fendants, Charles Lucas Edridge, Arthur Palmer, and Charles Cadell Edridge, or by any of them, or by any person or persons by their or any of their order, or for their or any of their use, for or in respect of the rents and profits of the said real estates, and that what should be found due from them, on taking such account, might be applied upon the trusts of the said testator's will, so far as the same were good in law; and that the Court would be pleased to declare how far the said trusts of the real and personal estate were good; and as far as the said trusts might be declared to be void, that the said Plaintiff might be declared to be entitled to the real estate; but in case the said trusts of the said will should be considered valid, then that such of the rents and profits of the estates devised to the said trustees in possession, as accrued during the life of the said Joanna Bengough, might be applied in the purchase of freehold estates of inheritance in England or Wales, and the said annuities of 300l. to the said Plaintiff, and 200l. to the said Defendant, Henry Bengough, respectively, might be paid and satisfied out of the said rents and profits, and that the residue thereof might, during the remainder of the said term of twentyone years, be also applied in the purchase of freehold estates of inheritance in England or Wales; and that such estates, when purchased, might be conveyed to the trustees for the time being of the said testator's will, upon the trusts declared in the said will of the said estates so to be purchased. And that when and as often as there should be the sum of 1500l., arising from the rents and profits of the said devised estates, such sum of 1500l. might be laid out in such purchases of freehold estates as 1833. CADELL บ. PALMER. 1833. CADELL PALMER. aforesaid, and that the Plaintiff might be declared to be entitled to the immediate possession and enjoyment of the said estates so to be purchased, for the term of ninety-nine years, if the Plaintiff should so long live; such term to commence and be computed from the death of the said testator; and that in case the said rents and profits should not, as soon as they amounted to 1500l., be so laid out, the Plaintiff might be declared entitled to the interest and dividends thereof, from the time the same rents and profits amounted to 1500l., until the same should be so laid out in the purchase of freehold estates as aforesaid: And that if it should appear that the said Defendants, Charles Lucas Edridge, Arthur Palmer, and Charles Cadell Edridge, had already received more than the sum of 1500l. from the rents and profits of the said devised trust estates, and had laid out the same in the purchase of freehold estates, the Plaintiff might be declared entitled to the possession and enjoyment thereof from the time the same estates were so purchased, for a term of ninety-nine years, if the said Plaintiff should so long live; such term to be computed from the death of the said testator; or if such sum of 1500l. had been so received by the said Defendants, Charles Lucas Edridge, Arthur Palmer, and Charles Cadell Edridge, and not yet applied in such purchase, that the said Plaintiff might be declared entitled to the interest and dividends which had accrued on such sum, from the time the lastnamed Defendants had received the same; and also to the interest and dividends which should accrue due thereon, until the same should be laid out in the purchase of freehold estates of inheritance, as aforesaid: Or that, in case the same trusts were partly valid and partly invalid, then that proper directions might be given for effectuating such of the trusts as were valid, and for declaring and effectuating the rights of the persons entitled so far as the trusts were invalid; and that, if necessary, a proper person might be appointed to collect and get in the outstanding personal estate of the said testator, and to collect and receive the rents and profits of the said real estates of the said testator, and to manage the same, and that all necessary directions might be given for that purpose. The several Defendants appeared to the bill, and put in their respective answers thereto. The cause came on to be heard on the 31st day of May, 1823, before his Honour the then ViceChancellor, and it was ordered, that it should be referred to Mr. Alexander, then one of the Masters of the Court of Chancery, to enquire, and state to the Court, who was the heir at law of the testator at the time of his death, and who was then his heir at law, and who were his next of kin at the time of his death, and, if any of them were since dead, who were their legal personal representatives; and for the better discovery thereof, the usual directions were given, and the Court reserved the consideration of all further directions, and of the costs of the suit, until after the Master should have made his report; and any of the parties were to be at liberty to apply to the Court as there should be occasion. The Master by his report dated 17th December, 1823, made in pursuance of the order, certified that the plaintiff, George Bengough, the nephew of the testator, was, at the time of his death, and then was, 1833. CADELL V. PALMER. 1833. CADELL V. PALMER. the heir at law of the testator; and that Ann Ricketts, deceased, the sister of the testator, was his only next of kin at the time of his death; and that the Respondents William Peter Lunell, John Evans Lunell, and George Lunell, her executors, having duly proved her will in the Prerogative Court of the Archbishop of Canterbury, were then her legal personal representatives; and the only persons who, together with the plaintiff, George Bengough, and the defendants, Henry Bengough, James Bengough, and Ann Elizabeth Bengough, the children of the testator's late brother, George Bengough, and the Defendant, Charles Lucas Edridge, and the Appellant, the executors of Joanna Bengough, the widow of the testator, would, in case of intestacy, have been entitled to distributive shares of the personal estate of the testator. James Bengough died on the 4th day of De cember, 1825, intestate, leaving Sarah Bengough, his widow; and Sarah Bengough obtained letters of administration of James Bengough's personal estate and effects, to be granted to her by and out of the proper ecclesiastical court. George Bengough on the 21st of December, 1825, filed his bill of revivor in the Court of Chancery against Sarah Bengough; and by an order of the Court, bearing date the 7th day of January, 1826, the suit was accordingly revived. Charles Lucas Edridge died on the 4th of January, 1826, leaving Arthur Palmer and Charles Cadell Edridge, him surviving; and the testator's niece, Ann Elizabeth Bengough, intermarried with William Ignatius Okely. The cause came on to be heard, on further directions, before the Vice Chancellor, and by a de cree bearing date the 24th of January, 1827, it was declared, that the testator's will ought to be established, and the trusts thereof performed and carried into execution, and the Court ordered and decreed the same accordingly; and it was amongst other things ordered, that the Plaintiff's bill should be dismissed out of the Court, as against the Defendants William Peter Lunell, John Evans Lunell, George Lunell, and Sarah Bengough, and the Appellant, with costs, to be taxed and paid as thereinafter directed. And the Court declared, that according to the true construction of the testator's will, the Plaintiff was not entitled to the immediate possession and enjoyment of the freehold estates, which the testator had, by his will, directed to be purchased with the rents and profits of the real estates, devised by his will, and the accumulations of those rents; but that the rents of such estates to be so purchased were, according to the true construction of the will, subject to the trusts for accumulation during the term of twentyone years, commencing from the death of the said testator. This decree was signed by the Lord Chancellor, on the 31st day of March, 1828, and enrolled among the records of the Court of Chancery. The appeal was against the decree on further directions. For the Appellants, Sir Edward Sugden and Mr. Lynch. For the Respondent, Arthur Palmer, Mr. Preston and Mr. Wilbraham. For the Respondent, George Bengough, Mr. Pepys and Mr. Piggott. 1833. CADELL v. PALMER. |