Between Sir James Webster Wedderburn, Bart, Archibald Murray Douglas, Esq., George Hawkins, Esq., and Mary Wedderburn, his Wife, and Charles Wedderburn Webster, Plaintiffs; and James Wedderburn, since deceased, Andrew Colvile, Alexander Seton, Robert Douglas, and Elizabeth, his Wife, and John Wedderburn, and Sir David Wedderburn, Defendants

[722] Between sir james webster wedderburn, Bart., archibald murray douglas, Esq., george hawkins, Esq., and mary wedderburn, his Wife, and charles wedderburn webster, Plaintiffs; and james wedderburn, since deceased, andrew colvile, alexander seton, robert douglas, and elizabeth, his Wife, and john wedderburn, and sir david wedderburn, Defendants. May 31, June 1, 3, Nov. 5, 1836. [S. C. (affirmed on appeal) 4 My. & Cr. 41 ; 41 E. R. 16 ; 8 L. J. Ch. (N. S.), 177 ; 3 Jur. 596. For subsequent proceedings, see 2 Beav. 208 ; 4 My. & Cr. 585; 41 E. E. 225; 9 L. J. Ch. (S.), 205; 4 Jur. 66, 691; 17 Beav. 158; 18 Beav. 465; i 2 Beav. 84. As to the position of executors dealing with trust money in business, see Turner v. Trelawny, 1841, 12 Sim. 61. Lard Provost of Edinburgh v. Lord Advocate, 1879, 4 App. Gas. 839. As to opening an account long closed, see Allfrey v. Allfrey, 1849, 1 Mac. & G. 93. See also Vyse v. Foster, 1874, L. R. 7 H. L. 324.] Account of deceased partner's estate directed after a lapse of thirty years and repeated changes in the firm, and after several deeds and a release had been executed by the parties beneficially interested ; the surviving partners being the executors of the 808 WEDDERBURN V. WEDDERBURN 2 KEEN 723. deceased partner and guardians of, the cestuis que trust, and the settlements being partial only, and founded on insufficient knowledge, by the cestuis que trust, of the partnership affairs and accounts. A., B,, and C., in 1796, became partners, as merchants, under articles for seven years, and it was provided, that if either partner died in the meantime, the partnership should be determined, as to his share, from the 1st of May following his death; and that thereupon an account should be taken, and, after payment of debts, "payment, appropriation and delivery " should be made between the surviving partners and the executors of the deceased partner, of the residue of the monies, goods, &c., of the partnership. In 1801 B. died, and appointed his wife and surviving partners, A. and C., his executors and guardians of his infant children, who were his residuary legatees. A. and C., only, proved the will, and having caused a valuation and account of the partnership's assets to be made, a balance-sheet was settled, up to the 1st of May 1801, shewing what amount was considered due to the testator's estate (which included outstanding credits to a large amount), and his estate was credited accordingly in the partnership books, and the partnership continued by the surviving partners, but no severance of the assets was made. In May 1809, the eldest son came of age, and an account waa stated by the executors, of the testator's residuary personal estate, but which assumed, as its basis, the valuation and account made on the testator's death : another account was stated of the debts and credits remaining unpaid and uncollected, shewing what was then divisible : and another of the monies expended for the eldest son's maintenance. A deed dated September 1809, between A. and the eldest son, was executed, on which these accounts were endorsed, and A. covenanted for the payment, by instalments, of the share due to the eldest son, so far as the same had been realised ; and the eldest son declared he was "content and satisfied with the disclosures thus far made and accounts thus far given," &c.; and it was provided he should not be prevented from claiming any further share " not as yet received, or fallen in, or accounted for." In 1810, 1815, 1821, 1826, and 1830, changes took place in the partnership firm. There were three younger children, who attained twenty-one respectively, in 1812, 1813, and 1820, when similar accounts, founded on the same basis, were stated to each of them by the executors; and a similar deed of settlement executed by the two former, and a release by the latter, and further divisions of the testator's assets made accordingly. In 181(5 the only other child died an infant, and then also a division of assets was made; and, in 1822, a deed of release was executed by the trustees of the settlement of one of the daughters, in respect of a balance not included in the deed executed by her. The bill was filed in 1831, by the several children and their representatives. Held, that, A. arid C. being executors and guardians as well as surviving partners, and the release being partial only, and founded on insufficient knowledge by the cestuis que trust of the partnership affairs and accounts, the Plaintiffs were not precluded, by their deeds or by lapse of time, from inquiring into the mode in which the assets of the old firm had been dealt with, and claiming a share in the profits arising from the testator's assets having been used in the business of the successive partnerships. The circumstances of this case are so fully detailed in the judgment of the Master of the Rolls, that it is considered unnecessary, here, to state them. [723] Mr. Pemberton, Mr. Koe and Mr. Williamson, for the Plaintiffs. Mr. Tinney, Mr. Kindersley and Mr. Colvile, for the Defendants. The following authorities were relied on:-Cook v. Collingridge (1 Jac. 607), Crawshay v. Collins (15 Ves. 218), Walker v. Symonds (3 Swan. 64-69), Gregory v. Gregory (Cooper, 201; S. C. Jacob, 631), Champion v. Rigby (1 Russ. & M. 539), Chalmers v. Bradley (1 Jac. & W. 51), Dowries v. Gazebrooke (3 Mer. 200), Ex park Lacey (6 Ves. 628), Cockerell v. Cholmondeley (1 R. & M. 425). Nov. 5. the master of the rolls [Lord Langdale]. This is a bill filed by Sir James Wedderburn Webster, and other persons, the children, or representing the children, of David Webster deceased, against James [724] Wedderburn, since deceased, Andrew Colvile and other persons, who are, or represent the surviving partners and 2KEEN72B. WEDDERBURN V. WEDDERBURN 809 the executor of David Webster, or persons interested in the business in which he was concerned, and which was carried on after his death, and also against his widow, and her second husband; and the bill prays a declaration, that the children of David Webster, and those who represent them, are, under the circumstances, entitled to participate in the gains and profits made by carrying on the partnership business since his death : and that an account thereof may be taken, arid that the Plaintiff's share may be paid by the Defendants, Sir David Wedderburu, James Wedderburu, Andrew Colvile and Alexander Seton. The bill also prays a general account of the estate of David Webster, and of the application thereof, and of what is due to the Plaintiffs, under his will. It appears, that in 1796, John Wedderburu atid the testator, David Webster, who had for some time before carried on business as merchants in partnership together, agreed to take the Defendant, Sir David Wedderburu, into partnership with them ; and it was agreed, that the three should carry on business together, for seven years, if they should all so long live. The terms of the partnership were the subject of a. deed, dated the 21st of May 1790, and made between John Wedderbuni of the first part, the testator, David Webster, of the second part, and the Defendant, Sir David Wedderbuni, of the third part; and thereby, it was declared, that during the continuance of the partnership, John Wedderbuni and David Webster should be equally entitled to five-sixth shares of the business;{ and David Wedderburti to one-sixth share thereof; but if either John "Wedderbu.ru, or David Webster should die during the seven years, then, from the 1st of May ensuing [725] such death, the survivor of them should become entitled to two-thirds of the business, and David Wedderbuni to the remaining one-third. It was provided that each of the partners, should at all times during the partnership, and at the determination thereof, enjoy a several share and interest in the business, and the capital thereof, and the profits to be produced thereby, and in the goods and debts thereof, according to their respective interests in the trade; that an account should be yearly made out and stated ; and that if any of the partners should die during the partnership, the executors of the partners dying should stand in his place, and be considered a partner, until the first day of May after the death of the deceased partner, when the partnership, as to such deceased partner, was to determine; but the executors of the deceased partner were not to act in the business, and the surviving partners were not to enter into new engagements, so as to prejudice or affect the executors of the deceased partner, or their interest in the capital. And upon the 1st day of May, next after the death of the deceased partner or in three months afterwards, the surviving partners were to make out a full and perfect account of the partnership business, property and liabilities, and deliver a copy thereof to the executors of the deceased partner; and the executors of the deceased partner, were to meet the surviving partners, and to examine the books; and finally adjust and settle...