Page:The English Reports v1 1900.pdf/1441

6s. 0¾d. and John Wicker having paid the annuities of £100 to Elizabeth [447] Wicker, from the death of the testator to the 10th of October 1754, and of £10 to John Jones, to the 5th of July 1754, amounting in the whole to £380, there would be due to him, as the residue of the said £682 7s. 3d. the sum of £302 7s. 3d, which the Master thought fit to allow him; and the same being deducted from the aforesaid sum of £5835 1s. 7¾d. reduced the same to £5532 14s. 4¾d. and he further certified, that it had been admitted before him, that before the pronouncing the decree, John Wicker had sold all the freehold and copyhold estates of the testator, and that the money raised thereby was accounted for in the first schedule to the report, and that he had taxed the plaintiff's costs at £61 12s. 4d. and the defendant's costs at £68 14s. 8d. making together £130 7s. 0d. which being deducted out of the said £5532 14s. 4¾d. he certified there would remain of the testator's estate in John Wicker's hands, the sum of £5402 7s. 4¾d. to be placed out at interest, in government or real security, with his approbation, in the names of trustees, pursuant to the decree. This report was duly confirmed by order.

John Wicker the executor died in 1767, without leaving or having had any son; and William Mitford, and Sarah his wife, the respondent's father and mother, died in 1777, without having had any younger son, except the respondent, who attained his age of 21, on the 13th of November 1775.

John Wicker being seised, and possessed of or entitled to very considerable real and personal estates, duly made his will, dated the 24th of August 1766, whereby, after giving several specific and pecuniary legacies, and a small annuity, he subjected all his real and personal estate to the payment of all his debts and legacies; and after payment thereof, he gave and bequeathed the same to his executrix; and also the sum of £12,000 which he was entitled to raise on the estates, agreed to be settled on the marriage of his daughter, the appellant Dame Mary Broughton, with the appellant Sir Thomas Broughton, in trust to pay the rents and interest thereof to his said daughter for her separate use during her life and, after her decease, he directed that his executrix should pay the whole of his real and personal estate, in such manner as his daughter should by her will appoint; and he appointed his wife, the appellant Charlotte Wicker, executrix of his will. He afterwards made a codicil to his will, and thereby gave £12,000 to his daughter, to be by her disposed of amongst her younger children by the said Sir Thomas Broughton, in such manner and in such event as therein mentioned.

The testator John Wicker died without revoking his will and codicil, leaving the appellant Lady Broughton, his only child and heir at law; and, upon his death, the appellant Charlotte Wicker, his widow, duly proved his will and codicil in the Prerogative Court of Canterbury, and undertook the execution thereof, and possessed herself of his personal estate.

The sum of £5402 7s. 4¾d. reported by the Master to be the clear surplus of the testator William Wicker's estate, was not [448] placed out at interest in pursuance of the decree; but the testator John Wicker retained it in his hands and he paid the annuities of £100 and £10 to Elizabeth Wicker and John Jones respectively to the time of his death; and, after his death, the appellant Charlotte Wicker, as his executrix, or the appellant Sir Thomas Broughton, as being in possession of his estates, continued to pay those annuities.

The respondent conceiving himself to be entitled to the said sum of £5402 7s. 4¾d. and the interest thereof, from the time he attained his age of 21, subject to the payment of the two annuities, he on the 21st of December 1778, exhibited his bill in the Court of Chancery against the appellants, and against the said Elizabeth Wicker and John Jones the annuitants, and William Mitford, his elder brother, praying that the decree pronounced on the 21st February 1754, might be carried into execution, so far as was necessary, and that he might have the benefit of it; and that his right, as the only younger son of Sarah Mitford his mother, to the said sum of £5402 7s. 4¾d. might be declared that an account might be taken of the £5402 7s. 4¾d. and the interest thereof accrued due since he attained his age of 21, and of the arrears of the said two annuities of £100 and £10 accrued due during the same time: and that what should be found coming on the account, in respect of the £5402 7s. 4¾d. and the interest thereof, might be paid out of the personal estate of the testator John Wicker not specifically bequeathed, possessed by the appellant Charlotte Wicker; or in case of any deficiency of his personal estate, might be raised out of his real estate, by sale or mortgage of a sufficient part thereof; and after a deduction of what should be found coming for the arrears of the