these trusts, and the money was expressed to have been paid to B. Chaffer as trustee, and the receipt was signed by him alone, and he professed to extinguish the term and discharge the estate from the trusts; but the money was in fact applied for the partnership purposes of T. and B. Chaffer, and it appeared that the mortgagees knew, or had reason to know, of the intention so to apply it. By an indenture dated the 7th of July, 1855, T. and B. Chaffer mortgaged another part of the testator's estate to Sir J. Scarlett for 500l. This deed, which was prepared by the mortgagor's solicitor, the mortgagee having employed no separate solicitor, recited that the debts and legacies had been paid or provided for, and by it B. Chaffer surrendered the term, and both the Chaffers, as executors, released the estate from all legacies given by the testator's will. The 5007. was applied by the mortgagors to their own use. By an indenture dated the 20th of March, 1856, T. and B. Chaffer mortgaged parts of the testator's estate, together with other estates belonging to themselves, to Worrall, Darwell, and Howard, for 11,500l., and by another indenture of the same date they mortgaged the same property to the Craven Banking Company for 6,2377., being the balance due on the partnership account of T. and B. Chaffer. The first of these deeds (which was recited in the second) contained a recital that the trusts of the term had been performed, and in both deeds the term was surrendered and the estate released, as in Sir J. Scarlett's mortgage. The 11,5007. was applied principally in paying off other mortgages made by the Chaffers for their own benefit, partly of the testator's and partly of their own estates. previous mortgage, which was partly paid off and wholly extinguished upon the execution of Worrall's mortgage, had been given by the Chaffers to the Craven Banking Company in 1851, and the solicitors of the bank, being the same who afterwards acted for them in 1856, were then informed that the two legacies of 1,500l. each were unpaid. A By an indenture dated the 12th of October, 1857, T. and B. Chaffer mortgaged "The Town House Estate" to J. and W. Brennand, to secure 20007., part of a debt previously due from the partnership. The same solicitors acted for both parties in this transaction. After the first and before the second suit was instituted, both the Chaffers became bankrupt. The principal questions now raised were as follows:1st. Whether the legacies ever became a charge upon the real estate, the personal estate at the time of the testator's death having been sufficient to satisfy them. 2nd. Whether the legacy receipts amounted to an appropriation of the legacies. 3rd. Whether the mortgagees took the estate discharged from the legacies, either by reason of the trust for payment of debts, or, 4th. By reason of the representation of the trustee and executors that the trusts were satisfied. The following authorities were cited, viz., On the first point, Humble v. Humble, 2 Jur. (o. s.) 696; Juxon v. Brian, Prec. Ch. 143 (folio ed.); Watkins v. Check, 2 S. & S. 199; On the fourth point, Jones v. Smith, 1 Hare, 45; 1 Ph. 244; Storry v. Walsh, 18 Beav. 559; Jones v. Williams, 24 Beav. 47; Baily, Q. C., and Kay, for the plaintiff. Little, for Mrs. Temple and her children. Anderson, Q.C., Osborne, Q.C., Glasse, Q.C., Bazalgette, Q.C., E. Karslake, Pole, Renshaw, and S. Smith, for the several mortgagees. Eddis, for the assignees in bankruptcy. KINDERSLEY, V.-C., said, that it was a most inequitable proposition that, where legacies were charged by a testator upon his real in aid of his personal estate, residuary devisees, who were also residuary legatees and executors, might, after wasting the personal assets, set up the original sufficiency of those assets as a defence against the claim of the legatees to have their legacies raised out of the real estate; nor did the language of the will now before him, which mentioned Kindersley, V.-C. } 22 JUNE, 1863. HEWITT V. HEWITT. no particular time at which the sufficiency or insufficiency of the personal estate was to be ascertained, require such a construction, which, by depriving the legatees of their security, would defeat the primary intention of the testator. The question, however, was Practice-Plea-Covering too much-Leave to concluded by the case of Humble v. Humble; and upon the authority of that case, coinciding, as it did, entirely with his own opinion, he must hold that, as against Thomas and Benjamin Chaffer, the testator's real estate was liable to make good the legacies. The legacy receipts were not signed by B. Chaffer, as trustee of the legacies, but by the two Chaffers as executors, and were so signed merely for the purpose of passing the accounts. How then could they be evidence of an appropriation, which, in fact, was never made? The mortgagees, however, relied on the rule that a trust for payment of debts relieves a purchaser from liability as to the application of his purchase-money but here the trust was confined to the term, and the person whose duty it was to raise the money for that purpose was B. Chaffer alone, whereas the loans were made to the two Chaffers, and made upon the security of the fee simple. Again, the mortgagees had notice that the debts were paid, which distinguished the case from Johnson v. Kennett, and cast upon them the duty of inquiring as to the payment of the legacies. Then it was said, on behalf of some of the defendants, that the fact of B. Chaffer as trustee having declared the trusts to be satisfied and surrendered the term, and of the two executors having released the estate from the legacies, discharged it from these egacies in the hands of the mortgagees, and for this doctrine Storry v. Walsh was cited; but that was a case of a disinterested executor releasing the estate to the devisee, and was no authority in the present case, where the trustee and executors were themselves the devisees, and were interested in raising money for their own use. In the mortgage to Robinson and Birtwhistle the form had been gone through of paying the money to the trustee, and taking his receipt; but that was a mere conveyancing device, which could not avail them in the face of the evidence, that they knew, or had reason to know, that the money was to be applied for the use of the Chaffers. The other mortgagees had been content with the false assurances of the Chaffers that the trusts were satisfied, and they must take the consequences of their confidence. Moreover, all of them, except Worrall, Darwell, and Howard, had constructive notice through their solicitors of the legacies being unpaid. It must be declared, therefore, that the plaintiffs and the Temple family were entitled to have their respective legacies, with interest and their costs of the suits, raised out of the testator's real estate in priority to the several mortgages to the extent of the term of 800 years. amend. There has been no relaxation to the rule that a plea covering too much must be overruled. Leave to amend a plea is generally refused. This was an administration suit. The defendant had put in a plea and answer, which now came on for argument. The facts admitted by the answer were as follows:The testator had been a coal merchant on his own account, and a hop merchant in partnership with George Hewitt, a defendant, and had appointed his wife and George Hewitt executors and trustees of his will. George Hewitt acted for some days as agent for the widow in relation to the testator's estate, and afterwards the will was proved by her alone, George Hewitt renouncing probate and disclaiming all interest under the will. The widow then gave George Hewitt a power of attorney to get in the testator's estate, and they afterwards entered into partnership to carry on the testator's businesses in hops and coals. The bill prayed, besides the usual prayer in an administration suit, 1st. For a declaration that George Hewitt was liable jointly with the widow to make good the value of the assets of the testator applied for the purpose of the said partnership, and the profits thereof. 2nd. For a declaration that the residuary legatees were entitled to a lien on the partnership assets to that extent. 3rd. For a receiver. 4th. For an order that George Hewitt should deliver up to the receiver the assets and books, and be restrained from interfering with the debts and accounts of the partnership. 5th. And that the defendant should pay the costs. George Hewitt was also required by certain interrogatories to set forth accounts of the testator's estate. George Hewitt pleaded to all the relief sought by the said bill, and also to all the discovery sought by the interrogatories aforesaid, and for plea said that he neither was nor did he ever administer as executor of the testator. Baily, Q.C., and Ellis, for the plea, cited Milford on Pleading, 295 (4th ed.); Lord Derby v. The Duke of Athol, 1 Ves. sen. 205; and asked for leave to amend the plea by striking out so much as related to relief. Glasse, Q.C., and Kingdon, for the bill, were not called on. KINDERSLEY, V.-C., said, that even if it were true that George Hewitt was not and never acted as executor, the plaintiffs might still be entitled to some of the relief prayed against him. The plea, therefore, covered too much, and there had been no relaxation of the rule that such a plea must be overruled. The Courts very rarely gave leave to amend a plea, and his Honour did not consider that there was any necessity for doing so in the present case. Where a registered judgment creditor, made a defendant to a foreclosure suit, disclaims by answer, the course is to dismiss the bill against him without costs up to the filing of the answer, but with the costs subsequently incurred. And it makes no difference that he has made a previous disclaimer by letter. This was a foreclosure suit to which James Crisp had been made a defendant in respect of a registered judgment debt. Shortly after he was served with a copy of the bill, his solicitors sent the following letter to Mr. Dixon, the plaintiff's solicitor :— "63, Gracechurch Street, "23 Feb., 1863. "Gowing v. Mowbray and Others. "DEAR SIR,We are instructed to give you notice, on behalf of the defendant James Crisp, that he does not claim any interest in the premises mortgaged to the plaintiff, as in the plaintiff's bill in this suit is more particularly mentioned, and that he is willing to consent to the plaintiff's bill being dismissed as against him without costs up to the date of this notice, "Yours faithfully, "GREENHILL & LYNCH. "T. H. Dixon, Esq., 5 New Boswell Court." an answer, and accordingly, on the 26th of May, 1863, The plaintiff, however, insisted on Crisp putting in Crisp filed an answer, in which he set forth the above letter, repeated his disclaimer, and asked for costs since the 23rd of February. Elderton, for the plaintiff, moved to dismiss the defendant Crisp without costs, Appleby v. Duke, 1 Ha. 303; on appeal, 1 Ph. 272; Perkin v. Stafford, 10 Sim. 562. Robinson, for the defendant Crisp. The defendant has pursued the course marked out in the judgment in Talbot v. Kemshead, 4 K. & J. 93, and is entitled to costs since the letter of the 23rd of February. See also, Gurney v. Jackson, 1 Sm. & G. 97. STUART, V.-C., considered that the plaintiff was entitled to have on the record a disclaimer of the defendant Crisp, so as to authorise a foreclosure decree against him. Crisp, therefore, must pay his own costs up to the filing of the answer, but his Honour thought he was entitled to his costs subsequently incurred. Note.-See also, Ford v. Earl of Chesterfield, 16 Beav. 516, and the authorities there cited. Parent and Child—Gift by Child. Where the relation of two persons is such as to enable one to exercise an influence over the other, and the former obtains a considerable benefit from the latter, he must if the transaction is questioned, show by the clearest evidence, that the gift was freely and deliberately made. Where, therefore, a lady of about twenty-three years of age, gave about a third of her property to her father, and the father failed to show that the gift was made without any influence on his part, the transaction was set aside. Circumstances under which such a 'gift may be upheld. The plaintiff in April, 1859, became entitled under the will of one Sarah Davies, to 2107. in cash, and 4007. in the National Provincial Bank at Aberystwith. The 4007. had been placed on a deposit account by William Davies, and on his death, became the proAt this time the plaintiff perty of Sarah Davies. was about twenty-three years of age, and had entrusted the general direction of her affairs to her father, Thomas Davies, to whom, as admitted by his answer, she looked up with implicit confidence as the only relative she had of an age, or in a position, to 2107. cash, was invested in the purchase of a leasehold protect and assist her in the management of them. Soon after Sarah Davies' death, 2007., part of the house and cottage, which were assigned to Thomas Davies, and of which he had been in possession for some time, without paying any rent to the plaintiff. The circumstances under On the 30th of May, 1859, the 4007., about onethird of the plaintiff's entire property, were transferred into Thomas Davies' name. which this took place, were alleged by the bill, and the plaintiff's affidavit in support of it, to be as follows:-It was represented to her by Mr. Jones, an intimate friend of her father's, and cashier of the National Provincial Bank, that she must sign certain papers in order to transfer into her own name the 4007. in the bank, and also certain money in the funds, to which also she was entitled under Sarah Davies' will. On the 30th of May, she accordingly met Mr. Jones at the bank, who offered her eight or ten papers for signature. The plaintiff was then on the point of leaving Aberystwith by the steamer, and, therefore, had not time to read them all, but having read one or two, which appeared to be transfers of stock, she signed them all without reading the others. After they were all signed, Mr. Jones took up one of them, and told her, that by it, she had transferred the 4007. in the bank to her father. In September, 1859, previous to the plaintiff's marriage with the defendant, Joseph Davies, a settlement was executed, the effect of which was to give a life-estate in her property to her husband. This the plaintiff alleged was contrary to her instructions, which were that she should have the sole control during her life, and she asked to have the settlement reformed accordingly. Joseph, her husband, had compounded with his creditors, and the trustees to whom he had assigned all his property for their benefit, were made parties to the suit. The plaintiff, by her bill, sought to set aside these two transactions, and prayed a declaration that she was entitled to have the house and cottage bought with the 2007., and also the above-named sum of 4001. assured in conformity with the settlement as reformed. The defendant, Thomas Davies, by his answer, alleged that Sarah Davies had, shortly before her death, informed his wife of her having the sum of 2107. in the house, and had desired her to take it after her death as an acknowledgment of her attention. He, therefore, considered this sum as his wife's, and for that reason thought himself entitled to the house and cottage purchased with it. He admitted, however, that his daughter had never acquiesced in this view, and that she always considered the money as hers. The plaintiff's name had at first been inserted as purchaser in the assignment of the leaseholds, but it was afterwards changed for her father's by his direction, but without the plaintiff's knowledge. He now admitted that the gift of the 2107. was incomplete, and consented to give up the leaseholds. With respect to the 4007., the defendant insisted that the plaintiff had repeatedly expressed her intention of making a gift to him; that she met Mr. Jones, and signed the transfer for the purpose of carrying that intention into effect, and that she had afterwards expressed her satisfaction at having done so. To the reformation of the settlement no opposition was offered. Malins, Q.C., and Osborne Morgan, for the plaintiff. The gift of the 4007. is, under the circumstances, invalid, Archer v. Hudson, 7 Beav. 551; The gift was freely and deliberately made, and is, therefore, irrevocable. Rodwell, for the defendant, Joseph Davies. Elderton, for the trustees, under the composition deed. STUART, V.-C., said, that the main question in the cause was as to the validity of the transaction by which the defendant, Thomas Davies, obtained possession of the 4007. There were certain relations enabling one person to exercise an influence over another, the mere existence of which was sufficient to invalidate a gift made during their continuance, unless it were clearly shown that on the occasion of the gift the influence was in fact not exercised. Where influence was presumed, freedom from the influence must be proved. There were many ways in which it might be proved. If, for instance, the intention had been long cherished and often expressed, if the donor thoroughly understood the nature of the transaction, and had acted perhaps under the advice of unbiassed friends, in such a case the gift would be supported. But there must be nothing equivocal in the facts adduced to rebut the presumption to which the relation gave rise. In the present case the existence of the relation of parent and child, and of the influence arising therefrom was clearly proved. The father by his answer admitted that he had assumed the management of the plaintiff's affairs, and that she looked up to him with implicit confidence. While, then, his daughter thus implicitly relied upon him, he had been dealing with the 2007. in a manner which, on his own showing, was improper, and not in due discharge of his duties as her guardian. Though he thought the money was his wife's, he knew that it was claimed by his daughter; and yet, without her knowledge or consent, he had caused his name to be inserted in the assignment as the purchaser of the property in which that money was invested. That was only a month before the transaction relating to the 4007. With respect to the transfer of this sum, there was a direct conflict of evidence. After examining the evidence, his Honour came to the conclusion that the account given by the plaintiff was correct, and proceeded to say, that, even if there were any doubt on that point, the rules of the Court required that the presumption of influence should be clearly rebutted. The evidence of full knowledge and free-will must be unambiguous. If, when the doctrines of the Court required clearness, there was a doubtful conflict of testimony, the gift could not be upheld. His Honour then called attention to the following property, devised and bequeathed all the rest and observations of Lord Eldon in Hatch v. Hatch (9 Ves. | residue of his property to his wife Jeannette Blanchard, 296):her heirs, executors, administrators, and assigns, upon trust to sell the same and divide the proceeds between his six children therein named. The testator died on the 6th of September, 1851. His widow gave notice to Gatliffe of her intention to pay off the mortgage, and entered into a contract for the sale of the property comprised in it. It being "This case proves the wisdom of the Court in saying, it is almost impossible, in the course of the connection of guardian and ward, attorney and client, trustee and cestui que trust, that a transaction shall stand, purporting to be bounty for the execution of antecedent duty. There may not be a more moral act, one that would do more credit to a young man begin-impossible to complete the contract while the legal ning the world or afford a better omen for the future estate remained outstanding, this petition was prethan if a trustee having done his duty, the cestui sented by the widow, and one of the children beneficially que trust, taking it into his fair, serious, and well-entitled under the devise in Blanchard's will, praying informed consideration, were to do an act of bounty that the hereditaments comprised in the mortgage of like this. But the Court cannot permit it except the 19th of May, 1841, might be vested in W. W. quite satisfied that the act is of that nature, for the Gatliffe, for all the estate and interest formerly of reason often given; and recollecting that in discussing | Elizabeth Clark therein. whether it is an act of rational consideration, an act of pure volition, uninfluenced, -that inquiry is so easily baffled in a Court of justice, that instead of the spontaneous act of a friend, uninfluenced, it may be the impulse of a mind misled by undue kindness or forced by oppression." In the present case, the removal of the influence was not established, and the gift must, therefore, be declared invalid, and the defendant Thomas Davies must pay the costs of the suit, except so far as they were increased by the reformation of the settlement. A mortgagor devised his real estate to a trustee on trust for sale, the proceeds to be divided amongst certain persons named in the will. The original mortgagee having died, and her heir not being found, a petition was presented by the trustee and one of the cestuis que trustent for a vesting order under section 19 of the Trustee Act, 1850:: Held, that the trustee sufficiently represented the other cestuis que trustent, whose appearance was, therefore, dispensed with. An order was made, as prayed, on the 5th of June. 20 JUNE, 1863. Prendergast stated that the registrar refused to draw up the order, because the other cestuis que trustent under the will of Blanchard had not appeared on the petition. He submitted that under section 37 of the Trustee Act, 1850, their appearance was unnecessary. WOOD, V.-C., said, that if a bill had been filed, the widow of Carrick Blanchard, being a devisee in trust for sale, would under the new rules have sufficiently represented the parties beneficially entitled under the devise, and thought that she would also sufficiently represent them on petition. The order would therefore be drawn up. Wood, V.-C. 12, 23 JUNE, 1863. Re CLARK'S TRUSTS. Will-Construction-Implied Cross Limitations. Where a testator gave four-sixths of the proceeds of the conversion of his residuary realty and personalty to A, B, C, and D, for their respective lives, with re mainder to their children as they should appoint, and, in default to their children, with a limitation over in favour of children of the same parent, if any died under twenty-one, and, if females, unmarried, and if A, B, This was a petition for a vesting order under sect. 19 C, and D all died without leaving children, then in of the Trustee Act, 1850. On the 19th of May, 1841, certain real estate of Carrick Blanchard was conveyed to Elizabeth Clark in fee, by way of mortgage, to secure 8507. and interest. Elizabeth Clark died on the 6th of February, 1849, intestate as to the legal estate so vested in her. Subsequently to her death the beneficial interest in the mortgage became vested in W. W. Gatliffe; but the legal estate remained outstanding, and the heir-at-law of Elizabeth Clark could not be found. By his will, dated the 6th of September, 1851, Carrick Blanchard, after disposing of certain specific trust for other persons, and A died without ever having had any children :— Held, that cross-limitations should be implied, but only in the event of one of the tenants for life dying without having had any child, who attained a vested interest, and that consequently A's share was divisible in three equal shares in favour of the legatecs of the three other original shares. This was the hearing of cross-petitions for the pay ment out of Court of a fund representing one-sixth share of the proceeds of the conversion of the real estate, and the residuary personal estate of Richard |