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1. Effect of Recital in a Contract.] A testator directed his trustees to raise a sum of money, the income of which would produce a clear income of 1007. per annum, and to invest it upon government or real securities, and pay an annuity of 100% to a legatee; and he directed them to stand possessed of the fund so raised, and the securities on which it should be invested, but subject to and charged with the annuity, on the same trusts as the residue; and he directed that if the income of the trust fund should, from any cause or circumstance whatever, prove insufficient to answer the annuity, the deficiency should be made good out of the residue. The trustees invested a sum of 3,500l. on a mortgage, at 51. per cent.; and the annuitant, who was one of the trustees, assigned the annuity to a purchaser, by a deed reciting that the 3,500l. was appropriated to answer it. He afterwards was permitted by his cotrustees to call it in, and to misapply it:

Held, first, that the recital in the assignment precluded the purchaser of the annuity from being heard to say that there had not been an effectual appropriation of a fund to answer it. Secondly, that the provision in the will as to the insufficiency of the fund, did not apply to the case. Thirdly, that although the legatee of the annuity was only one of the trustees of the will, the purchaser from him could take no part of the assets till his defalcation was made good. Fourthly, that on all these grounds, the purchaser of the annuity had no claim upon the residue. Barnett v. Sheffield, 150.

2. Apportionment.] An annuity bequeathed by will, and directed to be paid out of a moiety of the rents, issues, profits, dividends, interest, and proceeds of the real and personal estate of the testator, after the expiration of a life-interest therein: Held not to be primarily payable out of the personal estate of the testator, but to be apportionable between the real and personal estates. Falkner v. Grace, 213.

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3. Out of what fund.] A testator, by his will, directed his executors to get in his personal estate, and to invest a sufficient portion thereof in the public funds to produce an income of 21. a week, to be paid by his executors to his eldest son J. for his life, such annuity to be in har and satisfaction of all claim and title to the testator's real and personal estate; and after the decease of the testator's said son J., the sum so invested was to fall into and become part of the residue of the testator's personal estate. The testator then gave certain freehold and leasehold estates in specific portions amongst his other children, and directed that as soon as the youngest of such children should attain the age of twenty-one years, the executors should divide

Chancery.

the residue of his personal estate amongst all his children, except his son J., equally, and, finally, the testator directed that, in like manner, upon the decease of J., the sum to be invested to produce and pay his annuity of 21. a week should be divided amongst the testator's other children who should be then living, or the issue of such of them as might be dead, share and share alike. The whole of the testator's residuary personal estate was insufficient when invested, to produce an income equivalent to the annuity given to his son J.:

Held, that the annuitant was entitled to have the deficiency supplied by sale from time to time of part of the corpus of the fund invested to meet the annuity. Wright v. Callender, 337.

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1. Authority to institute Suit.] A, who was an equitable mortgagee by deposit of deeds of property belonging to the estate of B, was paid off by C, on an agreement with the executors of B, (as their solicitor stated,) that proceedings should be taken in A's name to enforce the mortgage security, and thereby to effect a sale of the whole or part of the mortgaged property, and the solicitor of the executors filed a claim for foreclosure in the name of A against the representatives of B. A denied that he

Chancery.

had given authority to file the claim in his name, and moved that it might be taken off the file:

Held, that there being only assertion against assertion, and the solicitor alone stating that the instructions were given in the presence of A, the case was to be governed by Allen v. Bone, and the claim was dismissed, with costs, to be paid by the solicitor. Crossley v. Crowther, 245.

2. Legal Remedy.] Held, also, that, in such a case, the court could not adjudicate between the solicitor, by whom the claim was filed, and the defendants, the representatives of B, by whom the instructions were given to file the claim in A's name: and the court left the solicitor to any legal remedy he might have against such parties. Ib.

3. Liability of Partners.] Three unmarried women, trustees of a fund of stock, unlawfully associated their solicitor, A, who was partner in a firm of A & B, as a trustee with them. The four together unlawfully sold out the stock for the purpose of investing it on mortgage in the name of A alone. The money was paid to the bankers of the firm to the credit of the partnership account, and the trustees consented to and adopted an investment of a sum of the same amount shortly afterwards made by A in his sole name, and a declaration of trust thereof was subsequently executed by A. In course of time this security was realized, and the money was received by A and not reinvested. The partnership was dissolved; A became bankrupt, and it was then first discovered that the money was not invested. Within six years after A's bankruptcy, the three women, who had married after the stock was sold out, concurred with their husbands in filing a bill to recover the fund from B, which was dismissed, with costs, it being held, that the money was for a time in the hands of the partnership only for the purpose of being invested in the name of A, and that having been done, their professional duty was discharged; and that the money had been lost ultimately by a breach of trust of A and not a breach of his duty as solicitor. Coomer v. Bromley, 307.

4. Purchase of Client.] Bill by an attorney against his client for specific performance of a contract of sale- the attorney having bought at an auction, and having been professionally employed in the sale dismissed, with costs, affirming the decision below. Cutts v. Salmon, 316.

Sales at auction on behalf of infants too great a sacrifice of the estate.

AUCTION.

ought to be with a reserved bidding, to prevent Ld. Chancellor. Cutts ▾ Salmon, 316.

See PRINCIPAL AND AGENT.

BANKRUPTCY.

Assignees, Rights of] One of four joint tenants of a sum of 2,000, subject to a life estate in M. B., married J. L. Afterwards J. L. became bankrupt; then the wife died; then M. B. died:

Held, that the surviving joint tenants were entitled, in preference to the assignees in bankruptcy of J. L. Barton's Trust, in re, 323.

BEQUEST.

See LEGACY.

BONDS.

Rights of Bond Creditors.] By a deed of composition with creditors, it was provided that the creditors should be paid out of the property ratably, and without preference, and that any creditor holding a mortgage security might be paid the amount of his debt and interest:

Chancery.

Held, that this deed did not render the simple contract debts specialty, and that bond creditors were not entitled to more than the penalty of the bond. Clowes v. Waters, 326.

Discharge of, by subsequent Agreement.]

See PRINCIPAL AND SURETY.

BURDEN OF PROOF.

See DEED.

CASES EXAMINED, OBSERVED UPON, DOUBTED, &c.

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Blakely v. Brady, 2 Drury & Walsh, 311, followed,.
Boughton v. Boughton, 1 H. L. Cas. 406, distinguished,
Brewster v. Clarke, 2 Mer. 75, followed,

Cadogan v. Sloane, Sugd. V. & P. 1119, commented upon,
Carter v. Taggart, 9 Eng. Rep. 167, commented upon,
Donne v. Hart, 2 Russ. & Mylne, 360, approved,

Edwards v. Jones, 1 Mylne & Craig, 266, commented upon,
Ellison v. Ellison, 6 Ves. 656, commented upon,
Forbes v. Peacock, 11 Sim. 153, commented upon,
Fortescue v. Barnet, 3 Mylne & Keen, 36, followed,
Gage v. Acton, 1 Salk. 325, commented upon,
Grove v. Bastard, 2 Phillips, 619, observed upon,
Haldenby v. Spofforth, 1 Beavan, 395, considered,
Henry v. Smith, 2 D. & W. 381, approved,

120

215

296

129

350

268

130

127

368

120

278

76

364

190

Hughes v. Wynne, 1 My. & K. 20, approved,

Hunter v. Nockolds, 1 Mac. & Gord. 654, followed,

330

190

Motteux v. London Assurance Co., 1 Atk. 545, approved,

Johnson v. Kennett, 6 Sim., examined,

Midland Co. Railway Co. v. Westcomb, 11 Sim. 57, as to costs, not followed,

Milbourn v. Ewart, 5 Term R. 381, commented upon,

Mills v. Banks, 3 P. Wms. 1, considered,

Napier v. Napier, 1 Dru. & War. 416, commented upon,

Page v. Adam, 4 Beavan, 269, examined,

Philanthropic Society v. Kemp, 4 Beavan, 581, observed upon,

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Richards, ex parte, 1 J. & W. 264, doubted, but followed,
Sturge v. Dimsdale, 6 Beavan, 462, observed upon,

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170

68

Upfill's case, 2 H. L. C. 674; Eng. Rep. 13, commented upon,
Watkins v. Cheek, 2 Sim. & Stu. 199, examined,

261

366 120

Wheatley v. Purr, 1 Keen, 551, followed,

CHARITABLE LEGACIES.

1. Payment of] A testator bequeathed to the treasurer for the time being of the General Infirmary at Leeds, the sum of 10,000l. to be raised and paid out of such part of his ready money, goods, and personal effects as he could by law charge with the payment of the same; and he made other charitable bequests in similar terms, besides a number of bequests to individuals, given generally, and not made payable out of any particular portion of his property. The testator's estate consisted partly of pure personalty and partly of personalty savoring of realty, the latter being more than sufficient for the payment of the general legacies:

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Held, (reversing a decision of the Vice-Chancellor, Knight Bruce, by which the charity legacies were directed to abate in the proportion which the personal estate savoring of realty bore to the whole personal estate, and without reference to the ques‐ tion of what was the precise character to be attributed to the charity legacies, but having regard only to the intention of the testator, to be gathered from the will,) that the general legacies ought to be paid out of the personalty savoring of realty, so as to leave the pure personalty for the payment of the charity legacies. Robinson v. Geldard, 63.

2. Statute of Mortmain.] Held, also, though not as the ground of the decision, that in the present case the charity legacies were analogous to and had the same incidents as demonstrative legacies to individuals, except so far as regarded the right of satisfaction out of other assets than the fund out of which they were directed to be paid, a right from which they were debarred by the Stat. 9 Geo. 2, c. 36. Ib.

3. The cases of The Philanthropic Society v. Kemp, (4 Beav. 581,) and Sturge v. Dimsdale, (6 Beav. 462,) observed upon. 1b.

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1. The rights of the parties interested in the proceeds of the sale of land situated out of

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