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the money due to him, whether principal or interest, and to convert all his personal estate into money; and without delay, and with all convenient speed, to lay out and apply the whole of all such monies, and the interest thereof to accrue and accumulate in the mean time, in and for the purchase of freehold lands and tenements of inheritance, upon trust to convey the same to the use of R. E. for life, without impeachment of waste; remainder to trustees to preserve, &c.; remainder to his first and other sons in tail male; remainder to B. E. for life; with remainders over, and appointed the trustees executors. And by a codicil, the testator gave full power to the trustees either to continue or to call in and lay out again, until proper purchases could be found, all or any part of his money at interest on such security, real or personal, or funds, as they should think proper. The testator died without altering his will; and, subsequently, on the death of R. E. the first tenant for life without issue, B. E. brought his bill, praying (inter alia) that he might be declared entitled to the interest of the residue of the testator Henry Entwistle's personal estate, from the death of R. E.

Upon the Master's report it appeared, that the first tenant for life had possessed a considerable part of the personal estate; and agreed to sell real estates of his own to the executors, to the uses of the will; and that there had been an opportunity of laying out part of the personal estate, which had not been so laid out; and that several parts of the personal estate were out upon mortgages, on which it had become impossible, for want of heirs and persons abroad, to get in the money. The cause coming on for further directions, it was declared, that the personal estate of the testator, Henry Entwistle,

not having been applied, as the same was got in and received, in the purchase of real estates, pursuant to the directions of the will, the plaintiff B. E. was entitled to receive the interest of such personal estate, or of such part thereof, which had been got in and received, and not so applied, from the death of R. E.; and it was ordered, that the several sums of interest, which appeared by the Master's report to have been paid in, being the interest reported to have accrued from the death of R. E., together with the future interest of the outstanding personal estate of the testator, until the same should be got in and laid out in the purchase of lands, be paid to the plaintiff B. E., when and as the same should be got in and received.

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It has been observed that in this case the register could not have correctly taken the declaration of the principle of the Court as to the interest of the tenant for life; for it was inconsistent with the declaration of the Court, since it was quite clear from the proceedings and the report that the person who got the rents and profits, though tenant for life in remainder, got the produce of property, which no diligence of the executors would have enabled them to collect and get in, as it appeared, that several parts of the personal estate were out upon mortgage securities, such in their nature that though at first probably very convenient securities, they had become otherwise, and it was quite impossible that they could be got in; the terms of the will, therefore, connected with the evidence, adverted to personal estate directed to be got in with all convenient speed, which, so far from being left outstanding through the negligence or dilatoriness of the executors, could not

© 6 Ves. 537.

by any possibility have been got in; and, therefore, as to that part of the personal estate, the principle in the decree must have been mistaken. The principle of the first part of the declaration was obviously right; for if the personal estate was got in, and not applied, it was dilatoriness, which should not prejudice any one. It was inaccurate in first supposing all the personal estate actually got in, and in the latter part, supposing that only part had been got in. But upon the report it appeared, not only, that great part had not been got in, but that with no diligence it could have been got in. The claim, therefore, of R. E., the first taker for life, was left out. But the decree afterwards proceeded to order, that B. E. should have the interest of that part of the personal estate which had not been got in. Lord Loughborough's opinion must have been, that the embarrassments created by the state of the property made impracticable the general purpose, that the first tenant for life should have the enjoyment of the interest of the property; but yet the effect might have been, that, by giving the tenant for life in remainder the interest, not only of that part of the testator's personalty which had been got in, but also of that which had not been got in, the purpose of the testator might possibly have been defeated entirely.

The circumstances, however, of this case were peculiarly complicated and embarrassing; and although relief was given to the tenant for life, yet no general principle appears to have been obtained for the solution of difficulties of this nature: the desirable object of equity seems to have been, to give the tenant for life that benefit intended him by the testator, without at the same time injuring the remainder-man, by wasting the property, in peremptorily calling in the testator's personal estate, or violating his intentions altogether with

regard to the accumulation of the interest, until the entire fund for investment in realty to be settled to the uses under the will had been collected; for it was very possible that by this accumulation of interest, the tenant for life might be deprived of his benefit under the will altogether; or, by enforcing the executors to take all the remedies competent to them for calling in the personalty, might injure the fund, and lessen the benefit intended for the remainder-man.

d

At length a case occurred, when it became absotutely necessary for the Court to arrive at some general doctrine to solve the difficulty, some general rule to regulate claims of this nature arising between the tenant for life and remainder-man. The facts were shortly these: Francis Sitwell, after bequeathing certain annuities and legacies, some bearing interest and others not, proceeds, in his will, to give all his personal estate to his executors, for the purpose of paying his legacies, annuities, &c., and subject and without prejudice to the payment of any legacies, annuities, &c., directs his executors or the survivor of them, with all convenient speed to lay out and dispose of the rest and residue of his personal estate in the purchase of manors, lands, tenements, or hereditaments of inheritance in fee simple in possession, to be settled as therein after mentioned; and orders that the interest of such residue of his personal estate should accumulate and be laid out in lands, to be settled in like manner as he had directed the residuum of his personal estate. The will then directed that the estates so to be purchased should be limited to the testator's eldest son, S. S., for life, with remainders to his first and other sons in tail male, &c.

d Sitwell v. Bernard, 6 Ves. 520.

D

The testator died leaving a very considerable personal property, part of which being out standing on mortgage could not be got in. A bill was filed by S. S. praying the necessary accounts; and that he might be declared to be entitled to the interest of the clear residue of the personal estate, not specifically bequeathed, so far as such residue had not been laid out in the purchase of lands under the will, from the end of one year after the testator's death, or from such other period as the Court should be of opinion he was entitled thereto; that such interest might be paid to him, and that such parts of the residue as had not been laid out in the purchase of lands, might be so laid out according to the will, subject to the payment of certain legacies, &c.; and that he might be let into possession of the estates, when purchased, subject to the annuities, &c. The decree directed the usual accounts, and payment of legacies, &c., and an enquiry, what steps had been taken to get in the personal estate outstanding upon securities that the Master should state the clear residue, and how it had been disposed of, and distinguish what part consisted of principal, and what part had arisen from interest, from the end of 12 months after the testator's death. It appeared by the Master's report, that some part of the personal estate was still out on mortgage, that the heir of the mortgagee being a minor, no proceedings could be effectually pursued, that the executors were induced to delay filing a bill by a proposal to pay the mortgage by a sale, which took place accordingly; but that many of the purchasers not being able to complete their purchases, the executors had been compelled to receive the money by instalments, conceiving that more for the benefit of the testator's estate than to file bills; but from the diffi

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