsupported by authority.—[The Vice-Chancellor.-His own authority is very considerable] But not a single instance can be produced in which this doctrine has been acted upon. No instance can be found of a decree for the administration of real assets without a direction to take the accounts of the personal estate, where that estate is primarily applicable. The whole case of the plaintiffs rests entirely on an unsupported statement in a (a) 3 Hagg. Eccl. R. 194, note (a). (b) 2 S. & S. 129.

text book, which has never been adopted in practice, and is inconsistent with the well-known and ordinary forms of the decrees of the Court, besides being unsupported by principle.

The VICE-CHANCELLOR :

In this case, a creditor seeks to have applied, in payment of his debt, the real assets of a deceased debtor, named Alexander Tiplady. The plaintiff's debt or demand is thus constituted:-It is not a legal debt or demand, but is purely equitable. It is a debt claimed in respect of the plaintiffs being beneficially entitled to any advantage which may be derived from a covenant into which the testator entered with Mr. Bryan Robinson, whose personal representative is Mrs. Jane Robinson, a defendant to the suit.

The testator, Alexander Tiplady, appointed his widow his sole executrix, and died many years ago. She proved the will, and has since died intestate. Of her, there is no legal personal representative, and of the testator there is not any legal personal representative, except such a representative as is constituted by the letters of administration now before the Court, which are letters of administration granted to a person in whom the legal right to sue upon the covenant is vested, and who, therefore, I should have thought, could on that ground have obtained general letters of administration. I am, however, not clear upon that point, and give no opinion upon it.

There is the further fact, that the plaintiffs, who are equitably entitled to sue on the covenant, are the next of kin, or two of the next of kin, of the deceased executrix.

Now it is proper to consider the meaning of the passage cited from Lord Redesdale. [His Honor read the passage referred to in the argument.] Undoubtedly, there may be cases to which that observation would apply in a practical manner. But this is not such a case; for the plaintiffs

1847.

ROBINSON

V.

BELL.

1847.

ROBINSON

V.

BELL.

here are two of the next of kin of the deceased executrix, who was the sole residuary legatee, and was also, in equity, a creditor of the deceased testator.

What I should have thought it right to do, if I had been satisfied that the plaintiffs could not obtain general letters of administration, it is not necessary for me to say; for this case comes before me in a form in which I think myself bound to say, that the plaintiffs could have obtained, and can now obtain, general administration de bonis non of the testator; and this being so, I think that I ought to accede to the objection, especially considering the recent authorities in another branch of the Court, which have been cited in the argument.

The case stood over, with liberty to amend the bill, and the costs were reserved.

The suit was afterwards compromised.

Nov. 13th.

Where a testator devised

tees, their heirs
and assigns,
on certain

trusts, and the

tee devised the trust estates

OCKLESTON V. HEAP.

WILLIAM FAIRHURST, by his will, dated the 22nd

estates to trus- of February, 1839, appointed his son-in-law George Law, and his friend Edward Tilston, his co-executors and trustees, and gave, devised, and bequeathed all his real surviving trus- and personal estate and effects, subject to certain bequests therein before made, unto and to the use of his said trustees, upon the same their heirs, executors, administrators, and assigns, according to the nature and tenure thereof, upon trust, as to such part thereof as he held in mortgage or trust, or subject to any equity, to carry into effect the trusts thereof; and as to the residue of his said real and personal estate,

trusts on which

he held the same, Held, that the cestuis que trustent

were entitled

to have new

trustees appointed of the original will.

to sell and dispose thereof, at their discretion; and he declared, that the purchasers of his said estate should not be bound to see to the application of the purchase money,

and "that the receipts of my trustees, or the survivor,
shall be in all cases sufficient" (a); and as to the proceeds
of his said estate, the testator gave and devised the same
unto and equally amongst his three daughters, with limi-
tations over in favour of their husbands and children.

The will contained no power to appoint new trustees.
The testator died on the 1st of March, 1839.

On the 3rd of May, 1839, George Law alone duly proved the will.

Edward Tilston, by a deed poll, under his hand and seal, bearing date the 25th of the same month of June, 1839, duly renounced the executorship of the will, and disclaimed the trusts thereby declared, and all estate, right, title, and interest bequeathed to him by the will.

George Law, by his will, dated the 14th of February, 1847, gave, devised, and bequeathed all mortgages in fee and trust estates, which might be vested in him at the time of his decease, unto and to the use of Samuel Taylor and Joshua Heap, their heirs, executors, administrators, and assigns, upon the trusts, and subject to the equities affecting the same respectively, to the intent that the same might be disposed of as the rules of law and equity might require; and he appointed Samuel Taylor and Joshua Heap, together with his wife, his executors and executrix.

George Law died on the 4th of February, 1847, and his will was proved on the 29th of March, 1847, by Joshua Heap alone.

The suit was instituted by parties beneficially entitled, under the will of William Fairhurst, against Samuel Taylor, Joshua Heap, and Amelia Law, and prayed that it might be referred to the Master, to appoint three or some other number of fit and proper persons, to be trustees, under that will, in the place and stead of George

VOL. I.

(a) These were the words of the will.

*U U

D. G. S.

1847. OCKLESTON

v.

HEAP.