KNATCH- V. giving divers specific and pecuniary legacies, bequeathed the residue of his personal estate to the defendants, his executrix FEARNHEAD. and executors, upon trust, to be divided among all his children, except his eldest son; and that they had paid all the legacies, and, many years ago (1), paid and divided the residue of the personal estate among the residuary legatees; and that they had not any fund out of which to answer any demand which might be established by the plaintiffs against his estate. The same defendants by their answer also stated, that they were wholly ignorant of the existence of any such trust as in the bill alleged until the year 1830. [ *124 ] By the Master's report, made in pursuance of the decree pronounced at the hearing of the cause, it was, among other things, found that a sum of 1,6127. 16s., (being part of the trust fund,) which in the year 1802 had been invested in the purchase of 2,3931. 15s. 4d. 3 per cent. Consols, in the joint names of Sayer and Bradshaw, had been afterwards sold out, under a power of attorney from them, on the 11th of February, 1804; and that the produce of the sale, amounting to the sum of 1,328. 11s., had been, by their authority, paid over on the same day to the account of Sir Edward Knatchbull, by whom it had been applied to his own use. Certain exceptions taken to the Master's report by the defendants, the representatives of Sayer, having been overruled, the cause came on to be heard at the Rolls, for further directions, on the 5th of July, 1836; when an order was made, declaring, among other things, that the respective estates of Sayer and Bradshaw were liable to make good the sum of 2,3931. 158. 4d. 3 per cent. Consols, together with the dividends which would have accrued thereon since the death of the late Sir Edward Knatchbull; and the Master was directed to ascertain what, at the market price on the 5th of July, 1836, (being the day of the date of the order,) would be sufficient to have purchased the same amount of such stock, and to take an account of the dividends which (1) This was the expression used in the answer; but it was admitted, on all hands, that the period referred to was anterior to the time at which the defendants had notice of the breach of trust, or even of the existence of the trust itself. would have accrued thereupon from the day of Sir Edward Knatchbull's death; and it was declared that the defendants, the personal representatives of Sayer, having admitted assets, were liable to make good such sum of stock, and the dividends in respect thereof; without prejudice however to any right which they might have, upon satisfying the claims of the plaintiffs and of the defendants in the same interest, to call upon the other defendants, the executors of Bradshaw, for contribution. A petition of appeal, presented by the personal representatives of Sayer against the original decree, and also against the order made on the exceptions and on further directions, having come on to be heard, The LORD CHANCELLOR, after argument, dismissed so much of the appeal as related to the original decree, and to the order overruling the appellants' exceptions. That part of the petition which appealed against the order on further directions was then brought on for discussion, when several points were raised and debated, which it is not material to report, as they referred exclusively to other sums, being portions of the trust fund which had never been invested in stock, and for the loss of which also the appellants had been declared answerable. With respect to those sums, the LORD CHANCELLOR varied the order by directing a number of preliminary inquiries. Sir William Horne, Mr. Monro, and Mr. Purvis, for the appellants, then submitted that, with respect to the sum of stock which the Master's report found to have been sold out by the trustees, and paid over, by their authority, to the late Sir Edward Knatchbull, it would be extremely hard and unjust that the representatives of Sayer should be made personally responsible for the act of their testator, when it appeared from their answer, and was not disputed, that they had been in total ignorance of the breach of trust complained of, and indeed of the existence of the trust itself, until after the lapse of sixteen years from the death of their testator, and of eleven years from the death of Sir Edward Knatchbull; and when, moreover, as they had sworn by that answer, they had, many years ago, in the KNATCH- regular discharge of their duty as executors, paid off all their testator's debts of which they had any knowledge, and distributed FEARNHEAD. the surplus of his personal estate among his residuary legatees, and had not now a single shilling of his assets in their hands to answer the claim set up against them. If, under such circumstances, they were held personally liable, an executor could never safely administer his testator's estate, except under the indemnity afforded by a decree of the Court; and yet, if he insisted upon having recourse to that indemnity in a case where he had no notice of any *doubtful or contingent claim to justify such a proceeding, he would do so at the risk of being saddled with the costs. For these reasons it was impossible to hold that the appellants had been guilty of any devastavit with which they ought to be charged in a court of equity: Hawkins v. Day (1), The Governor and Company of Chelsea Waterworks v. Cowper (2), Davis v. Blackwell (3). [126] The LORD CHANCELLOR said, that, where an executor passes his accounts in this Court, he is discharged from further liability, and the creditor is left to his remedy against the legatees; but, if he pays away the residue without passing his accounts in Court, he does it at his own risk. The Solicitor-General and Mr. Lovat, contrà, were not called upon to argue the point. 1837. Aug. 3, 4. Nov. 4. Lord ELLICOMBE v. GOMPERTZ. (3 My. & Cr. 127–154.) Bequest of a residue upon trust for the testator's grandson, B., the son of Isaac, at twenty-five, for life; and, after the death of B., in case he shall have a son who shall attain twenty-one, then for such son of B., who shall first attain twenty-one, absolutely; and in default of such son of B., and after B.'s death, then upon trust for the testator's grandson, J., the son of Isaac, at twenty-five, for life; and after the death of J., in case he shall have a son who shall attain twenty-one, then to such son of J. who shall first attain twenty-one, absolutely; with the like (1) Amb. 160; and see App. 803, Blunt's ed. (2) 1 Esp. 275. (3) 35 R. R. 503 (9 Bing. 5). limitations successively in favour of any other grandsons, sons of Isaac, born in the testator's lifetime, and their respective sons first attaining twenty-one; and in default of a son of any such grandson attaining twenty-one, then upon trust for any son of Isaac, born after the testator's decease, who shall first attain twenty-one, absolutely; and in case no son of any son of the testator's son Isaac, then born, or thereafter to be born in the testator's lifetime, nor any son of his son Isaac, born after his decease, shall live to attain twenty-one, then from and immediately after the decease of all the sons and grandsons of his son Isaac, upon trust for the testator's nephew, G., for life; and upon the decease of his nephew, G., in case he shall have a son who shall live to the age of twenty-one, then upon trust for such son who shall first attain twenty-one, absolutely: Held, upon the whole context of the will, that the words after the decease of all the sons and grandsons," must be read as if they had been "after the decease of all the aforesaid," or all such sons and grandsons;" and that the limitation over in favour of the first son of G. attaining twenty-one, was therefore not too remote. THE will upon the construction of which this case depended, was very special, and is set out at great length in the original report, but the statement of the will contained in the judgment of the LORD CHANCELLOR is sufficient for the purposes of the report. The judgment also indicates the arguments of counsel, and refers to the principal cases cited by them. The plaintiff contended that the ulterior limitations of the will were void for remoteness. ELLICOMBE v. GOMPERTZ. The defendant demurred. Mr. Wigram and Mr. Richards, for the defendant in support of the demurrer. [137] Mr. Jacob, Mr. Hodgson, and Mr. James Russell, for the plaintiff. [140] Mr. Wigram, in reply.] [143] THE LORD CHANCELLOR : The question raised by this demurrer is, whether the gift of the residue in the will of Henry Isaac be void, as too remote. It appears that at the time of making the will the testator had two sons, Hyam Isaac and Isaac Isaac; and that this Isaac Isaac had two sons, Benjamin and Joseph Isaac; and that the testator had also a nephew, Joseph Gompertz, the son of a sister Nov. 4. [144] t. GOMPERTZ. ELLICOMBE and the father of the defendant. Hyam, the testator's eldest son, appears from the will to have been guilty, in the opinion of the testator, of extravagance. The testator, by his will, devised all his freehold and copyhold estate, except some premises in London, and an estate at Walthamstow, to the use of Isaac Isaac, his son, for life; remainder to his first and other sons in tail male remainder to his nephew, Joseph Gompertz, in fee,passing over all children of Hyam and all issue female of Isaac Isaac. The premises in London, with the furniture and effects therein, he devised and bequeathed to trustees, in trust for Isaac Isaac, for life; remainder to Hyam, for life; remainder to his nephew, Joseph Gompertz, absolutely-thus preferring him to any issue of either of his sons. [ *145 ] The estate at Walthamstow he directed should be sold, and the proceeds applied as the residue of his personal estate. The residue of his personal estate he gave to trustees, upon trust to pay his debts and legacies, in which were included a legacy of 300l. to Hyam; and to Isaac Isaac a legacy of 500l., and 2,000l. in payment of Hyam's debts, and to Hyam himself 400l. per annum, in monthly payments, for his subsistence; to Isaac Isaac the yearly sum of 1,100l., and to his wife surviving 500l. per annum, for the support of herself and his children till twenty-five; to the sons of Isaac Isaac, living at the testator's death, 2,000l. each at twenty-five; and to his daughters 2,0001. each at twenty-one, or marriage. He also gave other annuities. for life, and directed that the residue of his personal estate should be invested in the public funds; and that the dividends should be laid out to accumulate until his grandson, Benjamin Isaac, the eldest son of his son Isaac Isaac, should have attained twentyfive; and after that time, that his trustees should pay the interest of his residuary estate and of the accumulations to his said grandson for life; and, after his death, to pay the principal to such son of his said grandson Benjamin as should first attain twenty-one, with maintenance in the meantime for such expectant son of his grandson. * If his grandson Benjamin should have no son who should attain twenty-one, then there was a similar direction to pay the dividends to his grandson Joseph Isaac, from his age of twenty |