Mr. Harrison on the part of the defendants, the plaintiff says, "It must be by the gradual reduction of the large salaries, that our great saving must be made. I have been through the list of servants, &c., and I think some reduction may take place, but of trifling amount in comparison with the performers' salaries." It is clear that it was by a saving in the performers' salaries, that the plaintiff's connexion with the Dublin theatre had enabled him to reduce the expense 2001. a-week in the year 1820-21. In the exhibit A, before referred to, he assigns as a reason for that reduction, that, by keeping a theatrical force in Dublin, ready at any time to be transplanted, he could of course do with a smaller stationary company at Covent Garden.

Upon the whole, therefore, the defendants appear to me to have altogether failed in the proof of their allegation, that they were misled by the plaintiff's representations with respect to permanent saving in the expense of the theatre.

Mr. Harrison, in his evidence, states, "that the plaintiff repeatedly assured him that the theatre had made profits to the extent of 10,000l. in each of the years, 181920, and 1820-21; and that, in consequence thereof, 20,000l. or thereabouts of the old debt of the theatre had been paid off, and very little new debt contracted." If Mr. Harrison's memory in this respect is to be considered as correct, it is not, and cannot be denied that the plaintiff was guilty of a misrepresentation. In the season of 181920, so far from there being a profit of 10,000l., there was, in truth, a great loss; and, although it be true that about 20,000l. of the old debt was paid off in the years 1819-20 and 1820-21, and comparatively little new debt contracted, yet it was so paid off, not by profits only, but by the sale of two boxes, which produced 10,000l. and paid off a debt of 12,000l. Upon that point it is first to be observed, that the defendants who enumerate in their answer the other alleged misrepresentation of which they complain, do not in their answer take notice of the misrepresentation in this respect and as it is more clear and tangible than any other alleged misrepresentation which they have enumerated, it is not probable, if it had taken place, either that Mr. VOL. V. CHANC.

Harrison would have omitted to mention it to them, or that they would have omitted to state it in their answer. It is next to be observed, that it would be very singular that a representation should be made by the plaintiff, which is directly contrary to the facts, as they appear upon the face of Mr. Brandon's accounts, which were open to all parties, and must be considered as equally known to all; and further, that the exhibits G and H, before referred to, which contain Mr. Brandon's statement of the accounts of those seasons, and which were sent by the plaintiff to Mr. Harrison himself, only two months before Mr. Harrison supposes that representation to have been made to him by the plaintiff, do, in effect, represent the season of 1819-20 as a losing season to a great amount, instead of a profitable season to the extent of 10,000l. The clear amount of the receipts of that season, according to the exhibit H, are there stated at 55,8331. 14s., and the expenditure, at 41,0787. 4s.-not including either tradesmen's bills, or regular annual payments, which may be estimated together at least at 20,000l., making together an excess of expenditure, beyond the receipts of the season 1819-20, of more than 60007.

It may be observed also, that, in the letter F, which enclosed the exhibits G and H, Mr. Harrison is informed that the plaintiffis using every means he can to get the leases of the boxes settled, that the debts of Mr. Copeland, &c., due before August 1818, may, if possible, be discharged; thus distinctly informing Mr. Harrison that the debts to be paid off were to be discharged, not out of profits merely, as he supposes the plaintiff to have represented, but by the application of the price of the boxes. From all these circumstances, I am judicially bound to come to the conclusion, that Mr. Harrison has misapprehended the statement made to him by the plaintiff.

On the part of the defendants some other minor points of alleged misrepresentation were urged, which appear to have arisen from the different sense applied to the term "profits of the concern" by the plaintiff and by the defendants, and to which I do not think it necessary to refer more particularly. The plaintiff, very properly, as it appears to me, treated the reduction ot the debt as profit.

T

The defendants next charge the plaintiff with the concealment of a transaction of his father, in which he joined, with respect to the moiety of a box sold by his father to the late Sir Edmund Antrobus. It appears, that this box was let for alternate weeks to his Royal Highness the Duke of Gloucester, at a rent of 2101. In September 1817, the plaintiff and his father assigned the other moiety of this box to the late Sir Edmund Antrobus for the sum of 26251., the whole of which was received by the father. This sale was not communicated to the other proprietors of the theatre, but it was represented by them that the moiety of the box was let to Sir Edmund Antrobus for the term of twenty-one years, at the same annual rent of 2107., which was paid by the Duke of Gloucester for the other half of the box; and Mr. Harris, the father, during his lifetime, accounted with the other proprietors for this rent of 210l. as if paid by Sir Edmund Antrobus. Since the death of his father, the plaintiff bas, in like manner, accounted with the other proprie tors for this rent of 2107., as if actually paid by Sir Edmund Antrobus; and, on the occasion of the agreement between the plaintiff and defendants for the lease in question, the plaintiff continued to represent the box as let to Sir Edmund Antrobus at that rent of 2107.; and it was part of his agreement, that this rent, together with some other rents, paid to the proprietors of the theatre, amounting together to 13607., should be received by the plaintiff in the manner which I have before stated. The defendants, since they became the lessees of the theatre, have learned the truth of the case from Sir Edmund Antrobus; and they now insist upon that transaction as a reason for their being relieved from the lease.

The concealment of the real nature of this transaction was extremely incorrect, although it was the same thing to the other proprietors as if the box had been actually let to Sir E. Antrobus at the rent of 210l. a year. On referring to the table of annuities, it appears, an annuity of 210l. for twenty-one years, computing interest at five per cent. is worth in present money 26921. 7s. Sir Edmund Antrobus paid only 2625l.; so that Mr. Harris the father, in fact, took upon himself to account, with the other proprietors, for an annuity of 2101. for twenty-one years, with

out having received quite the full value for that undertaking; and his half of the property of the theatre was as good a security to the other proprietors, as if Sir Edmund Antrobus bad undertaken to pay the 2107. a-year. It was, however, the duty of the father and of the plaintiff to have disclosed the truth to the other proprietors, and to have given them the option of receiving either their proportions of the 26251. or. their proportions of the 210l. a year; and if the plaintiff had been well advised, he would have taken the occasion of this treaty with the defendants to state the actual fact. But still the concealment cannot be made to bear upon the validity of the agreement for the lease, unless the defendants can shew that their interests as lessees are prejudiced by that concealment. The plaintiff represented the box as let at 210l. a year; and, as far as regards the defendants, it is to be considered as let at that sum, the plaintiff being bound to account to his co-proprietors for that rent; and, his interest in the theatre being a full security for the payment of the rent, it must be indifferent to the interest of the defendants whether the 2107. is accounted for by the plaintiff, or is paid by Sir Edmund Antrobus. If the defendants prefer their proportion of the 26251. to their proportion of the rent, there is nothing in the agreement to prejudice that question.

The defendants next charge-that, on the 26th of August 1820, Mr. Harris the elder assigned the rent of 4501., which was and is payable for Lady Holland's box, to Messrs. Stephenson and Co., the bankers, by way of security for the sum of 6000l., which was due to the bankers from the proprietors of the theatre; and also for a further sum of 400l. which was due from himself individually; and that this transaction was also concealed from them, and forms another reason why they are entitled to be relieved from the agreement in question. Upon reference to the books and accounts of the theatre, there appears to me to be evidence which manifests that this rent of 450l. was actually paid to Messrs. Stephenson and Co.; and if the defendants did not really know the reason why it was so paid, they had thus sufficient notice of the transaction to put persons of ordinary prudence upon an inquiry, which would have given them

full information; and it is their own fault if they fail to make that inquiry. With respect to the security to Messrs. Stephenson and Co. extending not only to the debt due from the theatre, but to the private debt of Mr. Harris the father, it is to be observed, that, as far as regards Mr. Harris's private debts, it can affect only his share of the theatre, and is the same thing as if he had given a security for his private debt by a distinct deed.

The defendants in their answer made another charge-with respect to the alleged concealment of two silver tickets for admission, granted by Mr. Harris the father, to the late Mr. Coutts. It appears, upon the evidence, that, during the whole time that the defendants were interested in the theatre, persons were constantly admitted with these tickets, and they were regularly entered in the nightly accounts; and that charge was, in truth, abandoned at the bar.

The result of my opinion, upon all the facts of the case, is, that the plaintiff is entitled to a decree for the specific performance of the agreement as between the plaintiff and the defendants, Kemble, Willett, and Forbes; and I must refer it to the Master to settle a proper deed accordingly, having regard to the circumstance that, Mr. Const not being a party to the agreement, his interest cannot be affected by it. The Master must appoint a new trustee in the place of Mr. Harrison. The defendant Trotter, who is made a party only in his character of executor of Mr. White, was not, in my apprehension, a necessary party to this suit, and this bill must be dismissed against him, as well as against Mr. Const, with costs. The defendant Harrison, as trustee under the old deed, was a necessary party to this suit. Let his costs be taxed and be paid by the plaintiff, and, let the plaintiff's costs be also taxed, and, together with the costs to be paid by him to the defendant Harrison, be paid by the defendants Kemble, Willett, and Forbes, and let any party be at liberty to apply to the Court as they may be advised.

A testatrix, after devising her freehold and copyhold estates to trustees for sale, proceeds as follows: :- "I will and direct that the monies to arise from such sale be considered and taken as a part of my personal estate :" In a subsequent part of her will, she uses the following words :-" And I hereby direct, that, out of the monies to arise by such sale, and out of all other my personal estate, the several legacies hereinafter mentioned, be paid and satisfied:" she then gives several legacies, and, by the residuary clause in her will, she gives "all the residue of my personal estate, and of the monies arising from the sale of my real estate," in the manner therein mentioned. The personal estate was not sufficient to pay the legacies, and several of the legacies lapsed-Held, that the lapsed legacies fell into the residue, and did not go to the heir-at-law of the testatrix.

The legacies were not paid till the expiration of a year from the testatrix's death, during which time the funds, out of which they were paid, yielded interest and dividends :-Held, that such interest and dividends formed part of the corpus of the residue, and did not belong to the tenant for life of the residue.

Martha Clay, by her will, gave and devised all her freehold and copyhold estates, in the county of Essex, unto and to the use of Nicholas Martyn and Rawson Parke, their heirs and assigns, upon trust, to sell the same either by public auction or private contract; and she willed and directed that the money to arise from such sale should be considered and taken to be part of her personal estate; and she did thereby will and direct, that, out of the monies to arise from such sale, and out of all other her personal estate, the several legacies therein mentioned should be paid and satisfied: that is to say, to Lydia Ward, wife of Francis Ward, esq., of Derbyshire, 500l., to Elizabeth Cooke, widow, of Hoxton, the like sum of 500l., to Sarah Kensall, wife of Francis Kensall, of Hackney, 500., to the before-named Nicholas Martyn 500., to each of his five children, namely, Lydia Martyn, Grace Martyn, Hannah Martyn,

John Lee Martyn, and Richard Lomax Martyn, the sum of 1000l., to Elizabeth Parke, wife of the before-named Rawson Parke, and one of the daughters of John Holmden, deceased, the sum of 1000l., to Lydia Amphlett, widow, (meaning plaintiff, Lydia Amphlett,) the other daughter of the said John Holmden, 1000l., to Eleanor Ward, wife of Townley Ward, esq., one of the daughters of William Hucks, deceased, 1000l., to her sister Dorothea Barnetta Gibbs, 1000l., to their brother Joseph Hucks 10007., to their brother Joshua Hucks 1000l., to Mary Graham, one of the daughters of George Peck, deceased, 1000l., to her sister Elizabeth H. Hambledown, of Romford, 1000l., to their sister Ann, the wife of Mr. George, a tinman, in Oxford-street, 1000l., to their brother George Clay Peck, chemist, at Chelmsford, 1000l., to his brother John Peck 1000l., to his brother George Peck, of Litchfield, 1000l., and to their brother Charles Peck 1000l., to each of the testatrix's servants, who should be living at the time of her decease, 501.; and all the residue of her personal estate, and of the monies arising from the sale of her real estate, the said testatrix gave and bequeathed to the before-named Nicholas Martyn, his executors, administrators and assigns, upon trust, to pay the interest thereof to the before-named Elizabeth Parke for her life, for her separate use, and, after her decease, upon trust, to pay and divide the capital to, between, and amongst all and every the child and children of the said Elizabeth Parke, born and to be born, equally share and share alike, in manner therein mentioned, with remainders over.

Martyn and Parke were appointed her

executors.

Three of the legacies of 500l., and three of the legacies of 1000l., lapsed by the death of the legatees in the lifetime of the testatrix. The personalty had not been sufficient to pay the legatees, and the real estates had been sold.

The principal question was, whether the lapsed legacies went to the heir-at-law, or passed under the residuary clause.

Mr. Sugden appeared for Robert James Parke, the heir-at-law, and cited Cruse v.

Barley (1), and Jones v. Mitchell (2). As the personalty was insufficient for the payment of the legacies that had not lapsed, the legacies that had lapsed were, in fact, part of the produce of the real estate, and must therefore go to the heir.

Mr. Horne and Mr. Boteler, for the plaintiffs, who were persons interested under the residuary disposition, cited Mallabar v. Mallabar (3), and Durour v. Motteux (4).

The Vice Chancellor.-Upon the particular language of the will there arises this question, whether the testatrix is to be considered as having intended that the monies arising from the sale of the real estates should have all the same qualities as if at her death they had been part of her personal estate; or whether, that, for the purposes of her will only, those monies should form a common fund with her personal

estate.

The question is, whether, on the failure of a particular gift, that gift is to fail for the benefit of the heir-at-law pro tanto, or only for the benefit of those who are interested in the personal estate.

The first two passages import an intention that the monies should be considered as personal estate at her death. The first passage is, "I will and direct that the monies to arise from such sale be considered and taken as a part of my personal estate;" that is, to be taken as if actually part of her personal estate at her death. Next, she says, " and I do hereby direct, that, out of the monies to arise by such sale, and out of all other my personal estate, the several legacies hereinafter mentioned be paid and satisfied; again treating these monies as part of her personal estate.

In the third passage she plainly disconnects them, and treats the monies arising from the sale of her estates as a fund distinct, at her death, from her personal estate, and confounded only for the particular purposes of her will.

The first two passages import an intention that the monies should be considered as personal estate at her death: the third

(1) 3 P. Wms. 20.

(2) 1 Sim. & St. 290. (3) Ca. Temp. Talb. 78. (4) 1 Ves. sen. 320.

passage leans the other way; and it is only from deference to the two cases of Durour v. Motteux and Mallabar v. Mallabar, that I come to the conclusion, that this testatrix had in her view the improbable intention that the monies, arising from the sale of her real estate, should, for purposes that could not possibly be foreseen by her, be consi dered as personal estate at her death.

If I were to decide this question for the first time, I should give an opinion directly the other way. But I am compelled by those authorities to decide, that the lapsed legacy is to be considered as if it were wholly derived from personal estate, and, therefore, falls into the residue.

The Master, in taking the accounts, had allowed to the tenant for life the whole income of the real and personal estate of the testatrix; and, as the legacies and many of the debts were not paid till the expiration of a year from the testatrix's death, the tenant for life had thus the benefit of that year's income upon the monies with which those legacies and debts were afterwards paid.

The plaintiffs excepted to this part of the report, and, by their exception, they insisted "that Elizabeth Parke, as tenant for life, under the will of the said testatrix, who died on or about the 14th July 1803, was not entitled to the rent of the said messuages, farms, lands, and premises, at Great Bentley, or to the dividends on the said 100l. per annum long annuities, and 33331. 6s. 8d. new South Sea annuities, or to the fines, quit rents, and other manorial profits, arising from the said manor of Great Bentley, which arose or accrued within the first year after the said testatrix's decease, or to any part thereof; or, if she was entitled to any part thereof, it was to such proportion thereof only as the amount of the residue of the said testatrix's personal estate, and monies which arose from the sale of her real estates, bore to the amount of her debts, funeral expenses, and legacies, paid out of such personal estate and monies which arose from the sale of her real estates; and, therefore, the said Master ought not to have allowed the said Rawson Parke so much and such parts of the above-mentioned sums of money, retained by him to and for the said Elizabeth

Parke as aforesaid, as arose or accrued within the first year after the said testatrix's decease, or, at least, not more than such proportion as above mentioned, of so much and such parts of the above-mentioned sums of money as arose or accrued within the first year after the testatrix's decease."

Mr. Horne and Mr. Boteler were in support of the exception :

Mr. Hart and Mr. Garratt were in support of the Master's conclusion, and cited Angerstein v. Martin (5), and Hewitt v. Thorne (6).

The Vice Chancellor.-The pecuniary legacies were not paid till the end of a year from the testatrix's death; and the funds with which they were paid did, in the meantime, produce interest or dividends. The residuary estate is given for life, with remainders over to the children of the tenant for life, and the tenant for life claims the interest or dividends which accrued on these legacies as belonging solely to her. The testatrix clearly had not this intention. The plain meaning was, that the tenant for life should enjoy the income of the property, the capital of which was to descend to her children; and the interest or dividend of the fund with which the legacies were paid, belongs to the capital.

Dec. 5.-Some disputes arose with respect to drawing up the minutes of the decree; and the cause was again heard on the exceptions, and further directions, before Sir JOHN LEACH, Master of the Rolls.

Mr. Sugden and Mr. Andrews, for the heir-at-law.

In Collins v. Wakeman (7), a testator gave real estates to be sold, and the produce to be considered as part of his personal estate; and thereout, and out of his personal estate, gave legacies to his next of kin, heirs and others; he gave other estates to be sold, and the produce to be considered from thenceforth as other part of his said personal estate, and to be disposed of in the manner therein mentioned:-he then gave legacies,

(5) 1 Turner & Russell, 232.

(6) 1 Id. 242.

(7) 2 Vesey, jun. 683.