Page:The English Reports v1 1900.pdf/730

pleased to order and decree, that it should be referred to the Master, to take an account of the rents and profits of the real estate of Mr. Carrington, received by Lord Cadogan and Sir Henry Englefield, under the several deeds, settlements, and will of Mr. Carrington; and also an account of all the monies received by them, by virtue of any sale made of any part of the estates, and an account of all transactions relative to the trusts; in taking of which accounts, the Master was to make the defendants, the trustees, an allowance of all necessary expences and costs in the execution of the trusts; and that the Master should take an account of the debts and funeral expences of Mr. Carrington, and of the annuities and legacies given by his will and codicil, except such as were bequeathed to superstitious uses; and that the testator's debts and funeral expences, and the annuities and legacies given by his will, should be paid out of the trust estate. And it was further ordered, that the Master should take an account of the personal estate of the testator, come to the hands of Sir Henry Englefield, his only acting executor, and that such personal estate should be applied in payment of the legacies and annuities given by the testator's codicil (except as aforesaid); and in taking the account of the personal estate, the Master was to make Sir Henry an allowance of what should be found due to him for his annuity of £100 per ann. given him by the codicil, and all other just allowances, and the Master was to see a sufficient part of the personal estate set apart for answering the growing payments of that annuity. But if the personal estate should not be sufficient to pay the legacies and annuities given by the testator's codicil, then any of the parties were to be at liberty to apply to the court, touching any abatement that might be necessary to be made between the annuitants and legatees, as they should be advised. And his Lordship being of opinion, that the articles which were executed on the marriage of Mrs. Holford, and the subsequent appointment, were a good and valid appointment of one moiety of the estate, it was ordered that the Master, in taking the accounts, should carry one moiety of the surplus rents and profits from the death of William Smith, to the account of the respondent Peter Holford, and from the death of Charles Smith to the death of William Smith, the Master was to carry the surplus rents and profits to the account of the estate of William Smith, and from the death of Mr. Carrington to the death of Charles Smith, to the account of his estate; and as to the other moiety of the surplus rents and profits from the death of William Smith, the same was to be paid to the appellant. And it was ordered, that the Master should take an account of the personal estate of William Smith, come to the hands of the defendant Duane, his executor, and of his debts, funeral expences, and le-[497]-gacies; and his personal estate was to be applied in payment of his debts and funeral expences, in a course of administration, and then in payment of his legacies, and the residue thereof was to be paid to the appellant; and the like account was directed of the personal estate of Charles Smith; and after an application thereof in a course of administration, the residue was directed to be carried to the account of the personal estate of William Smith, and therewith to be paid to the appellant.

From this decree the appellant appealed (W. de Grey, C. Yorke) upon the following grounds: I. For that the decree had directed an account of the annuities and legacies given by the will of Mr. Carrington, except such as were bequeathed to superstitious uses, without excepting the annuity given by the codicil to Sir Henry Englefield; whereas that annuity ought likewise to have been excepted, the same not having been well charged in point of law upon the testator's real estate, and he not appearing to have intended to give the same out of his personal estate. II. For that the decree declared the articles executed on Mrs. Holford's marriage, and her subsequent appointment, to be a good and valid appointment of a moiety of the said estates, as against the appellant her heir at law; whereas the appointment was ineffectual and void, and the appellant was entitled in equity to one undivided moiety of the estate, under the deeds executed by Mr. Carrington in 1759, and to the other undivided moiety, as heir at law of his mother. III. For that if the appointment should be considered as valid and effectual, yet, even in that case, the appellant would be entitled to a moiety of his mother's moiety, as her heir at law; the appointment not having limited cross remainders of such moiety between her two daughters by her second husband Mr. Holford, and one