Freetown, 26th May, 1936.

                            Cor. KINGDON and WEBBER, C.JJ., and YATES, J.

                                                              ADA BEIGH                               Plaintiff-Respondent

                    v.

Executor and Trustee-Indemnity of Trustee against expenses and/or improvements properly incurred-Executor charged with interest under testator's mortgage deed-Non-production of such deed-           Liability of executor in respect of personality.

  Held: No duty on executor to realise mortgage where realisation is not required for any testamentary purpose and the security is not in peril. In absence of production of deed Court below should not be asked to direct sale of mortgaged property. In absence of enquiry as to breach of trust or wilful default ordinary form of account not to be varied.

    Appeal allowed and case remitted to lower Court for further enquiries.

The facts of the case are sufficiently set out in the judgment.

C. D. H. During for the Appellant.

E. S. B. Betts (with him G. W. S. Ladepon Thomas) for the Respondent.

The following judgments were delivered :­WEBBER, C.j., SIERRA LEONE.

    This is an appeal from the judgment of Gray, j., of the Supreme Court of the Gambia, who gave judgment in favour of the plaintiff­ Respondent for the sum of £800 13s. 5d. and costs against the defen­dant-appellant.

     The plaintiff's claim was as a legatee under the will of job Beigh, deceased, to have the real and personal estate of the said job Beigh administered and an account rendered of what is due to the plaintiff under and by virtue of the said Will. The Will is dated 1st November, 1926, and job Beigh died on December 19th, 1927. The defendant is sued as one of the executors of the deceased.

    The original writ was issued on the 19th June, 1934, in which the plaintiff's claim was against two executors.

On the 28th June, 1934, there appeared an alteration of the writ numbered as Suit No. 19/1934, in which jean Pierre Beigh was added as co-plaintiff, and on the 15th November, 1934, nearly five months after, a further alteration of the caption of Suit No. 19/1934 was made, in which two more plaintiffs were added, namely joanna Beigh and Adelaide Fye. There is no record to show how these plaintiffs were joined-suffice it to say the action was finally heard and determined between Ada Beigh as plaintiff and Colin Shaw as defendant. The three co-plaintiffs, who were added, dropped out of the case, apparently satisfied with the accounts rendered and payments adjusted.

Appeal Court. March, 1936, Sessions. Judgment delivered 26May,1936.

Ada Beigh, who was the wife of the testator, was the largest beneficiary under the Will.

To her was granted :-

(1) A lot of land, No. 10 Leman Street, for the term of her natural life, with remainder to Father Superior of the Roman Catholic Mission at Bathurst.

(2) The whole of the amounts due on mortgage of 12 Hagan Street, Bathurst, that is to say, both principal and interest on it for her absolute use and benefit.

(3) All the goods in the shop at 17 Piston Street, Bathurst, the stock-in-trade and personal effects belonging to the testator in connection with or use for purposes of trade and the benefit of all contracts subsisting and all cash loan accounts.

There were other minor devises, but only with the above three was the action in the lower Court concerned.

After hearing the parties the learned Judge, in an exhaustive judgment, ordered :-

(a) An enquiry as to the value on the 19th December, 1928, of the security comprised in the indenture of mortgage of 12 Hagan Street.

(b) An account of amount due under the said mortgage up to date and of moneys in hand received by the defendant in respect of principal and interest due under the said mortgage.

(c) An enquiry as to value on the 19th day of December, 1927, of all goods in shop at No. 17 Piston Street, and all other personal effects and benefits of all contracts subsisting in relation to the testator's business, together with an account of such of the goods, personal effects, benefit of contracts and cash loan accounts as have been employed in trade, with all profits and interest at the rate of five per cent. per annum with annual rests upon what has been so employed.

After due enquiry and account taken were made and submitted to the Court, the learned Judge found in respect of the enquiries and accounts as ordered above that the defendant was liable for payment of £800 13s. 5d. (including interest) and gave judgment accordingly.

The grounds of appeal are as follows :-

1. The learned Judge was wrong in holding that any money expended in rebuilding or repairing premises No. 10 Leman Street is money expended upon capital improve­ments and must not be taken into account.

2. The learned Judge was wrong in holding that the appellant must be charged with interest accruing due under the mortgage.

3. The learned trial Judge was wrong in making the appellant liable for the full value of the mortgaged property a year after the testator's death instead of the deprecia­tion, if at all.

4. The learned Judge was wrong in holding that the legacy of the goods was not handed over to the respondent.

5. The learned Judge was wrong in assessing the profits on goods sold and goods in stock at 5 per cent. with annual rests.

6. The learned Judge was wrong in holding that the appellant was guilty of a breach of trust in dealing with the shop goods.

7. The learned Judge was wrong in receiving evidence about fresh matters after his order of the 2nd May, 1935, and the appellant was through illness, to the knowledge of the Court, not in a position to refute the allegations and to instruct his solicitor accordingly.

8. That the respondent could not maintain an action against the appellant as executor with regards to goods in the shop ..

9. The verdict is against the weight of evidence.

The first ground, namely, that the learned Judge was wrong in holding that any money expended in rebuilding or repairing premises No. 10 Leman Street was money expended upon capital improve­ments and must not be taken into account deals with the devise to the respondent of the lot of land No. 10 Leman Street for the term of her natural life only, and the learned Judge held that the Will created a settlement with respect to this property the devisee being a tenant for life (Settled Land Act, Section 2 (1) )-that any money expended in repairing and rebuilding was money expended upon capital improvements and that the question of adjustment of such expenditure was a matter between the tenant for life and the re­mainder-man and that no such adjustment can be made without giving the remainder-man an opportunity of being heard. "There­fore" (the learned Judge said) "for present purposes any moneys expended upon capital improvements to the settled estate must be treated as being carried to a suspense account."

After hearing Counsel on both sides I have come to the con­clusion that the learned Judge was wrong in excluding an order for an enquiry in to the adjustments of the amount expended by the executor in repairing the house and building a shop at 10 Leman Street. The executor Shaw spent money according to plaintiff's instructions on building a new shop and on repairs to the house where she was then living (Record, p. 33). A trustee is entitled as of right to full indemnity out of the trust property against all costs, charges and expenses properly incurred (Scott & Milne, 188425 Ch. D. 710 C.A., per Lord Selborne, L.C., at p. 715). He is entitled to be reimbursed out of the trust property for all improvements made and for moneys expended on the preservation of the trust property-  Rowley v. Ginnever, 2 Ch. 1897, p. 503-(Halsbury, Vol. 28, pp. 157to 159) and on a claim against him by a beneficiary for an account  was in this case there can be no abridgment of the account and the Webber, C.J. appellant is entitled to claim an adjustment of the accounts dealing with the property in Leman Street.

On this point I am of opinion that the case should be returned and that the executor should be called upon to file an account of all moneys expended on the repairing, rebuilding and the improvement of the trust property. When these amounts are properly adjusted, the executor will be able to set off any amount due to him from the trust estate.

The second issue before us deals with the amount bequeathed by the testator to the respondent on an alleged mortgage of 12 Hagan Street. Counsel relies on three grounds, which are as follows :­Ground 2. The learned Judge was wrong in holding that the appellant must be charged with interest accruing due under the mortgage.

Ground 3. The learned trial Judge was wrong in making the appellant liable for the full value of the mortgaged property a year after the testator's death instead of the depreciation if at all.

Ground 9. The verdict was against the weight of evidence. 

Now the extraordinary feature about this part of the claim is the non-production of the mortgage deed. Its very existence is in doubt. The parties in this case admit that they have never seen the mortgage and yet they admit that a particular sum was due on the mortgage and a particular sum was due for interest-if there was a mortgage what were the terms as to repayment of the debt and how much was the interest? The testator died a year after he made the Will: we must then presume that on the 1st November, 1926, a mortgage was in existence; but can we presume, in the absence of the deed showing the terms of repayment, that it was in existence on December 19th, 1927, when the testator died? If there was a duty cast on the executor to realise this security by foreclosure, how was he to proceed in the absence of particulars? And if it were not a legal mortgage, the legal estate never became vested in the mortgagee and the testator could not foreclose.

Apart from this, and assuming the existence of a legal mortgage, the case quoted by Counsel for appellant (Re Chapman Cocks v. Chapman, 1896, 2 Ch. 778) lays it down that there is no duty upon an executor to realise a mortgage created by a testator where realisa­tion is not required for any testamentary purpose and the security is not in peril-and even if the security has fallen in value it is not the absolute duty of an executor to ca~ in the mortgage (Re Medland Eland v. Medland, 1889, 41 Ch. D. 476 C.A.). A specific bequest of the mortgage entitles the legatee to the mortgage debt and to the mortgage property subject to the executor's assent-Halsbury, Vol. 21, p. 183. This assent has never been withheld and from the evidence can be implied. I cannot hold that the defendant is liable under this issue except for any amount actually received by him either by way of repayment of principal or by way of interest on the mortgage. In this respect it is admitted that the defendant should be debited with £2 5s. principal repaid. The executor should not be otherwise charged without the property being sold. It is impossible in the absence of this alleged mortgage deed to ask the Court below to direct a sale of the mortgage property. I cannot hold that the defendant has been guilty of a breach of duty nor can I accuse him of a breach of trust or of wilful default. The good faith of ~he executor has never been impugned by the beneficiaries and he cannot be made liable for negligence or wilful default when no such accusa­tions were made against him.

As to the third feature in this case, namely, the liability in respect of the value of goods in the shop bequeathed to the plaintiff­respondent, dealt with by Counsel under Grounds 4, 5, 6, 8 and 9, it is agreed by the appellant's Counsel that qua executor the defen­dant is liable for the sum of £55 4s. cash balance due up to the year 1927. After this year the defendant-appellant handed over the key of the shop to the plaintiff-respondent and ceased to function as executor with regard to this bequest. This is abundantly shown by the evidence. The beneficiary took possession, signed all indents, and received goods in her name. The defendant-appellant's liability under this issue is therefore fixed at £55 4s.

The result of my findings is as follows :-

That this case be remitted to the Court below with a direction:

(1) that an enquiry be taken as to the amounts expended by the executor in improvements, alterations and repairs to the property 10 Leman Street, and that the amount so found be credited to the executor.

(2) that if the sum credited to the executor under direction (1) above is less than £57 9s. (made up of £2 5s. principal repaid under the mortgage and £55 4s. balance due on the shop) the Court below do enter judgment in favour of the plaintiff-respondent for the difference in respect of the balance; but if such sum amounts to £57 9s. or more, then the Court below do enter judgment for the defendant-appellant in respect of these parts of the claim.

Before concluding I must draw particular attention to the form of account which the Court below was asked that the executor should· file. It is the common form of account-there has been no enquiry as to breach of trust or wilful default and the Court cannot vary the common form by adding or by directing an account for wilful default-(Seton's Judgments G Orders, Vol. II, 5th Ed., pp. 985 and 986}.