By the

distinctly settled whether two could exercise a power given to three or more. common law it was clear, that two of three executors could not exercise a power to sell; but this inconvenience was remedied by statute (3). There was no doubt that

if all the executors of a will should renounce probate, they might, nevertheless, still exercise a power to sell-but see Keates v. Burton (4).

Mr. Cairns, for the other defendants, cited Adams v. Taunton (5).

Mr. Currey replied.-The position laid down by Sir Edward Sugden, that executors after renouncing may exercise a power, is controverted in Williams on Executors (6). All the cases are examined by Mr. Davidson, in a note to the precedent given by him, for the appointment of new trustees in a mortgage, with trust to sell (7). He cited

Yates v. Compton, 2 P. Wms. 308.
Eaton v. Smith, 2 Beav. 236.

WIGRAM, V.C.-Sir Edward Sugden has fully considered the subject in his work on Powers, referred to by Mr. Stevens. The question is, whether the power is given to the office or to the individual. In the present case, the power is not derived from the will of G. A. Fullerton, but from the deed of release of 1833. I cannot help thinking that it was intended by the parties to that deed to give the power to such of their executors as should act in their respective wills. This being my view of the case, I shall declare that the appointment by the acting executors of G. A. Fullerton's will, by the deed of 1848, was a valid appointment. The devisees of George Stone must convey the trust property to the plaintiffs, Earl Granville and E. F. L. Gower, upon the trusts affecting the same, and the costs of all parties must be paid by those plaintiffs as between solicitor and client, and to be retained by them out of any trust funds in their hands.

(3) 21 Hen. 8. c. 4.

(4) 14 Ves. 434.

(5) 5 Madd. 435.

(6) P. 235, 4th ed.

(7) Mart. Conv. vol. iii. p. 478.

to

Residue-Tenant

A testator bequeathed his residuary estate to trustees, upon trust to provide a fund (which was subsequently to sink into the residue) for the payment of annuities, and then pay the income to his children and grandchild for life; and after the decease of either of them, upon trust to pay and transfer the share of the party dying in the principal, amongst all and every the child and children of the party dying, and if but one, to such one child-Held, that the gift to trustees, followed by trusts directing payment and transfer of the capital, gave immediate vested interests to the children of the tenants for life, living at the decease of the testator, and that the shares of two of the children who survived the testator, but died in the life of the tenant for life, passed to their legal personal representatives.

James Salmon, by his will, dated the 1st of December 1826, after giving several annuities, bequeathed unto Robert Green, Edmund Lucas, and Thomas Allen, their executors, administrators and assigns, all his stock, &c., and all the residue of his personal estate whatsoever and wheresoever, upon trust to invest a competent share to secure the regular payment of the annuities, and upon trust to stand possessed of the residue, and from time to time to receive the interest, dividends and produce thereof, and pay and apply such interest, &c. unto, between, and amongst such of his children and grandchild, in such shares and proportions as thereinafter next mentioned, for and during the term of the natural life of each of them, "that is to say, one third part or share of such interest, &c. unto my son James; one other third part or share of such dividends, &c. unto my daughter Rebecca; and the remaining third part or share unto my daughter Martha, the wife of Menke, and my granddaughter Elizabeth Peyton, now the wife of- Webb, in equal shares and proportions between them." And after the decease of the annuitants, the testator desired his trustees to stand possessed of the

"And

monies set apart, upon trust to apply the interest, &c. in the same manner as directed concerning the other part of his estate and effects. The testator also directed that the shares of his daughters and grand-daughter should be for their separate use. from and after the decease of my said children and grandchild, or either of them, then upon further trust that they my said trustees, or the survivors or survivor of them, or the heirs, executors or administrators of such survivor, shall and do pay and transfer the share or shares of him, her or them so dying, of and in the principal stocks, and also of and in the said stock or sum so to be purchased and invested by my trustees as aforesaid, unto, between, and amongst all and every the child and children of my said son and daughters and grandchild, respectively so dying, lawfully begotten, share and share alike if more than one child of my said son and daughters and grand-daughter respectively, and if but one child of each of them, then the share or shares of him, her or them so dying to be paid or transferred to such only one child, her or his executors, administrators or assigns respectively; and my will is, that if either of my said children, James, Rebecca and Martha, or my said grandchild Elizabeth Peyton, shall die without issue begotten, or being such, all of them shall die without issue lawfully begotten, or being such, all of them shall die under the age of twenty-one years, that then the shares or share of him, her or them so dying without such issue of and in the said principal stock, so to be invested, for payment of the said annuities, when and as the same shall fall in as aforesaid, shall go and be equally divided between and amongst all and every the children or child of the survivor or survivors of them my said children and grandchild, share and share alike, if more than one such child, and if but one such child, then to that only, to his or her executors, administrators and assigns." The testator then directed that the share of the children of his children and grandchild should be for their separate use, and he appointed his trustees executors of his will.

The cause now came on for further directions upon the Master's report of the 11th of May 1848, made under a decree,

dated the 22nd of July 1845, and he found that the testator died on the 7th of December 1826, and that his will was proved on the 7th of February 1827. That on the 3rd of August 1841, James Salmon, the son, having enjoyed the income of his share during his life, died intestate, having had seven children. That Mary Ann, the wife of Israel Huntley, Eleanor and Charles, three of the children of James Salmon, the son, attained twenty-one, and were alone living at the decease of the testator. That no child of James Salmon, the son, was born after the testator's decease. That Eleanor Salmon died in June 1841, after the decease of the testator, but before her father, intestate, and without having been married; and, on the 10th of December 1842, letters of administration of her estate were granted to her brother Charles Salmon, the plaintiff. That Mary Ann Huntley died in April 1838, intestate; and on the 27th of May 1843 letters of administration of her estate were granted to Sarah Huntley.

Mr. Roupell and Mr. Sheffield, for the plaintiff Charles Salmon.-During the life of James Salmon the son and tenant for life, the interests in remainder were not intended to vest: the will contained no bequest to the parties intended ultimately to take. The whole estate was given to the trustees, with a direction that, after the decease of the tenant for life, they were "to pay and transfer" the share of the party dying among a class of objects, which referred to the children of the party dying; but it was never intended to give them vested interests during the life of the tenant for life. Up to the time, therefore, of his decease the interest was contingent; the party entitled in remainder was then to be ascertained; if any died their interests were determined, and the plaintiff, as the sole surviving child of James Salmon the son, was entitled to one-third of the residuary estate absolutely.

Beck v. Burn, 7 Beav. 492; s.c. 13 Law J. Rep. (N.s.) Chanc. 319. Billingsley v. Wills, 3 Atk. 219. Mr. Walpole and Mr. Hallett, for Sarah Huntley.-The bequests were immediate, and vested upon the decease of the testator, and the use of the words "from and after" was an intimation only of the time at which the payment was to be made. The principle

to be collected from the cases was, that when the time of payment was postponed, the being in esse at the time was not a condition precedent to the vesting-Monkhouse v. Holme (1), Benyon v. Maddison (2), Roberts v. Burder (3), Packham v. Gregory (4). But assuming the gift to be vested, it could only be divested if either of the children or grandchild "should die without issue begotten; or being such, all of them should die without issue lawfully begotten, or being such, all of them should die under the age of twenty-one years," but none of these contingencies had happened to divest the legacy; the vesting, therefore, remained undisturbed-Harrison v. Foreman (5), Sturgess v. Pearson (6), Bromhead v. Hunt (7), 1 Roper on Legacies, 584, 4th edit. Blamire v. Geldart (8), Kimberly v. Tew (9). The effect of the bequest, therefore, was to vest the onethird of the residuary estate in all the children of James Salmon the son, living at the decease of the testator.

Mr. Turner, for the executors.—Bull v. Pritchard (10).

Mr. Roupell, in reply.-The cases cited did not apply to gifts to classes to be determined on at a future time, but to individuals. In this case no gift of the capital could be implied until the period of distribution: the effect of the gift was to make the class ascertainable at the period of distribution: in the present case the gifts to the children were postponed until after the decease of the tenant for life, and the trust could not be executed until the period of distribution.

remained contingent until his death, when it vested in the plaintiff as his only surviving child, who now claimed one-third of the residuary estate of the testator. The personal representative of the deceased sister Mary Ann, however, insisted that the share of the testator's son James vested in all his children living at the testator's decease. Upon considering the will it appeared that the gift of the testator's residuary estate to trustees, upon the trusts after mentioned, followed first by a trust to provide for annuities, then by a trust to pay the income to the legatees for life, and then by a trust to pay and transfer the capital to the children of the tenant for life, was such a trust of the capital as gave to those children an interest which vested immediately on the testator's decease; the plaintiff's sisters, consequently, then acquired an interest, which upon their death in the lifetime of their father James, the tenant for life, passed to their legal personal representatives.

This was a foreclosure suit instituted against the defendant, the mortgagor, by the plaintiff, the equitable mortgagee of certain leasehold houses and premises at Pentonville, Middlesex. The plaintiff moved, upon notice by special leave of the Court, before the defendant had appeared, for the appointment of a receiver, with liberty to lay out a sum of about 100%. for rendering the houses fit for occupation. The affidavit, in support of the motion, stated that a sum of 2,000l. and upwards was due from the defendant to the plaintiff, and that no payment in respect of principal or interest had been made for a considerable time; that most of the houses were in an unfinished state, and consequently unoccupied; and that the

sum of 100%., or thereabouts, would be sufficient to render them fit for occupation. The Court ordered a receiver to be appointed, but without liberty to lay out any monies in finishing the houses.

Mr. Hare, for the plaintiff, now mentioned to the Court that the Registrar hesitated to draw up the above-mentioned order, because he considered it a new practice to order the appointment of a receiver on motion before appearance, except in cases, and as a consequence, of an injunction being granted by the Court.

WIGRAM, V. C. said, that the case of urgency appearing by the affidavits, he could not see why an order for a receiver should not be made before appearance on a motion where no injunction was asked. In the case of Tanfield v. Irvine (1) the Court appointed a receiver on behalf of a party having an equitable interest, although the mortgagor was out of the jurisdiction, and had not been served.

L.C.

MACINTOSH v. THE GREAT WEST

Feb. 9. S ERN RAILWAY COMPANY.
Production of Documents.

Defendants by their answer stated, that save as appeared therein and in the documents which were mentioned in the schedule thereto, and which the defendants were willing to produce as part of their answer, they were unable to answer further. In a subsequent part of the answer, the defendants admitted possession of the documents scheduled to the answer, which they were willing to produce, with the exception of such as were confidential communications, for which they claimed privilege :-Held, that by the general reference in the former part of the answer, the whole of the documents were made part of the answer; and that the subsequent reservation of some on the ground of privilege would not protect them from production.

In this case a motion had been made before K. Bruce, V.C. for the production

(1) 2 Russ. 149.

NEW SERIES, XVIII.-CHANC.

of documents admitted by the defendants' answer to be in their possession. The order was made for production of some of the documents, but as to the rest, the motion was directed to stand over.

The motion was now renewed before the Lord Chancellor by way of appeal, for the purpose of varying the order of the Vice Chancellor, by directing the production of all the documents.

The joint answer of the Great Western Railway Company, of Mr. Brunel, their engineer, and Mr. Saunders, their secretary, stated as follows:-" By reason of the lapse of time, the magnitude and variety of the transactions and matters in the said bill mentioned and inquired after, the deaths of some and absence of other parties, and other circumstances, the defendants are unable now to speak with certainty as to many of the matters in the said bill mentioned and inquired after. But the defendants Brunel and Saunders respectively say, that in their answer they have respectively spoken to the best of their knowledge, remembrance, information and belief. And all the defendants say, that save as herein and in and by the certificates, reports, correspondence, books, documents, papers and writings, which are mentioned and comprised in the schedule hereunto annexed, and which the defendants are ready and willing to produce as part of their answer, in the same manner as if the same had been set forth at length, is mentioned and appears, the defendants respectively are unable to make any further or better answer to all or any of the matters and things in the said bill mentioned and inquired after, and which, as the defendants are advised, it is necessary for them or any or either of them to make answer unto."

The latter part of the answer contained the following statement:-" The defendants, the said company, have in their possession or power the several documents, papers and writings, mentioned and set forth in the schedule hereunto annexed, and which relate, as to some of them wholly, and as to the rest in part, to the matters and things in the said bill mentioned, and which the defendants, the said company, are ready and willing to produce

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