Page:The English Reports v1 1900.pdf/1183

executors, administrators, and assigns, a lease for thirteen years, to begin within six months after my decease, of all the said annuity or rent-charge of £200 per ann.

The testator having thus made a provision for his debts, legacies, and other payments, subjoined the following clause for the benefit of his wife, viz. "I give to my said wife and executrix, all my lands in the county of Hereford, within the lordships and parishes of Wellington, Moreton upon Lugge, Pype, Lyde, and Burghill, during her life, for an augmentation of her jointure." He then directed, that his executrix should immediately, with the first money which came to her hands, discharge all debts or payments due to any person whatsoever, in law or conscience, from him, or remaining then unpaid of the legacies given by his uncle Francis Perrott. And the testator, after reciting that he had agreed with one Cooper for building an alms-house, declared, that he had left £80 in his wife's custody at Wellington, to be expended for that purpose, and had paid the said Cooper £10 in part, and desired his executrix to see it built, according to the said agreement, and that the tythes at Wellington (except his woods) of £30 value, should be for ever settled towards maintaining the said almshouse; and if those tythes could not be settled, he desired his executrix to buy lands of that value, out of the issues and profits of his lands in Pembrokeshire and Haverford-West, and his tythes at Wellington, for the use of the said alms-house. He then devised all his lordships, lands, tenements, and hereditaments to his daughter the respondent Dame Hester, in tail; with remainder to his own right heirs.

In August 1682, the testator died, leaving his said daughter an infant; Dame Susan, the widow and executrix, proved the will, and possessed the personal estate, which was very considerable; and in July 1683, she married Sir Cyril Wych, the appellant's father; and they, as guardians of Dame Hester, received the rents and profits of her estate, during her minority.

In September 1690, Dame Hester attained her age of twenty-one; in October following, her mother died; and on the 4th of November and 6th of January of the same year, Sir Cyril Wych prevailed on Dame Hester, to sign and allow two several accounts of his receipts and disbursements, touching her estate, on the balance of both which accounts, there appeared to be a considerable [46] sum due to him; but neither of them were perused or examined by any person, on behalf of the young lady, nor were any vouchers produced, or delivered up to her.

In 1697, Sir Cyril Wych made a demand upon Dame Hester, for monies which he alledged to be due to him; whereupon, and in order to adjust all matters between them, she desired him to make up an account of the profits and management of her estate, during her infancy; this he accordingly did, without taking notice of either of the two former accounts; but some errors and mistakes appearing in the account so made up, and Sir Cyril insisting, that he had a right to retain out of the profits of the estate, the rent-charge of £200 for all the said term of thirteen years, Dame Hester, dum sola, exhibited her bill in Chancery against him, for an account of the rents and profits of her estate; and not apprehending that he would make any use of the two accounts which she had formerly signed, as he seemed to have waived them by delivering a fresh account, she did not, by her said bill, complain of, or impeach either of them. Sir Cyril, however, thought proper to plead both these stated accounts, in bar to the bill; and upon arguing this plea, it was allowed; but the consideration, how far he should be charged with the £200 annuity, was reserved till the hearing of the cause.

The respondents soon afterwards marrying, that bill was dismissed; and in Trinity term 1705, a new bill was exhibited by them against Sir Cyril in the Court of Exchequer, for an account of the rents and profits of Dame Hester's estate, during her infancy, and particularly to be relieved against the two stated accounts, as erroneous. To this bill, Sir Cyril likewise pleaded the two accounts, and that his late wife, being the executrix of Sir Herbert Perrott, was well entitled to the annuity of £200 per ann. so long as she lived; and that he, as her administrator, was entitled to it for the residue of the term, which was unexpired at the time of her death. But upon arguing this plea, on the 26th of January 1700, it was over-ruled by the unanimous opinion of the whole court.

The cause was first heard on the 14th of December 1707; when the principal point in question was, whether the devise of the annuity of £200 per ann. was intended for the proper benefit of Dame Susan, the executrix, in her own right; or whether there was not a resulting trust thereof, for the benefit of the plaintiff Dame Hester, the heir at law, after payment of the debts and legacies for which it was created? And