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24,0901. 7s. 8d. three per cent. annuities being
thereof, since the transfer to such last-mentioned traceount, if any, should be also carried over to the
ines :: D 4
credit of the cause under the title Wienholt v. Birkett. And it was ordered, that the Master should take the subsequent accounts of the personal estate of Daniel Birkett the elder, received by Alexander Logan and the Appellant, Sarah, his wife, including what might have been received under the voluntary dispositions of personal estate, as to which the Respondents were thereby and by the decree in the cause declared to be entitled to be relieved. And it was ordered, that what should have come to the hands of Alexander Logan should be answered by him, and what should have been received by the Appellant, Sarah Logan, should be answered by her trustees out of her separate estate. And it was ordered, that the Master should enquire who had been in possession of and in receipt of the rents and profits of the real estates of Daniel Birkett the elder since his decease; and in case the Master should find that Daniel Birkett the younger, deceased, or any of the parties to the suit, had been in the possession or receipt of the rents and profits of such real estates or any of them since such his decease, then it was ordered, that the Master should take an account of the rents and profits of such real estates come to the hands of Daniel Birkett the younger, deceased, or to the hands of any of the parties to the suit, or to the hands of any person or persons by their or any of their order, or for their or any of their use; and in case the funds in Court, and other property applicable thereto under the decree, should not be sufficient to answer what should be found to have been received by Daniel Birkett the younger, it was ordered, that the deficiency be answered by the Appellant, Sarah Logan, hiş executrix, out of 1833.
his estate and effects. And it not appearing, by the Master's report, by whom the rents, dividends, and interest of the separate estate of the Appellant, Sarah Logan, had been received, it was ordered, that the Master should enquire and state to the Court who, since the date of the decree, had been entitled to receive the rents, dividends, and interest thereof, and to whom the same had been respectively paid; and in case he should find the Appellant, Sarah Logan, to have been in the receipt and enjoyment of such rents, dividends, and interest, it was ordered, that he should enquire whether her receipt thereof respectively was or not with the permission of her trustees; and state the particulars of such separate estate, and what had become thereof, and state special circumstances; and it was ordered, that the Master should tax all parties their subsequent costs of the suit to that time, the costs of such' of the defend. ants as were trustees or executors to be taxed as between solicitor and client; and he was to be at liberty to make a separate report thereof; and it was declared, that such last-mentioned costs, as well as the costs already taxed and paid, were to be borne and paid by and out of the residuary personal estate of Daniel Birkett the elder; and directions were given for the payment of a debt by the Master's general report certified to be due to Samuel White Sweet and Charles Scott Stokes, together with the amount of such costs. And it was ordered, that the Master should state how much was due to the Respondents for interest, and how much for capital; and all further directions were reserved until the Master should have made his report. ' -*
The appeal was from the original decree, and from the order, on further directions.
The case was argued, first, in February, and afterwards in July, 1832, by Sir Charles Wetherell and Mr. Pepys, for the Appellant; and by Sir Edward Sugden and Sir W. Horne, for the Respondent.
The principal authorities cited were, Jones v. Martin, 3 Anst. 882., and in note to Randall v. Willis, 5 Ves. 266. Purdew v. Jackson, 1 Russ. Chillener v. Chillener, 2 Ves. 528. Lewis v. Madocks, 8 Ves. 150. 17 Ves. 48. Turner v. Jennings, 2 Vern. 612.685. Tomkyns v. Ladbroke, 2 Ves, 591.
In the course of the argument Lord Eldon said, “ If a man covenants to leave as much to one “ child as to any other, he may give any part to 66 one in his lifetime, and leave the rest to be di“ vided at his death, and that will satisfy the “ covenant. But if he gives the reversion to the
child, reserving a life-interest for himself, it is a «fraud upon the covenant, as it was held to be in " the case of a power where a father appointed " the bulk of a fund to one of his children who
6 was in a consumption." "' iil 1. He also said that, as to the real estate pur.
chased, it was left to the Master, upon the original · decree, to enquire as, to the circumstances under
which the real estate had been purchased ; and that the evidence before the Master: shewed a case of fraud upon the agreement which the courts could not permit to be practised: :: !" 1.111011
The Lord Chancellor said, that the testator was at liberty to do as he pleased with the property du
ring his life, if he acted bona fide ; that the mere laying out the personalty in land would not constitute fraud; but the fraud was in giving the land afterwards, reserving the life-interest, whereby, at his death, the donee got money through the mea dium of land ; that he might have left it to descend to his heir ; but the fraud was in the contrivance to retain the enjoyment, and yet devise it in breach of the covenant.
The Lord Chancellor. * -The noble Lords who have heard the argument concur in opinion, that the bond must be construed as an agreement. This is the foundation of the original decree. The dif. ficulties which have pressed, and the doubts which have occurred to us, arise from what has since been done by the decree upon further directions; and these doubts, which apply to more than one part of the case, have not been removed in the course of the argument. It will be necessary, therefore, to take farther time for consideration. Without stating, at present, any positive opinion upon the questions arising out of the decree on farther directions, I feel a strong inclination of opinion upon one or two points. As to the 57,000l. which the Vice-Chancellor treated as if it had been transferred to Daniel Birkett the younger, I will say nothing decisive at present, although I feel some doubt; but I am disposed to dissent from that part of the decree which treats all the property as within the meaning of the agreement. -If it were now necessary to give my opinion, I should say that the agreement, according to sound
sin i loro. I 99111 -U /!r*g-474* At the conclusion of the argument, allts.