much more satisfactorily proved than it was when a previous case of Radde v. Knoblauch founded upon the same or a similar title, was before me, may still be open to considerable question. I by no means decide that even, as now proved, it would be sufficiently established, as against a person who in ignorance of any claim upon Radde's part, had sold or offered for sale the raw Leopoldshall kainit, kainit which he had lawfully got into his possession, with good reason to believe that it was so. But it seems to me that the title is sufficiently established to justify me, on an interlocutory application, in granting an injunction against persons who, when challenged, can say no more in their own favour than the defendants have said in this case. shall therefore grant the injunction, except as to the words, "The product of the Leopoldshall mines," which must be omitted from the order.

Solicitors Mr. T. J. Holmes, for plaintiffs; Messrs. Cree & Last, agents for Messrs. Barrell & Rodway, Liverpool, for defendants.

M. M., by her will, dated March 30, 1848, bequeathed her residuary personalty to her two sons, E. and T., upon trust for them, and her son J., and her married daughter A. T. equally. A. T.'s share was left to her for her life, for her separate use, with a restraint on anticipation, and on her death to her children. M. M. died on March 31, 1848. In 1850 a family arrangement was entered into by two deeds, one a declaration of trust, the other a release, for the division of the testatrix's property among her chil dren. The release was executed by A. T., but not by her husband, and it contained a NEW SERIES, 41,-CHANC.

I

recital that "the testatrix during her lifetime advanced to A., the wife of R. D. T., with his privity and consent, the sum of 4001., in part of, and to be deducted out of, any money which the testatrix might leave by will to A. T. or her issue." The division of the property was made on the assumption that that recital was true; and it was said that T. M. had had his share, less a like sum of 4001. The trustees of the will had both since died and their legal personal representatives were defendants. A. T. died in 1870, leaving her husband and six children. The children filed a bill against the defendants to compel them to make A. T.'s share of the testatrix's property good, by the addition to it of the 4001., deducted in 1850-Held, that the recital was not binding on A. T. in her lifetime, and therefore not effectual as against the plaintiffs; that there was no such presumption in law as that above stated; that Mr. Taylor was not bound by the recital; and that the defendants must pay the 4001. or other the proper sum to the plaintiffs, with interest at 41. per cent. from their mother's death.

Mary Mathews, by her will dated the 30th of March, 1848, bequeathed the residue of her personal estate to her two sons, Edward and Thomas, upon trust as to one-fourth for her son Edward, absolutely; as to another fourth for her son Thomas, absolutely; as to another fourth for her son Joseph and his wife and children as therein mentioned; and as to the remaining fourth in trust to invest the same as therein mentioned, and "to pay the dividends, interest and annual produce of the same stocks, funds and securities unto, or permit the same to be received by, her daughter Ann, then the wife of Richard Dudley Taylor, during her life, for her separate use, without power of anticipation; and after her decease as to as well the said trust moneys as the interest thenceforth to arise therefrom, in trust for all and every the child and children of Ann Taylor, who being a son or sons should attain the age of twenty-one years, or being a daughter or daughters should attain that age or marry, if more than one in equal shares as tenants in common for the absolute use and benefit of such child or children respectively."

3 Y

Mary Mathews died on the 31st of March, 1848, without having revoked or altered her will, leaving Edward, Thomas, and Joseph Mathews, and Ann Taylor, her four children in the will named, her surviving.

On the 23rd of June, 1848, administration, with the will annexed, of the estate of Mary Mathews was granted to Edward and Thomas Mathews as the residuary legatees in trust named in the will.

Edward and Thomas Mathews prepared a general statement of the estate of the testatrix, from which it appeared that the clear residue of her estate not specifically bequeathed after payment of debts, funeral and testamentary expenses, amounted to the sum of 5,8211. 38. 5d. It appeared, however, that in arriving at that sum they took credit for a sum of 400l., which they alleged to be due to the estate from Ann Taylor. Edward and Thomas Mathews then proceeded to a division of the testatrix's estate on the footing of its being the sum of 5,821l. 3s. 5d.; but they deducted the sum of 4001. from the share bequeathed to them in trust for Ann Taylor and her children so as to make that share 1,055l. 5s. 10d. only; and they executed a declaration of trust dated the 1st of August, 1850, by which they declared that two several mortgage securities for 6001. and 4201. respectively, and the sum of 35l. 58. 10d. cash, should stand limited upon the trusts in the will declared of and concerning the one-fourth part of the testatrix's residuary personal estate settled upon Ann Taylor and her children.

Thomas Mathews died on the 12th of May, 1861, having by his will dated the 9th of August, 1860, appointed his brother Edward and the defendants, Edward Cartwright and Joseph Proffitt, his executors; and his will, together with a codicil thereto, was duly proved by the defendants, Edward Cartwright and Joseph Proffitt alone, on the 26th of June, 1861.

Edward Mathews died on the 17th of April, 1869, having by his will dated the 21st of September, 1868, appointed his nephew, the defendant John William Mathews, and the defendant Edward Cartwright, his executors; and his will, together with a codicil thereto, was proved

by the defendants, John William Mathews and Edward Cartwright.

Ann Taylor died on the 8th of May, 1870.

Ann Taylor had issue seven children and no more, namely, the plaintiffs, Joseph, William Dudley, Moses, Edward, Mary Ann, and Elizabeth, who all attained twenty-one; and Richard Taylor, who died an infant.

On the death of Ann Taylor the plantiffs applied to the executors of Edward Mathews for an account of the one-fourth share of the estate of Mary Mathews, to which they were entitled. The executors furnished an account, from which it appeared that the estate had been dealt with in the manner herein before stated. The plaintiffs thereupon applied to the defendants as the representatives of Edward Mathews and Thomas Mathews, to make good to them the difference between the value of one-fourth part of the testatrix's estate, and the amount actually set apart to answer the bequest in favour of Ann Taylor and her children. The defendants refused to comply with that request, and by way of justifying their refusal they produced a release, purporting to be dated the 1st of August, 1850, and containing a recital that "Mary Mathews during her lifetime advanced to Ann, the wife of Richard Dudley Taylor, with his privity and consent, the sum of 400l. in part of, and to be deducted out of, any legacy or sum of money which the testatrix might leave by will to Ann Taylor or her issue." The release was executed by Ann Taylor, but not by her husband, although he appeared to have been made a party to it. The six children of Ann Taylor thereupon filed the bill in this suit stating the facts as above, and that the defendants relied upon the release as a bar to the plaintiffs' claim. The plaintiffs, however, submitted that they were not bound thereby; nor had they in any manner acquiesced in the mode in which the trustees of the will of Mary Mathews dealt with her estate. The bill then prayed a declaration that Edward and Thomas Mathews were bound to have set apart and held in trust for Ann Taylor and her children one equal fourth part of the clear residue of the estate of Mary Mathews, and that the

estates of Edward and Thomas Mathews were now jointly and severally liable to make good the difference between the value of one equal fourth part of such residue, and the amount actually set apart by them in trust as aforesaid;

to

That the defendants might be ordered pay the amount of such difference to the plaintiffs out of the estates of their respective testators, or in case they should not admit assets sufficient for the purpose, then that the estates of their respective testators might be administered under the direction of the Court.

That if necessary, the estate of Mary Mathews might be administered, and the trusts of her will carried into execution under the direction and decree of the Court; and that the defendants might be ordered to pay the costs of the suit.

The defendants by their answer said that they believed the 400l. was advanced by the testatrix to Ann Taylor on the occasion of her marriage, or shortly after that event; but that, owing to the length of time which had elapsed since the death of the testatrix (and which lapse of time, they submitted, was a fatal bar to the plaintiff's claim), they were unable to speak with certainty on the matter. Their knowledge in reference to the estate of the testatrix was derived from the accounts already mentioned-the declaration of trust and the release-the accounts of the solicitor who wound up the testatrix's estates-and certain memoranda, from which it appeared to have been admitted by all parties that the sum of 4001. had been advanced by the testatrix to her daughter-the solicitor's bill of costs, and the fact that a like advance of 4001. had been made to Thomas Mathews, and, by his consent, deducted from his share. They further said they believed that Ann Taylor during her life received interest only on the sum of 1,055l. 58. 10d.; and that the plaintiffs had received the interest on the two mortgage debts appropriated as the share of the children of Ann Taylor in the residue, since Ann Taylor's death.

Mr. Taylor deposed that the belief of the defendants that a sum of 400l. was advanced to his late wife, Ann Taylor, by the testatrix, was not founded on fact;

for that no such sum was advanced to his late wife by her mother, either on the occasion of her marriage with him or shortly afterwards, or to his knowledge or belief at any other period; nor was it ever admitted but had always been denied by him that the same or any other sum was ever so advanced by the testatrix, either to his wife or to him; and he said that he refused to sign the statement of accounts of the estate of Mary Mathews, because thereby Ann Taylor was charged with the sum of 400l.; and because the accounts did not contain a full and true statement of such estate which he then believed, had reason to believe, and still believed was of much larger amount than such statement represented it to be. That he was asked to execute the deed of release, dated the 1st day of August, 1850, but declined to do so; as well on the general ground that the whole of the estate of Mary Mathews had not been accounted for, as also on the special ground that it was sought to charge the share of the estate of Mary Mathews, to which his wife and children were entitled, with the sum of 4001. before mentioned or referred to, and to deduct the same therefrom; and that the statement in the deed of release contained with respect to such a sum having been advanced to his late wife as therein stated, was untrue and without foundation:-And he said that, though the deed of release was, he believed, executed by his late wife, the same was so executed by her notwithstanding the statements contained therein were not true, solely for the purpose of maintaining a good understanding between herself and her brothers Edward and Thomas Mathews who were the trustees on her behalf under the will; and particularly with the former, who was a bachelor of large property, and whose displeasure she was desirous not to in

cur.

Mr. Greene and Mr. Macnaghten, for the plaintiffs.

The principal defence to this bill is the recital in the release. But the release of a married woman cannot estop her—and, a fortiori, this release will not bar the plaintiffs, who now own the corpus of that share to which their mother (the

alleged releasor) was only tenant for life.

The defendants also rely on lapse of time and the production of the settled accounts of the testatrix's estate.

As to lapse of time: this is a breach of trust, to which lapse of time is no answer; and as to the accounts, the plaintiffs were no parties to them, and cannot, therefore, be affected by them.

The plaintiff's case is therefore a very simple one. Assuming the 4007. to have been in fact paid to Ann Taylor; still it was so given by the testatrix to her, that it ought not to have been deducted from her share

Holt v. Frederick, 2 P. Wms. 356; without an express agreement on the part of Mrs. Taylor and her husband with the testatrix to that effect. But there was no such agreement.

Mr. Karslake and Mr. Graham Hastings, for the defendants.

No doubt the release of a married woman will not estop her; nor, in such a case as this, be a bar to her children, claiming in remainder. But we have a right to take this case on the whole of the evidence in it; and from that we say the following inferences are irresistible:

1st. The recital in the release and the execution of the release by Mrs. Taylor, the memoranda and accounts, are all proofs-and to be admitted as suchthat the 400l. was actually paid by the testatrix to her daughter.

2nd. That as the testatrix died the day after she made her will, the 4001. must have been paid previously; and if so, it was an advance which on the authorities is to be taken to have been made by the testatrix in satisfaction, or by way of ademption, pro tanto, of her daughter's

share under the will

Kirk v. Eddowes, 3 Hare 509; s. c. 13 Law J. Rep. (N.S.) Chanc. 402;

Powys v. Lord Mansfield, 3 M. & Cr.

359; s. c. 7 Law J. Rep. (N.S.) Chanc. 9;

Sug. Real Property, Ca. in H. L. 128;

Hopwood v. Hopwood, 7 H. L. Cas.

728; s. c. 29 Law J. Rep. (N.S.) Chanc. 747; reversing 22 Beav.

488; s. c. 26 Law J. Rep. (N.S.) Chanc. 292;

2 White & Tudor's L. C. in Eq.
350;

Upton v. Prince, Cas. temp. Ld.
Talbot, 71;

Stapilton v. Stapilton, 1 Atk. 2. Then further we say as to lapse of time. This is not an ordinary breach of trust case. The defendants are only the legal personal representatives of the original trustees of the will. Moreover, there is no legal personal representative of the testatrix before the Court.

The Court will not therefore now disturb the family arrangement of 1850—

Bentley v. Mackay, 31 Beav. 143;

s. c. 31 Law J. Rep. (N.S.) Chanc. 697;

Clifton v. Cockburn, 3 M. & K. 76. The stated accounts, if not binding on the plaintiffs, at all events, when taken in connection with the other evidence, shew that Mr. Taylor is bound by his wife's acts-and so, we contend, should the plaintiff's be.

Mr. Greene, in reply.-The plaintiffs were throughout the transaction in question reversioners only, and

The Life Association of Scotland v. Siddal, 3 De Gex, F. & J. 58 shews that where a trust is definite and clear (as this is) a cestui que trust will not be held to have sanctioned a breach of trust, merely on the ground that while his interest was reversionary, he knew of the breach of trust and did not interfere. Still more when (as here) the plaintiff's could know nothing of the facts of the case, till Mrs. Taylor's death in 1870; after which, in 1871, they file their bill in this suit. It is unnecessary to shew by any argument that Mr. Taylor is not bound.

The cases cited as to ademption have no application to this one. There is no evidence of any such advance as that on which the defendants insist; and, on the whole case (however hard it may seem upon them), they must make good the plaintiffs' property.

WICKENS, V.C.-Mary Mathews, the testatrix in this case, died on the 31st of March, 1848, having, by her will dated

the day before her death, bequeathed one-fourth of her personal estate to her daughter, Ann, for life for her separate and inalienable use, and on Ann's death to her children, who, being sons, should attain twenty-one, or daughters marry. The other three-fourths she bequeathed to her sons. Administration with the will annexed was granted to Edward and Thomas Mathews, two of the other residuary legatees, there being, I suppose, no appointment of executors. Ann died in May, 1870, and the plaintiffs, her children, who attained twenty-one at various times between the 20th of April, 1857, and the 13th of April, 1867, filed this bill in 1871. On such a bill, if proOn such a bill, if properly framed for that purpose, the plaintiff's would have been clearly entitled to a decree for administration, though if the administrators, with the will annexed, had wound up the estate shortly after the testatrix's death, and relied on their memories at that time, the Court would have taken care that they should not suffer by the loss of vouchers, and probably have fixed the plaintiffs with all the costs of the suit, if the accounts had been fairly submitted to the plaintiffs, and in the result were not misplaced.

In the present case it appears that two years after the testatrix's death an account was taken, by the result of which the clear residue as received by the administrators was ascertained at 5,0211. 38. 5d. In 1850 a division was made on that footing. A share less than onefourth was attributed to Ann and her children, and a share less than one-fourth to her brother, Thomas, another residuary legatee, and one of the administrators, on the ground of alleged advances of 4007. each to those two. The other brothers took each a full fourth of the estate, after including in it the alleged advances to Ann and Thomas. That division, it should be observed, was embodied in certain deeds dated in August, 1850, of which those in evidence are a declaration of trust of certain securities which were set apart to answer the share of Ann and her children, and a release to the executors purporting originally to have been made by Ann and her husband, and to contain a covenant for indemnity

by the latter, but which Ann's husband refused to execute. It was argued that he was bound by it, but on no valid or even plausible grounds.

What the plaintiffs now seek to do, though the bill is not quite aptly framed for the purpose, is to adopt the statement of the amount of residue, and to rectify the principle of division. Their bill is not one to administer the trust of any deed executed at the time of the division. Nor can the estate be administered under it since there is no personal representative of the testatrix before the Court. Hence I conceive it was demurrable for want of parties. But those difficulties which are merely technical may, I think, be got over in the interests of justice, and I may consider the question (which was fully argued) whether the division must not be taken as against the plaintiffs, who were no parties to it, to be erroneous?

Of course the assent to it of a married woman, who was tenant for life without power of anticipation, could not bind her children entitled to the capital in remainder; and as the division of the estate on which it proceeded was not prima facie the proper one, that division, if sustainable at all, must be so independently of the effect of the release. In order to sustain it, reliance was placed on a recital in the release (and in the declaration of trust also), which is in the following words "Whereas the said Mary Mathews during her lifetime advanced to the said Ann, the wife of the said Richard Dudley Taylor, with his privity and consent, the sum of 4001. in part of and to be deducted out of any legacy or sum of money which the said testatrix might leave by will to the said Ann Taylor or her issue."

It was argued that that recital is evidence that an advance of 4001. was made to Ann, with the intention that it should go in diminution of any share to be given by a will afterwards made, to herself or her issue. It seems to me clearly not to import an advance to Ann while unmarried, or an express contract by her, whether married or unmarried, that it should be accounted for in that special way. There is no presumption of law that the payment of a sum of money to a child (even by a father) before the date of the