Page:The English Reports v1 1900.pdf/1418

In consequence of this decree, a report was made by the Master, bearing date the 10th of August 1771, whereby he certified that he had taken the accounts directed by the decree; and by which report and the schedules thereto, it appeared, that the testator's personal estate, and the rents and profits of his real estate to that time, consisted of £2423 10s. 9d three per cent. annuities, then standing in the Accomptant General's name, to the credit of the cause, which had been purchased by the executors with part of the personal estate, and of a sum of £138 9s. 5d. in the hands of the said John Liotard; and that out of these sums was to be paid to William Wright, £1318 12s. 8d. which was due to him for a legacy left to the said Dorothy Atkyns; and that the costs of the suit, amounting to £222 2s. 11d. were also to be paid out of the said sums. These several sums were accordingly raised and paid by sale of a sufficient part of the three per cent. annuities, pursuant to an [412] order of the court, of the 20th of December 1771, so that the clear surplus of the testator's personal estate, and the rents and profits of his real estates to that time, was reduced to £571 4s. 1d. Bank three per cent. annuities, and the £138 9s. 5d. in the hands of John Liotard.

It also appeared by the report, and the schedules thereto, that the gross annual rent of the said manor of Coates, and the said estate at Pinbury Park, in Gloucestershire, devised for the benefit of his younger children, amounted to £143 3s. and that the deductions thereout for quit-rent, taxes, and repairs, (communibus annis) amounted to upwards of £10 a year; that there was issuing and payable thereout, during the life of the said Elizabeth Fonnereau, a clear annuity of £120. And that the said William Wright had been appointed guardian of the testator's younger children, and also of the appellant.

On the 16th of June 1774, Robert Atkyns, one of the testator's younger children, died under the age of 21 years, and without issue; and thereupon his right and interest in the real and personal estates of Edward Atkyns his father, survived to the respondents, John and Mary Atkyns.

The freehold and leasehold estates, directed to be sold by the decree, were not put up to sale, the friends of the testator's younger children thinking it more for their advantage to wait till the said annuity of £120 should fall in, which did not happen till August 1778, when Mrs. Fonnereau died, and the infants should attain their respective ages of 21 years, and the rather, as it was an ancient family estate.

The reversion of the Swell estate fell into possession in 1770.

In Hilary term 1774, an ejectment on the several demises of the appellant and of the respondent John Liotard, the surviving trustee named in the will of Edward Atkyns the father, was brought for the recovering the Swell estate, the parties in possession refusing to deliver it up; and upon a trial at the bar of the Court of King's Bench, in Easter term 1775, a special verdict was found therein, which was argued several times, and in Michaelmas term 1777, judgment was given in favour of the title of the testator Edward Atkyns thereto.

The respondents John and Mary Atkyns, the only surviving younger children of the testator Edward Atkyns, then infants, by their next friend, in March 1778, filed their supplemental bill, in the Court of Chancery, against the appellant, and the respondent John Liotard the surviving trustee, and against the said William Wright, guardian to the infants, claiming the Swell estate, by virtue of their father's will, and praying that the same might be sold, and the purchase money, together with the rents and profits, placed out for their benefit. And the defendants having put in their answers, the appellant insisted by his answer, that the said reversion in fee did not pass by the will of his father, to or for the benefit of his younger children, but that the same descended to him, as the testator's heir at law.

[413] The cause came on to a hearing on the 19th of March 1778, before his Honour the Master of the Rolls, who, after giving directions for taking the accounts of the said Swell estate, and appointing a receiver thereof, was pleased to declare, that in order to enable the court to give proper directions relating to the said estate, called the Swell estate, any of the parties were to be at liberty to proceed at law for recovery of the possession thereof, or to establish his or their right thereto.

But to save the expence and delay of a trial at law, the parties appealed from this decree to the Lord Chancellor Bathurst, in order to have a case directed for the opinion of a court of law; and the same came on to be heard before his Lordship on the 16th day of May 1778, when he was pleased to order, that the decree should be varied, so