1819.

NOBL

quest out of the testator's personal estate; but that it ought to be deducted from the said bequest-charged the contrary, and prayed a decree and others accordingly.

The defendants Lord Henley and Sir J. B. Burgess, by their answer, submitted the questions of the right of the parties to the judgment of the Court, and particularly whether any duty was payable on the residuary bequest under the 45th Geo. III.; and if so, whether that bequest were a legacy within the meaning of the exonerating clause of the will. They stated that they had very considerably reduced the amount of the testator's personal estate, by having made large payments to the next of kin, which had rendered it insufficient to satisfy the 2000l. and 20,000/.; and submitted that therefore it had become necessary that a sale of the estates should take place as soon as possible for their indemnity, more particularly as landed property had become considerably decreased in value: and that they ought to be permitted to retain the rents and profits until the same should be sold.

The cause came on to be heard on the 29th April, when

Martin and Newland appeared for the plaintiffs, and

Fonblanque and Belt for the defendants, the trustees and executors.

Lord HENLEY and others.

1819.

NOEL and others

o.

Lord HENLEY and others.

January 19.

Dauncey, Wingfield, Shadwell, and Lovat, for the heirs at law and next of kin.

West, for the infants interested under the will, and

Longley, for defendants to a supplemental

bill.

The Court having decreed the will to be established and the trusts to be performed, referring it to the Deputy Remembrancer to make the necessary enquiries, and take the usual accounts: the Deputy Remembrancer on the 18th December, 1818, made his report, and the cause now came on for further directions.

Fonblanque and Belt for the trustees, objected in limine that the Court could not proceed on the present report, till all the estates devised for sale should be sold; and they submitted that the only regular course was to move for leave to make a separate report, or for a reference to ascertain whether it would be proper that any part of the estates not yet sold should be sold; but on that

The Lord Chief Baron observed, that although the objection was a proper one on the part of the trustees, and that the course suggested would have been the more regular proceeding, he still hoped that the objection might be overcome; for, as in this case, it was quite clear that the money already brought into Court, arising from the sale

of

1819.

NOEL and others

and others.

of such part of the estates as had been sold, was more than sufficient to pay all the incumbrances, debts, legacies, and expences (and if there were not, nothing could have been done even on a se- Lord HENLEY parate report); and as therefore no mischief could arise from proceeding without the final report, he would not put the parties on an objection of mere form to the inconvenience of so long a suspension of the good effects, to all the persons interested in the property, of discharging it from the burthen of debts and legacies; and there being enough in Court for that purpose, he should consider himself at liberty to order that the Deputy Remembrancer go on with the decree, which could however be suspended from time to time, on application to the Court, as often as there might be reason for it, looking only to the exigencies of the will.

Martin and Newland for the plaintiffs, then submitted to the Court, that the plaintiffs who were tenants for life of the trust funds, were by the express words of the will, and on the principle laid down in the case of Sitwell v. Bernard (a), entitled to the rents and profits of the devised estates till sale; for they contended that, from the language of the will, it was clear that the testator intended to benefit the plaintiffs Noel and Anna Catherina Biscoe very largely—that the words of the bequest shewed that the legacy of 30001, was to be paid out of the general pro

(a) 6 Ves. 520.

duce

1819.

NOEL

and others

and others.

duce of the estates, whether that were the pro duce of the sale, or of the rents and profits, the legacy having been declared to be intended to Lord HENLEY bear interest from the testator's death; and such interest must necessarily arise from the rents and profits. In Sitwell v. Bernard the rule is laid down decisively, that where a residue is given after various legacies, those legacies shall be payable at the end of a year from the death of the testator: the Chancellor there holding that convenience was to be called in to aid the construction of wills, as to the commencement of the period of enjoyment by the tenant for life; that the beneficial enjoyment is not to be postponed by the accidental difficulties, which, in most cases, present themselves to impede the early execution of wills, and the putting the property, of whatever nature it be, into a disposable state; and that, where that could not be done for any time, the end of the year is to be taken as the period at which it is to be rendered beneficial. There being therefore nothing in the will indicative of any intention on the part of the testator that the surplus rents and profits of the estates, devised to be sold, should accumulate to form an aggregate fund, they urged that the plaintiffs Noel and Biscoe were entitled to a proportion of the rents and profits, if not from the death of the testator, at least from the end of the year after.

Fonblanque and Belt: Benyon, Pepys, and Longley, contended, on the other hand, that the present case was distinguishable from Sitwell v. Ber

nard,

nard, because there the direction was imperative that the trustees should lay out the residue, with all convenient speed, meaning as speedily as possible; whereas here the testator had given them a full discretion by the words at such time or times, and in such manner as they should think most advantageous; and here also they had duties to perform, which rendered it desirable that they should augment, as much as possible, the produce of the estates devised to meet those duties. They urged therefore that the plaintiffs were not entitled until an actual sale should be effected, and in the mean time the rents and profits ought to form a fand in the hands of the trustees to answer the exigencies of the will.

[Lord Chief Baron.-I think the words " with all convenient speed," not in substance distinguishable from the directions given in this will.]

Martin having replied,

The Lord Chief Baron stated, that (without intending at present to give a final opinion on the question) he considered this case to be within the rule of Sitwell v. Bernard: and that it is the duty of Courts to carry into execution, as far as they can, the directions of the testator, according to what may be collected from the language of the will. The words (said his Lordship) in this devise, directing the estates to be sold "at such time or times after the testator's decease, as to the trustees should seem most advisable," I consider as equivalent to, "with all convenient speed," and

the