very gist and foundation of the action. The evidence shews that the money was advanced in November, 1831, and the deed was not executed until January, 1832; the deed may therefore be void, in consequence of the finding of the jury; but the debt still remains, and is set up by the account which was produced. Here the verdict has only tainted the security given to M. Savory, but the debt is still morally and legally due to the executors. The whole of the account which a party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself, ought not to be received without at the same time receiving his contemporaneous assertion of a fact favourable to himself, Randle v. Blackburn (ƒ). TINDAL, C. J.-This rule should be discharged. The action is brought to recover the full amount of a legacy in the hands of the defendants. This is in form an action upon an account stated, and it is true that the plaintiffs would have had no locus standi in court, unless such an account had been produced in evidence; by this account the defendants admit, on one side, a receipt of 6227. 38. 10d., and on the other side they claim 4551. for principal and interest on an assignment, leaving a certain balance, which is admitted to be due. The only question is, whether this account, having been rendered, the plaintiffs are so conclusively bound by the item on the debtor side, as to be prevented from disputing it. I know of no rule of law to preclude them from shewing that a particular item is incorrect; thus they may shew a mistake in the payment of the money, and if this is so when the account consists of many items, why should it not be so when there is only one? It is said that this was a settling of the account between the parties, but the evidence was, that the assignment was an instrument which the law would not support; it was given to one of the defendants as a security for a loan advanced to keep up the credit of the insolvent, which was then in a declining state, and the jury have found that the assignment was made with a view of petitioning the Insolvent Debtors' Court; and by a clause in the Insolvent Debtors' Act, an assignment made under such circumstances is altogether fraudulent and void. But the case does not even rest here; there is a precise issue raised by the pleadings upon the validity of this assignment, which has been found by the jury in favour of the plaintiffs; it therefore seems to me that the plaintiffs are entitled to recover the whole of the property held by the defendants for the insolvent, and the defendants cannot avail themselves of this mode of setting off the debt. There is no reason to impute fraud to the defendants personally, but the insolvent has done that which the law declares is a fraud upon his other creditors. The rule must be discharged. PARK, J.-I agree that although an account may be clear upon the face of it, it is not so conclusive that the other party may not shew that a particular item is incorrect; here the jury have found that the money was advanced to keep up the credit of the insolvent, and that when the assignment was made the party intended to take the benefit of the Insolvent Act; the verdict therefore stands firm, and cannot be altered. GASELEE, J.—I felt a difficulty for some time as to whether the plaintiffs (f) 5 Taunt. 245. Com. Pleas ROSE v. SAVORY. against an exe cutor he pleaded a retainer were not bound to take the account as it stands, but upon further consideration I think the verdict should not be reduced. VAUGHAN, J.-The account is not conclusive, and the assignment which appears upon the face of it, has been declared to be fraudulent by the verdict of the jury. Rule discharged. Cox v. PEACOCK, Executor, &c. In assumpsit ACTION against an executor, on a promissory note made by the testator. Pleas 1st, A retainer; and 2d, Plene administravit præter, 107. The plaintiff admitted the truth of the plea of retainer, and having had the principal and interest computed and the costs taxed, he took judgment of assets quando acciderint, for the remainder of the debt; but the prothonotary refused to allow the plaintiff to enter up the judgment for his costs. and plene administravit præter, and the plaintiff, admitting the truth of the pleas, took judgment of assets quando acciderint:Held, that he was entitled to enter it up for the debt and costs. 1 Wilson applied for a rule to require the prothonotary to review his taxation. De Tastet v. Andrade (a) is precisely analogous to the present case, and there it was held that the plaintiff was entitled to have judgment entered for his costs in futuro.-[Park, J.-Batt v. Deschamps (b) is an authority against you.]-But there the nature of the plea is not stated. The Court said they would confer with the other judges, in order that an uniform rule might be established, and on a subsequent day they intimated to the prothonotary that the plaintiff was entitled to his costs, as well as to his damages, de bonis testatoris quando acciderint, and they directed the judgment to be entered accordingly. (a) 1 Chit. Rep. 629, 630, note. (b) Cited Tidd. 980, 9th ed. LOUISA CURSHAM, SUSANNAH WOODYER MERRICKS, and and WILLIAM CHARLES NEWLAND, WILLIAM WOLLAMS HOLLAND, Devise to A., ON the hearing of this cause by his Honor the Master of the Rolls, on the 8th day of July, A. D. 1833, it was ordered that the following case should B., and C., and their lawful issue respec tively, in tail general, with benefit of survivorship among the issue respectively as tenants in common:-Held, that A., B., and C. took life estates, and their children contingent remainders in tail general, by purchase in their respective parents' shares, with cross remainders in tail among A., B., and C.: the testator having used the word "issue" as synonymous with sons or "daughters." be stated for the opinion of this Court, and accordingly it came on for argument in Easter Term, 1835:— Richard Merricks, by his will duly executed and attested, after giving a legacy of 50%. to each of his executors and trustees, as an acknowledgment for the trouble they might have in performing and discharging the trusts of the will, and after reciting that he was seised in fee of one undivided third part of certain messuages at Hillingby, gave and devised the same "Unto and to the use of my nephews, B. W. Gilbert and G. F. Gilbert, and their assigns respectively, during their natural lives, and the life of the longest liver of them; and after the determination of those estates, by forfeiture or otherwise, to the use of my trustees Wm. Chas. Newland, Wm. Woollams Holland, and Henry Hall, and the survivor of them, and the heirs of such survivor, during the lives of my said nephews, and of the survivor of them; upon trust to preserve the uses hereinafter limited from being defeated, and to make entries and bring actions; but nevertheless to permit and suffer my said nephews, or the survivor of them, or their assigns, to take the rents, issues, and profits of the same premises during their natural lives, and the life of the longest liver of them, to and for their and his absolute use; and from and after the decease of my nephews and the survivor of them, to the use of all and every the lawful children of my nephews, and to their heirs and assigns for ever, as tenants in common and not as joint tenants; and in case there shall be only one such child, then to such only child, and his or her heirs and assigns for ever; but in the event of there being no such child, or there being children of my said nephews, or such only child, and they, or he, or she, dying in the lifetime of the said B. W. Gilbert and G. F. Gilbert, or the survivor of them, without leaving lawful issue, then, from and after the decease of the said B. W. Gilbert and G. F. Gilbert, and the survivor of them, I give and devise all the aforesaid messuages to and for the same uses, ends, intents, and purposes, as I have hereinafter directed as to the disposal of my residuary real and personal estates:" and after directing his said trustees, within three months after his decease, to invest 40007. in some of the government stocks, directed that they should stand possessed of the same, upon trust, "to pay to his son Richard Merricks, or to permit and suffer him to receive the dividends arising therefrom during his natural life; and in case he should intermarry with any wife, and leave her him surviving, then to pay to such wife, or to permit her to receive the same dividends during her natural life, and after the decease of the survivor, then upon trust, to pay the principal of the said trust-moneys, stocks, or funds, in equal shares and proportions unto and amongst all and every the children of my said son, Richard Merricks, lawfully begotten, who shall live to attain the age of twenty-one years, being a son or sons, or, being a daughter, shall live to attain that age, or be married with the consent of her parents or guardians; and if there shall be only one child of my said son who, being a son, shall live to attain the said age, or, being a daughter, shall attain that age, or be married with such consent as aforesaid, then upon trust, to pay, assign, and transfer the whole of the said trust, stocks, or funds, to such only child for his or her own use and benefit absolutely; but in case my said son, Richard Merricks, shall happen to die without leaving lawful issue, or, leaving lawful issue, such issue being a son, shall not live to attain the age of twenty-one years, or, being a daughter, shall not attain that age, or be mar Com. Pleas. CURSHAM v. NEWLAND. ried as aforesaid, then upon trust, immediately after the decease of my said son, Richard Merricks, and of any wife with whom he may have intermarried, and of the survivor of them, to pay, assign, and transfer the said principal, trust, stocks, and funds, in equal shares and proportions between and amongst my four daughters, Elizabeth, the wife of George Buckton the younger, Louisa Merricks, Susannah Woodyer Merricks, and Harriet Merricks, who shall be then living, or to the lawful issue of such of them as shall be then dead, such issue taking the part or share which their, his, or her mother would have been entitled to, had she been then living, such share to be divided in equal parts and proportions amongst the children of such of my daughters who shall be then dead, if more than one, and if but one, then the whole of such my deceased daughter's share shall go and be paid to such only child; and if neither of my said daughters shall be then living, at the decease of my said son, Richard Merricks and his wife, without leaving lawful issue as aforesaid, then I direct that the whole of the said trust, stocks, and funds shall be divided between and amongst all my grandchildren (being children of my aforesaid daughters), equally between them." "Item:-I give, devise, and bequeath all the rest of my freehold, copyhold, and leasehold estates, with all my household goods, plate, linen, china, and all other my real and personal estate, with their appurtenances, according to the nature and quality of such estates respectively, to *my dear wife Elizabeth Merricks, to have, receive, and take the rents, issues, and profits, interest, dividends, and proceeds thereof, for her own absolute use and benefit for and during the term of her natural life, and from and immediately after her decease unto my said son and daughters, Richard Merricks, Elizabeth, the wife of the said George Buckton*, Louisa Merricks, Susannah Woodyer Merricks, and Harriet Merricks, and their lawful issue respectively in tail general, with benefit of survivorship to and amongst their issue respectively, as tenants in common and not as joint tenants; provided always, that such issue not to have a vested interest until they attain the age of twentyone years, being sons, and, being daughters, until they shall attain that age or be married: but during the minority of the said issue of my said son and daughters respectively, I do hereby authorize my said trustees, or the survivors or survivor of them, or the heirs of such survivor, after the death of either my said son or daughters respectively, to apply the whole or any part of the rents, issues, and profits of the said estates, and not exceeding the interest of the presumptive share of each child therein, for and towards his, her, or their maintenance, education, and advancement in life during minority: and in case my said son and daughters, or any or either of them, shall die in my lifetime or after my decease without leaving lawful issue, or with lawful issue, and such issue being a son or sons, shall not live to attain the age of twenty-one years, or being a daughter or daughters, shall not live to attain that age or be married; then the part or share, or parts or shares of him, her, or them so dying, to be for the benefit of the survivors and their issue; in the same manner as their original parts and shares are hereinbefore given to them respectively as aforesaid. "Item:-I do hereby make, constitute, nominate and appoint the said William Charles Newland, William Woollams Holland, and Henry Hall, executors of this my will; provided, and my will is, that my said trustees and executors hereinbefore named, and the survivors and survivor of them, and the executors and administrators of such survivor, shall and may at all times, in the first place, reimburse and indemnify themselves and himself respectively, all such costs, charges, damages, and expenses as they or either of them shall or may at any time expend, lay out, and be put unto for or by reason or means of all, any, or either of the trusts hereby in them reposed," &c. The said testator departed this life on the 26th of June, 1822. The said B. W. Gilbert has one child only (that is to say) the defendant, Thomas Gilbert. The said George Fagg Gilbert never has had any child. The said Richard Merricks, the son of the testator, has never had any child. The said Louisa Cursham, one of the said plaintiffs, never had any child. The said Elizabeth Buckton, one of the said defendants, has seven children, that is to say, the said Elizabeth Merricks Buckton, George B. Buckton, Maria Louisa Buckton, Fanny Buckton, Emma Buckton, Amelia Buckton, and Woodyer Merricks Buckton, all of whom are infants under the age of twentyone years. The said Elizabeth Merricks, the devisee for life, departed this life in the month of April, 1825. The question for the consideration of the Court on the preceding case was— What estates the children took in the freehold, copyhold, and leasehold lands, respectively; and whether the grandchildren take by purchase any, and what estates, in the same lands respectively, or any of them? Preston, for the plaintiffs.-In the first clause of the will there is the devise to the nephews for life, with remainder to the children, which is a clear and distinct devise to distinguish it from the residuary bequest. Now, in the residuary bequest, there is this particularity favourable to the construction, that the children take estates tail, namely, that they are to take in tail general. The substantial part of this residuary clause is a devise to the wife for life, and from and immediately after her decease, to the son and daughters, and their lawful issue respectively; and supposing it had stopped there, it would have been clearly an estate tail in the children, King v. Melling (a). But from the introduction of the words, tail general, the question arises whether the Court can cut down the gift, and read the limitation to the issue, as to the children. In order to answer the testator's general intention, and having regard to the former devise, the children take estates tail in the residuary freehold and copyhold estates, subject to the limitation over by way of contingent remainders; and they take corresponding interests in the residuary leaseholds, subject to a limitation over by way of executory bequest, and there are also interests in the nature of cross remainders between the sons and daughters. That there is to be a tenancy in common is expressly stated; but whether amongst the children themselves, or their issue, may be a question. The gift to the son and daughters would create a joint tenancy, if the subsequent words do not apply to them: that being the case, supposing the son and daughters take estates tail, there will be a regular succession; each branch of the family would have one-fifth, and on failure of either branch, the other branches would increase proportionably in their shares. But if the words creating the tenancy in common apply to the issue, then they take as pur (a) 1 Vent. 225. Com. Pleas. CURSHAM v. NEWLAND. |